Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ramsey Barton v. City of Valdez (1/21/2022) sp-7579

Ramsey Barton v. City of Valdez (1/21/2022) sp-7579

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                          

           corrections@akcourts.gov.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



RAMSEY  BARTON,                                                  )  

                                                                 )    Supreme  Court  No.  S-17691  

                                Appellant,                       )  

                                                                                                                                 

                                                                 )    Superior Court No. 3VA-18-00016 CI  

           v.                                                    )  

                                                                                          

                                                                 )    O P I N I O N  

                 

CITY OF VALDEZ,                                                  )  

                                                                                                             

                                                                 )    No. 7579 - January 21, 2022  

                                Appellee.                        )  

                                                                 )  



                                                                                                              

                     A             

                        ppeal from the Superior Court of the State of Alaska, Third  

                                                                                             

                     Judicial District, Valdez, Patrick J. McKay, Judge.  



                                                                                                                

                     Appearances:  Cris Rogers, Rogers & Wirschem LLC, and  

                                                                                                                 

                     Brian Heady, Law Office of Brian Heady, Anchorage, for  

                                                                                                           

                     Appellant.  Michael D. Corey and Laura S. Gould, Brena,  

                                                                                  

                     Bell & Walker, P.C., Anchorage, for Appellee.  



                                                                                                          

                     Before:  Bolger, Chief Justice, Winfree, Maassen, Carney,  

                                                

                      and Borghesan, Justices.  



                                                 

                     BORGHESAN, Justice.  



I.         INTRODUCTION  



                                                                                                                                        

                     Ramsey Barton sued the City of Valdez after she was severely injured by  



                                                                                                                                      

falling from a tire swing overhanging a cliff in an undeveloped area of a city park.  The  



                                                                                                                                         

swing was not built by the City, and Barton alleged the City was negligent in failing to  



                                                                                                                               

remove it. The superior court assumed on summary judgment that the City had imputed  


----------------------- Page 2-----------------------

knowledge of the swing.                                      Yet it concluded that because there was no evidence the City                                                                             



had a policy to inspect or remove hazards from undeveloped areas of the park, the City                                                                                                                



was entitled to discretionary function immunity. The court therefore dismissed Barton's                                                                                                    



lawsuit against the City.                                    



                                The purpose of discretionary function immunity is to prevent "judicial                                                                                     



intrusion   on   the   policy-making   powers   committed   to   the   legislative   and   executive  

                          1  Because there are no conceivable policy reasons for declining to remove the  

branches."                                                                                                                                                                                               



unauthorized swing - a human-made hazard that was known, easily accessible, and  

                                                                                                                                                                                                       



simple to remove - the failure to remove it is not protected by discretionary function  

                                                                                                            



immunity.  We therefore reverse the superior court's decision and remand for further  

                                                                                                                                                                                               



proceedings.  

                                 



II.             FACTS AND PROCEEDINGS  

                                                    



                A.              Facts  

                                The Dock Point Trail is a short loop trail located near Valdez.2                                                                                          From the  

                                                                                                                                                                                                         



trailhead, the trail moves up a short steep hill before dropping down to a small meadow;  

                                                                                                                                                                                          



fromthere, wooden boardwalks lead to two viewing platforms overlooking Harbor Cove  

                                                                                                                                                                                                    



and the Port of Valdez to the south.  These platforms are known as the East and West  

                                                                                                                                                                                                    



Overlooks.  The trail then loops back to the trailhead after a gradual descent.  The map  

                                                                                                                                                                                                     



                1               Haight v. City & Borough of Juneau                                                      , 448 P.3d 254, 257 (Alaska 2019).                                                    



                2  

                                                                                                                                                                                                        

                                This  recreation area is described in different ways by materials in the  

                                                                                                                                                                                                

record. The City of Valdez Parks & Recreation Department refers to it only as the "Dock  

Point Trail" in its Summer Trail Map Guide (as of April 2015).                                                                                           A photograph showed                 

                                                                                                                                                                                                  

that there was an official sign in 2016 that called the area "Dock Point."  A 2019 travel  

                                                                                                                                                                                  

guide also referred to the area as "Dock Point Park." Because of this factual discrepancy,  

                                                                                                                                  

we refer to the recreation area overall as "Dock Point Area" and the marked main trail  

                                      

as "Dock Point Trail."  



                                                                                                     -2-                                                                                            7579
  


----------------------- Page 3-----------------------

                                                                                                                              

of the trail shows no side trails or paths off this loop other than a private road to the east,  



                                                                                      

which is marked by a locked gate and "no trespassing" signs.  



                                                                                                                           

                    The trail is gated and marked by a sign.  Part of the trail is a treated timber  



                                                                                                                        

walkway over marshland.  The City's maintenance department erects summer signage,  



                                                                                                                                  

including "Bear Aware" signs and interpretive signs that discuss the flora and fauna in  



                                                                                                                                      

the area.  A substantial portion of the trail is on a roadway, which the City maintains.  



                                                                                                                                

The maintenance department also clears brush from the main trail and maintains the  



                                                                                                       

wooden structures (e.g., fence lines and decking) on and along the trail.  



                                                                                                                                

                    About 73 yards away from the East Overlook is a clearing with a bluff. The  



                                                                                                                                

path to the clearing, while not an official part of the trail, is well worn and trampled; but  



                                                                      

unlike the trail to the East Overlook, there is no boardwalk, handrail, or fence built on  



                                                                                                                                  

it.  At the time of Barton's injury, a tire swing hung by a bright red rope from a tree in  



                                                                                                                               

the clearing; the tire could swing out beyond the edge of the bluff.  The City did not  



                                  

install the tire swing.  



                                                                                                                            

                    In May 2015 Barton, then a junior at Valdez High School, was at Dock  



                                                                                                                             

Point Area with three of her friends. The group went to the clearing, where Barton stood  



                                                                                                                          

by the edge of the bluff and took pictures of the view.  Meanwhile, one of her friends  



                                                                              

climbed onto the tire swing, which another friend then started pushing.  The friend on  



                                                                                                                             

the swing bumped into Barton, who was still taking pictures.  Barton fell over the bluff  



                                                                                                                          

and approximately 70 feet down to the rocks and water below.  She suffered serious  



                                                                                   

injuries that have left her partially paralyzed and in a wheelchair.  



                                                                                                                              

                    After rescuing Barton, a police officer went back to the scene and took  



                                                                                                                              

follow-up photographs.   By the time he had returned to the scene, the Valdez Fire  



                                                    

Department had removed the tire swing.  



                                                                -3-                                                         7579
  


----------------------- Page 4-----------------------

          B.        Proceedings  



                    Barton sued the City, alleging that it was liable for her injuries due to its  

                                                                                                                              



negligent failure to take down the tire swing.  In response the City claimed immunity  

                                                                                                                   



under   AS   09.65.200,   which   provides   immunity   from   ordinary   negligence   on  

                                                                                                                            



"unimproved land." After the parties concluded discovery, the City moved for summary  

                                                                                                                    



judgment.  



                    Less  than  a  week  before  oral  argument  was  to  be  held  on  the  City's  

                                                                                                                        



                                                                                                                           3  

summary judgment motion, this court decided Haight v. City & Borough of Juneau .   In  

                                                                                                                               



that case we held that the municipal government's decision to not regulate safety on a  

                                                                                                                                

popular lake was protected by discretionary function immunity.4                                     The superior court  

                                                                                                            



requested additional briefing on discretionary function immunity, which the parties  

                                                                                                                       



provided.  



                    At oral argument the City argued that its failure to remove the tire swing  



was a non-decision protected by discretionary function immunity.  Barton argued that  

                                                                                                                            



the City had an affirmative duty to her to maintain the clearing and abate the tire swing,  

                                                                                                                        



which was a known hazard for Dock Point Area users. She also argued that any decision  

                                                                                                                      



to leave the tire swing in place was an "operational" decision outside the scope of  

                                                                                                                              



discretionary function immunity.  

                                   



                    The superior court issued its oral decision on the record. It ruled that there  

                                                                                                                          



was a dispute of material fact as to whether the City knew of the swing and therefore, for  

                                                                                                                              



the purposes of summary judgment, assumed that the City had imputed knowledge of its  

                                                                                                                               



existence.  But the court granted summary judgment for the City, observing that there  

                                                                                                                          



was "no evidence that the City of Valdez maintained anything other than the main trail  

                                                                                                                            



          3         448  P.3d  254.  



          4         Id.  at  259,  261.  



                                                               -4-                                                           7579  


----------------------- Page 5-----------------------

and the overlooks[, or] . . . ever considered any policy to inspect, maintain, or remove   



hazards on any similar situated land or off the trail systems on any city owned land."                                                                                                                                                                  It  



reasoned that because the City had not adopted a policy of inspecting and maintaining     



parts of the Dock Point Area off the developed trail, it could not be held liable for failure                                                                                                                                              



to remove the swing. The court made no findings or conclusions about whether the City                                                                                                                                                             



was immune against negligence occurring on "unimproved land" under AS 09.65.200.                                                                                                                                                                                 



Barton moved for reconsideration, which the superior court denied, and now appeals.                                                                                                                                                                          



III.	               STANDARD OF REVIEW                                     



                                       Whether a particular act or omission is protected by discretionary function                                                                                                                    

immunity is a question of law that we review de novo.                                                                                                            5  Grants of summary judgment  



                                                                                    6  

                                                                                                                                                                                                                                              

                                                                                             In  doing  so  "[w]e  review  the  facts  in  the  light  most  

are  also  reviewed  de  novo. 



                                                                                                                                                                                                                         

 favorable to the non-moving party and draw all factual inferences in the non-moving  



                                           7  

                                                                                                                                                                                                                                                        

party's favor."                                 The trial court's ruling is affirmed "when there are no genuine issues of  



                                                                                                                                                                                                                                                            8  

                                                                                                                                                                                                                                                                 

material fact and the prevailing party . . . [is] entitled to judgment as a matter of law." 



IV.	                DISCUSSION  



                                                                                              

                    A.	                A Governmental Decision Is Not Entitled To Discretionary Function  

                                                                                                                     

                                       Immunity Unless It Is A "Planning" Decision That Implicates Policy  

                                        Considerations.  



                                                                                                                                                                                                                                                  

                                       Alaskalawgenerally allowsdamagesclaims againstmunicipalities but bars  



                                                                                                             

claims for damages "based upon the exercise or performance or the failure to exercise  



                    5                  Steward v. State                               , 322 P.3d 860, 862 (Alaska 2014) (citing                                                                                Kiokun v. State,               



Dep't of Pub. Safety                                        , 74 P.3d 209, 212 (Alaska 2003)).                                              



                    6                   Christensen v. Alaska Sales&Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).  

                                                                                                                                                                                                                                           



                    7                  Jovanov v. State, Dep't of Corr., 404 P.3d 140, 145 (Alaska 2017) (quoting  

                                                                                                                                                                                                                                     

Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013)).  

                                                                                                                                                      



                    8                  Id. (alterations in original) (quoting Kalenka, 305 P.3d at 349).  

                                                                                                                                                                                                                 



                                                                                                                           -5-	                                                                                                                7579
  


----------------------- Page 6-----------------------

or perform a discretionary function or duty by a municipality or its agents, officers, or                                 



                              9  

employees . . . ."                                                                                                             

                                  We refer to this immunity as discretionary function immunity.  



                                                                                                                                            

                        The purpose of this immunity is to "preserve[] the separation of powers"  



                                                                                                                                                 

- to guard "against judicial intrusion on the policy-making powers committed to the  

                                                                10   "[T]hese powers include assessing the costs and  

                                                                                                                                                     

legislative and executive branches." 



benefits of a proposed course of action, budgeting, and distributing scarce government  

                                                                                                                                      

resources."11   Immunizing such actions "prevents the judicial branch from adjudicating  

                                                                                                                                     

the soundness of policy decisions that it lacks the institutional capacity to make."12                                                                  It  

                                                                                                                                                        



also "protects public resources against unforeseeable and overwhelming liability that  

                                                                                                                                                    

mightresult frommakinggovernmentalpolicydecisions generallysubject todamages."13  

                                                                                                                                                             



                        To distinguish those decisions that are protected by discretionary function  

                                                                                                                                            



                                                                                                                                                        14  

immunity from those that are not, we have adopted the "planning-operational test."                                                                           

                                                                                                                                               



This "test requires courts to 'isolate those decisions sufficiently sensitive' to separation  

                                                                                                                                         



            9           AS   09.65.070(a),   (d)(2);  see   also  Freeman   v.   State,   705   P.2d   918,   920  



(Alaska   1985)  ("[L]iability  is  the  rule;  immunity  is  the  exception.").  



            10          Haight  v.   City   &  Borough  of  Juneau,  448  P.3d  254,  257 (Alaska  2019)  



(citing  Guerrero  ex  rel.  Guerrero  v.  Alaska  Hous.  Fin.  Corp.,  123  P.3d  966,  976  (Alaska  

2005)).  



            11          Id.  



            12          Id. ; see also Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983)  

                                                                                                                                                 

("The judicial  branch  lacks the fact-finding ability of the legislature, and the  special  

                                                                                                                                              

expertise of the executive departments.").  

                                                



            13          Haight, 448 P.3d at 257.  

                                                             



            14          Id. at 256 (quoting Japan Air Lines Co. v. State, 628 P.2d 934, 936 (Alaska  

                                                                                                                                             

 1981)).  



                                                                           -6-                                                                    7579
  


----------------------- Page 7-----------------------

of powers concerns and 'protect those decisions worthy of protection without extending                                                                  



                                                                                          15  

the cloak of immunity to an unwise extent.' "                                                   



                           Decisions  entitled  to  protection  are  "planning"  decisions  that  entail  

                                                                                                                                                               



" 'formulation of basic policy' including consideration of financial, political, economic,  

                                                                                                                                                        

or social effects of the policy."16   "[D]ecisions that rise to the level of planning or policy  

                                                                                                                                                                



formulation  will  be  considered  discretionary  acts  which  are  immune  from  tort  

                                                                                                                                                                   

liability . . . ."17  

                                 



                           By  contrast,  "decisions  that  are  merely  operational  in  nature,  thereby  

                                                                                                                                                            



implementing policy decisions, will not be considered discretionary" and are therefore  

                                                                                                                                                          

"not  .  .  .  shielded  from  liability."18                                  "Operational"  decisions  typically  involve  the  

                                                                                                                                                                     

"[n]ormal day-by-day operations of the government."19  For example, "when a planning  

                                                                                                                                                         



decision has been made to follow a particular course of action, decisions carrying out that  

                                                                                                                                                                     

course of action and governed by . . . standards are unprotected operational decisions."20  

                                                                                                                                                                             



"Such decisions are unprotected because they do not involve policy judgments and  

                                                                                                                                                                    



              15          Id.  at  257  (quoting  Wainscott  v.  State,  642  P.2d  1355,  1356  (Alaska  1982)).  



              16           Steward   v.   State,   322   P.3d   860,   863   (Alaska   2014)  (citing   Estate   of  



Arrowwood  ex  rel.  Loeb  v.  State,  894  P.2d  642,  644-45  (Alaska   1995)).   



              17          Haight,  448  P.3d  at  256  (quoting  Japan  Air  Lines  Co.,  628  P.2d  at  936).  



              18          Id.  at  256-57  (quoting  Japan  Air  Lines  Co.,  628  P.2d  at  936).  



              19           Steward,  322 P.3d  at  863 (quoting State  v. Abbott , 498  P.2d 712,  720  

                                                                                                                                                                    

(Alaska 1972)).  

                  



             20           Haight, 448 P.3d at 258.  

                                                                   



                                                                                   -7-                                                                           7579
  


----------------------- Page 8-----------------------

because reviewing the government's adherence to standards falls within the traditional                                              



                                              21  

competence of the courts."                         

                                                                                                       22   Because almost any act  

                       This test is admittedly "somewhat imprecise."                                                                            

                                                                                    



involves some discretion, whether a decision is planning or operational is evaluated in  

                                                                                                                            

light of its nature and the totality of the circumstances.23  

                                                                                                   



                       Even  if  the  decision  challenged  is  of  the  planning  type  - because  it  

                                                                                                                                                  

involves "consideration of financial, political, economic, or social effects"24  - it may  

                                                                                                                                              



not be immune if the government has nevertheless affirmatively assumed the duty to act  

                                                                                                                                                



in a certain way.  

                               



                       [O]nce it is determined that the decision at issue is of the type  

                                                                                                                       

                       entrusted to the planning level of government, a claimant  

                                                                                                               

                       must show that an affirmative assumption of duty has been  

                                                                                                                      

                       made by the [government] in order to have a claim for relief  

                                                                                                                      

                       for alleged operational negligence in performing that duty.[25]  

                                                                                                                  



            21         Id.  



            22         Id.  at  257.  



            23         Id.  



            24         Steward,  322  P.3d  at  863  (citing  Estate  of  Arrowwood  ex  rel.  Loeb  v.  State,  



894  P.2d  642,  644-45  (Alaska   1995).   



            25         Indus.  Indem. Co. v.   State,   669   P.2d   561,   566   (Alaska   1983);   see   also  



Haight,   448   P.3d   at   259   ("[W]e   conclude   -   as   did   the   superior   court   -   that   not  

regulating   lake   safety   was   a   planning   decision   protected   by   discretionary   function  

immunity.   Absent  the  assumption  of  an  affirmative  duty,  the  City  may  not  be  held  liable  

for  the  decision  not  to  act.").  



                                                                        -8-                                                                 7579
  


----------------------- Page 9-----------------------

Such  an assumption of duty need not be express:                                                       An assumption of duty may                                 be  



discerned if the government has adopted regulations or standards requiring it to act in a                                                                           

                       26   Failure to adhere to those regulations or standards would not be immune.  

certain way.                                                                                                                                                           



                          We  recently  applied  this  framework  in  Haight  v.  City  & Borough  of  

                                                                                                                                                                 



               27  

Juneau .             In Haight a teenager died in a motorized watercraft accident on Auke Lake,  

                                                                                                                                                           

which was managed in part by the municipality.28                                                       The teenager's mother sued the  

                                                                                                                                                                



municipality, claiming that it negligently failed to take measures to ensure the safe  

                                                                                                                                                              

operation of motorized watercraft on the lake.29                                               The municipality claimed that it was  

                                                                                                                                                              

protected from suit by discretionary function immunity.30                                                      We agreed.31               We concluded  

                                                                                                                                                  



that "not regulating lake safety  was  a  planning decision protected by discretionary  

                                                                                                                                            



functionimmunity"becauseit "involved basicpolicyconsiderationsregarding allocation  

                                                                                                                                                    

                                                                                               32   We  also  considered  whether  the  

of  scarce  resources  and  which  uses  to  allow."                                                                                                           

                                                                                

municipality had nevertheless assumed the duty to regulate lake safety.33   Observing that  

                                                                                                                                                               



state  law  did  not  require  the  municipality  to  regulate  lake  safety  and  that  the  

                                                                                                                                                               



municipality's  own  ordinances  and  land  use  plans  did  not  address  lake  safety,  we  

                                                                                                                                                               



             26           See Haight           , 448 P.3 at 259-260.
         



             27          Id . at 254.
     



             28  

                                     

                         Id. at 255-56.
  



             29          Id.  at 256.
   



             30          Id.
  



             31  

                                     

                         Id. at 261.  



             32  

                                                     

                         Id. at 259-60.  



             33          Id.  



                                                                                -9-                                                                         7579
  


----------------------- Page 10-----------------------

                                                                                                                                        34  

concluded that the municipality had not affirmatively assumed the duty to regulate.                                                           



                                                                                                                                  

For  that  reason  the  municipality  was  immune  from  liability  for  its  lack  of  safety  



                                                                                                               

regulation at the lake:  "Unless dictated by a plan or regulation, the decision not to act  



                                                                                                                                    

is fundamentally discretionary, as are its consequences, because scarce resources mean  



                                                                                                                                         

that not every possible course of action can be funded and because of the threat of  



                                                                      35  

                                                       

unpredictable and overwhelming liability." 



                      Applying this framework to Barton's case, we must first consider whether  

                                                                                                                                



not removing the tire swing is a planning-type decision - the kind of decision that  

                                                                                                                                      



entails  balancing  policy  considerations.                           If  so,  then  the  City  is  immune  unless  it  

                                                                                                                                         



affirmatively assumed the duty to remove the swing.  If not, then discretionary function  

                                                                                                                               



immunity does not apply.  

                                            



           B.	        Assuming The City Knew Of The Tire Swing's Existence, Its Failure  

                                                                                                                                

                      To  Remove  The  Swing  Is  Not  A  Planning  Decision  Entitled  To  

                                                                                                                                       

                      Immunity.  



                      Determining whether a decision is planning or operational requires first  

                                                                                                                                      



identifying the precisedecision at issue. The superior court identified the City's decision  

                                                                                                                               



as whether to maintain and inspect areas of the park outside of the developed site.  It  

                                                                                                                                          



reasoned that although the "removal of hazards" is generally an operational decision, the  

                                                                                                                                        



decision whether to maintain a given area is a planning decision. Absent "evidence that  

                                                                                                                                       



the City of Valdez ever considered whether to inspect and maintain areas off the main  

                                                                                                                              



Dock Point Trail," the court reasoned that the City's failure to do so was entitled to  

                                                                                                                                         



immunity.  But because the superior court assumed for purposes of summary judgment  

                                                                                                                             



that the City in fact knew of the swing's existence, the more precise way to describe the  

                                                                                                                                        



City's decision is whether to remove a known hazard on the City's property.  

                                                                                                                              



           34        Id.    



           35        Id.  at  260.  



                                                                   -10-                                                                 7579  


----------------------- Page 11-----------------------

                                 Our decisions have recognized that whether to abate a known hazard is                                                                                          



 often a planning-type decision because it involves policy considerations.                                                                                                              In  Estate of   



Arrowwood ex rel. Loeb v. State                                                  we held that the State's refusal to close a highway due                                                                      



to   icy   conditions   was   a   planning-level   decision  entitled   to   immunity   because   this  



                                                                                                                                                                                                                   36  

 decision requires officials to balance safety against the need for reliable transportation.                                                                                                                             



And in Freeman v. State we held that although the State had assumed a duty to maintain  

                                                                                                                                                                                                 



the Dalton Highway in a safe condition, its decision to forgo dust abatement procedures  

                                                                                                                                                                                            



was entitled to immunity because it involved "such basic policy factors as the cost of  

                                                                                                                                                                                                                 



 such a program, alternative uses for the money . . . , and . . . environmental detriments  

                                                                                                                                              

which would be inherent in the several dust control alternatives . . . ."37  

                                                                                                                                                                      



                                 The budgetary implications of a decision are often enough to make it a  

                                                                                                                                                                                                                    



planning decision entitled to immunity.  We have held multiple times, for instance, that  

                                                                                                                                                                                                              

the State's decision to not install a guardrail is one of policy.38   We similarly have found  

                                                                                                                                                                                                         



                 36               894 P.2d 642, 646 (Alaska 1995) ("If we ruled [against immunity], the                                                                                                        



result   would   be   that   state   officials  would  be   forced   to   close   state   highways   upon  

receiving notice of the first accident which resulted from adverse weather and road                                                                                                                        

 conditions, or else risk incurring liability for failure to do so. Given the long winters and                                                                                                                

harsh weather conditions which occur throughout most of Alaska, such a decision would                                                                                                                   

make road travel at best unreliable.").                      



                 37              705 P.2d 918, 920 (Alaska 1985).  

                                                                                                      



                 38              E.g.,  Steward  v.  State,  322  P.3d  860,  863-64  (Alaska  2014)  (finding  

                                                                                                                                                                                                  

 discretionary immunity applied to State's decision not to reinstall a removed guardrail);  

                                                                                                                                                                                             

 Wells v. State, 46 P.3d 967, 969 (Alaska 2002) ("[T]he State is immune from suit for  

                                                                                                                                                                                                               

 claims based on its decision to install or not install guardrails." (citations omitted));  

                                                                                                                                                                                             

Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983) ("[T]he question of whether  

                                                                                                                                                                                                   

 or not to install a guardrail . . . was one of policy, and . . . an affirmative decision to go  

                                                                                                                                                                                                                

 ahead with the installation had to be made at the discretionary level in order to advance  

                                                                                                                                                                                                  

the chain of events to the operational stage." (footnote omitted)).  

                                                                                                                                         



                                                                                                      -11-                                                                                                7579
  


----------------------- Page 12-----------------------

that decisions on whether to install sequential stop lights or traffic safety devices were         



                                                                       39  

policy decisions and not operational ones.                                  



                      By contrast,  once a decision  is made to abate a particular  hazard,  the  

                                                                                                                                             



decisions involved in implementing that policy are typically deemed operational.  In  

                                                                                                                                              



State v. Abbott we affirmed a decision that the State was not entitled to immunity for  

                                                                                                                                             



inadequately sanding an icy curve despite a policy of "work[ing] overtime if necessary  

                                                                                                                                  

to keep sharp curves well sanded."40  We reasoned:  

                                                                                       



                       Once the initial policy determination is made to maintain the  

                                                                                                                       

                      highway through the winter by salting, sanding and plowing  

                                                                                                              

                       it, the individual district engineer's decisions as to how that  

                                                                 

                       decision should be carried out in terms of men and machinery  

                                                                                                           

                       is made at the operational level; it merely implements the  

                                                                                                                      

                      basic policy decision.[41]  

                                             



Unfortunately "the dividing line between planning and operational decisions may often  

                                                                                                                                          

be hard to discern."42                  Because "almost any act, even driving a nail, involves some  

                                                                                                                         



'discretion'  .  .  .  decisions  made  while  implementing  a  planning  decision  are  not  

                                                                                                                                            



           39         See,  e.g.,   Wainscott  v.  State,  642  P.2d  1355,  1357  (Alaska   1982)  (holding  



that  decision  to  not  install  sequential  traffic  light  at  intersection  was  a  planning  decision  

because  placement  of  traffic  safety  devices  depended  on  priorities  set  by  the  Department  

of  Transportation  and  safety  engineers); Rapp  v.  State,  648  P.2d   110,   110-11  (Alaska  

 1982)   (applying   Wainscott  to  decision  to  install   stop   sign  instead  of   sequential  traffic  

light).  



           40         498 P.2d 712, 716-17 (Alaska 1972).  

                                                                                       



           41         Id. at 722.  

                                 



           42          Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 977  

                                                                                                                                            

(Alaska 2005).  

               



                                                                     -12-                                                                7579
  


----------------------- Page 13-----------------------

                                                                              43  

necessarily   unprotected   operational   decisions."                               The   distinction   "depends   on   the  



                                                            44  

particular circumstances" of the case.                          



                     Although the distinction between planning and operational decisions is not  

                                                                                                                                      



always clear, this much seems plain:  Assuming the City was aware of the tire swing's  

                                                                                                                        



existence, the decision whether to remove the swing does not implicate any of the policy  

                                                                                                                                 



considerations that would justify discretionary function immunity.  A "decision not to  

                                                                                                                 



act is protected because limited budgets entail tradeoffs between competing needs -  

                                                                                                                                      

decisions involving basic policy considerations."45                                The City has not identified and we  

                                                                                                                                      



cannot conceive of any policy considerations at play in deciding whether to cut down an  

                                                                                                                                       



easily accessible, unauthorized, and hazardous tire swing.  

                                                                                   



                     Taking the evidence in the light most favorable to Barton, as we must on  

                                                                                                   



summary judgment, there is no indication that the swing would have been difficult, risky,  

                                                                                                                                  



or expensive to remove. The swing was only 73 yards away from the main trail, and the  

                                                                                                                                      



trail to it was easily visible.  The swing consisted of a tire hanging by a rope from a tree.  

                                                                                                                                    



Immediately after Barton was injured, the Fire Department simply cut down the swing.  

                                                                                                                                



Although it is easy to see how abating some hazards in undeveloped parklands would be  

                                                                                                                                       



expensive, time-consuming, or dangerous for staff - and thus implicate "tradeoffs" and  

                                                                                                                                     

"basic policy considerations"46  - it is hard to see how abating this particular hazard  

                                                                                                                                



would do so.  

                       



           43        Haight  v.   City   &  Borough of  Juneau,  448  P.3d  254,  257   (Alaska  2019)  



(citing  Abbott ,  498  P.2d  at  720;  Kiokun  v.  State,  Dep't  of  Pub.  Safety,  74  P.3d  209,  218  

(Alaska  2003);  Guerrero,   123  P.3d  at  977).  



           44        Id.  



           45        Id. at 258.  

                               



           46        Id .  



                                                                  -13-                                                            7579
  


----------------------- Page 14-----------------------

                                                                                                                                                                         47  

                           Furthermore, the tire swing was an unauthorized human-made hazard,                                                                                as  



opposed to a natural one or a structure intentionally created to serve the park's purpose.                                                                                         



Deciding whether to cut down a particular tree, abate dangerous wildlife, or place signs                                                                               



near   scenic   but   dangerous   features   like   cliffs   involves   aesthetic,   ecological,   and  

                                                                                                                                       48      Park  managers'  

recreational   tradeoffs   that   may   make   these   decisions  immune.                                                                                  



decisions about whether to create structures like public use cabins and mountain bike  

                                                                                                                                                                         



trails may involve similar policy considerations.  Such policy considerations are not  

                                                                                                                                                                           



implicated by this unauthorized and hazardous rope swing.  

                                                                                                                           



                           Thesuperior courtcorrectlyreasoned that agovernment's decision whether  

                                                                                                                                                                  



to maintain particular areas of parkland or to inspect those areas for hazards is generally  

                                                                                                                                                               



a planning decision because it entails "tradeoffs between competing needs - decisions  

                                                                                                                                                               

                                                                               49   Holding the state and municipal governments  

involving basic policy considerations."                                                                                                                

                                               



liable  for  failure  to  discover  hazards  in  undeveloped  areas  of  parkland  would  be  

                                                                                                                                                                            



improper "judicial intrusion on the policy-making powers committed to the legislative  

                                                                                                                                                     



              47           The undisputed evidence is that the City did not install the tire swing.                                                                                



Several city officials including a park maintenance supervisor for the City claimed to not                                                                                 

know of its existence.       



              48            Cf. Lam v. United States, 979 F.3d 665, 681 (9th Cir. 2020) (observing that  

                                                                                                                                                                          

the  decision  to  cut  down  a  tree  is  susceptible  to  competing  policy  considerations,  

                                                                                                                                                  

including scenery and wildlife preservation); Chadd v. United States, 794 F.3d 1104,  

                                                                                                                                                                      

 1113  (9th  Cir.  2015)  (observing  that  the  National  Park  Service's  decision  to  not  

                                                                                                                                                                          

exterminate a "problematic" mountain goat was susceptible to a policy to protect the  

                                                                                                                                                                           

animal "to facilitate the public's enjoyment of the species"); Merry v. Nat'l Park Serv.,  

                                                                                                                                                                      

985 F. Supp. 2d 90, 95 (D.D.C. 2013) (finding that the National Park Service's decision  

                                                                                                                                                                 

to minimize the amount of signage so "as not to detract from aesthetics of the historic  

                                                                                                                                                                  

location" of Ford's Theater fell under the discretionary function exception to the Federal  

                                                                                                                                                                   

Torts Claims Act).  

                            



              49           Haight, 448 P.3d at 258.  

                                                                                



                                                                                    -14-                                                                               7579
  


----------------------- Page 15-----------------------

and   executive   branches"   and   could  result   in   "unforeseeable   and   overwhelming  



               50  

liability."                                                                                                              

                   But because the City was deemed aware of the rope swing, the decision  



                                                                                                                               

facing it was not whether to scour undeveloped areas for unknown hazards; it was  

                                                               51  That decision is not the type that implicates  

                                                                                                                      

                                                     

whether to remove that particular hazard. 

policy considerations of any kind and thus is not entitled to immunity.52  

                                                                                             



V.        CONCLUSION  



                    We REVERSE the trial court's decision and REMAND the case for further  

                                                                                                                            



proceedings consistent with this opinion.  

                                                   



          50        Id.  at 257.      



          51  

                                                                                                                         

                     It is worth noting that the City's Parks Director at the time of the accident  

                                                                                                                                  

testified that the maintenance staff took down unauthorized zip lines that had been set up  

                            

on City property.  



          52         Given  the procedural  posture  of  the  case,  the  superior  court  correctly  

                                                                                                                       

assumed, in light of what it described as "contested facts," that the City had "imputed  

                                                                                                                       

notice" of the tire swing.  Our analysis of discretionary function immunity rests on this  

                                                                                                                                

assumption. We express no opinion whether the City is entitled to discretionary function  

                                                                                                                         

immunity if it is later found that the City had no notice of the tire swing's existence.  

                                                                                                                                   



                                                               -15-                                                          7579
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC