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Taranto d/b/a Tundra Taxi v. North Slope Borough (1/19/96), 909 P 2d 354
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
SHEILA TARANTO d/b/a )
TUNDRA TAXI, ) Supreme Court No. S-6176
Appellant, ) Superior Court No.
) 2BA-92-06 CI
) O P I N I O N
NORTH SLOPE BOROUGH, )
) [No. 4310 - January 19, 1996]
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Barrow,
Michael I. Jeffery, Judge.
Appearances: Michael A. Stepovich,
Fairbanks, for Appellant. Joseph N.
Levesque, Barrow, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton, and Eastaugh, Justices.
Evelyn Donovan prepared and displayed a petition which
stated that signatories had knowledge that Sheila Taranto had
sold marijuana, cocaine and liquor. Taranto filed a defamation
action in the superior court at Barrow against the North Slope
Borough. The superior court granted the Borough's motion for
summary judgment. We reverse.
II. FACTS AND PROCEEDINGS
A. Preliminary Facts
Appellant Sheila Taranto lives in Barrow where she owns
a taxi cab business. Sometime during November 1991, Taranto
became aware that a petition regarding her had been drafted and
displayed at the Borough's Administrative and Finance Office
Building. The petition read as follows:
We, the undersigned, have knowledge of
Sheila Taranti [sic], owner of Tundra Taxi,
to sell liquor, marijuana and cocaine. This
will authorize Public Safety to interview us
to document her illegal sale of liquor,
marijuana and cocaine or attest to the fact
that I have been a witness to her illegal
There were lined spaces below for interested persons to write
their names, addresses, and phone numbers. The petition was
prepared by Evelyn Donovan. At the time, Donovan worked as the
Borough Clerk for the North Slope Borough.
Before proceeding to formulate and type the petition
Donovan contacted James E. Christensen, the Director of Public
Safety for the North Slope Borough, to inform him about the
proposed petition. After Christensen "g[a]ve the okay" for the
idea, Donovan typed the petition on her office computer and made
at least one copy of it.1 It was then placed in the front
reception area of the Borough Administration and Finance
Building, where it could be viewed by anyone entering or leaving
the building. The petition remained at this location for
approximately one month. After obtaining twenty-two signatures,
Donovan delivered the petition to Christensen.
B. Prior Proceedings
Taranto brought an action for defamation against North
Slope Borough in the superior court at Barrow. Taranto offered
two theories as to why the Borough should be held liable for the
actions of Donovan. Either (1) the Borough was directly liable
because Donovan was acting in her official capacity as Borough
Clerk and therefore the petition represented official borough
policy, or (2) Donovan was a borough employee and that the
Borough was therefore vicariously liable under the principle of
Following the taking of the depositions of all of the
major actors including Donovan, Taranto, the receptionists, and
the public safety officer, the Borough moved for summary
judgment. The superior court granted the motion and entered a
final order dismissing the action. Taranto appeals, asserting
that she offered sufficient evidence to create a material issue
of fact as to whether or not the Borough should be held liable.
III. STANDARD OF REVIEW
We review a grant of summary judgment using our
independent judgment.2 The "court must determine whether any
genuine issue of material fact exists and whether the moving
party is entitled to judgment on the law applicable to the
established facts. All reasonable inferences of fact from
proffered materials must be drawn against the moving party and in
favor of the non- moving party." Wright v. State, 824 P.2d 718,
720 (Alaska 1992) (citations omitted). "In reviewing an order of
summary judgment, this court must reverse the order if the
pleadings and evidence presented reveal either the existence of
any genuine issues of material fact or that the moving party is
not entitled to summary judgment as a matter of law." Foster v.
Hanni, 841 P.2d 164, 170 (Alaska 1992).
A. The superior court erred when it granted the
summary judgment motion.
As noted previously, Taranto advanced two theories as
to why the Borough should be held liable for the actions of
Donovan. The first is that Evelyn Donovan was an official of the
North Slope Borough, and in that capacity prepared and
facilitated the publication of the defamatory petition against
Taranto. The second theory is that the Borough is liable for the
actions of Donovan under the doctrine of respondeat superior.
For reasons which will be explained, we conclude that under
either theory of recovery, Taranto's opposition to the Borough's
summary judgment motion identified evidence raising genuine
issues of material fact which preclude the grant of summary
judgment in the Borough's favor.
Drawing all reasonable inferences of fact from the
proffered summary judgment materials against the Borough and in
favor of Taranto, the relevant evidence is as follows.
At the times in question Evelyn Donovan held the
position of Borough Clerk for the North Star Borough. She
reported to Borough Mayor Jeslie Kaloak, Sr. together with the
Borough Assembly. Donovan stated in her deposition that the
whole community was concerned about Taranto's sales of drugs and
alcohol, and that the three receptionists who worked in the
Borough office building asked her to type the petition in
Donovan spoke with Jim Christensen, the Borough's
Director of Public Safety, about the petition on two occasions --
before she typed it and after it had been signed by a number of
people. In her first conversation, she called Christensen and
asked if he would like to have a petition with signatures.4
Concerning her first conversation with Christensen, Donovan
testified as follows:
Q Did he [Jim Christensen] give you the
okay for it [the petition], as far as
A Yes, I believe he did, yes, if I
Q I mean, if he would have told you forget
it, don't do it, would you have gone
forward with it?
After securing Christensen's approval of the petition,
Donovan placed the petition at the front receptionist area
located in the Borough Administrative and Finance Office
Building. According to Donovan, everyone saw the petition "when
they left the building[.] [I]t was right there." In her
deposition, Rose Ann Leavitt testified that the petition remained
on the front counter for a period of one month.
In the course of her deposition, Donovan was asked if
she had spoken to the Borough Mayor concerning the petition. She
responded, "Yes, I told him that there was a petition [on Sheila]
down in the front desk." Donovan further testified that the
Mayor "didn't say anything."
After a month had expired, Donovan removed the
petition, now containing twenty-two signatures, from the front
receptionists' desk. She then took the petition to Christensen
at the Public Safety Office. Christensen told Donovan "that they
were going to go ahead and investigate [and] talk to those
individuals that signed the petition." She then left the
petition with him. When asked at her deposition what the purpose
of the petition was, Donovan responded that "they were trying to
run her [Taranto] out of town, because of her selling drugs,
alcohol and prostitution" and that they were trying to institute
a criminal prosecution against her as well as attempting "pull
her taxi license."
Given the record before it on summary judgment, the
superior court concluded that "[e]ven though it is troubling to
consider such a document being available at the reception desk of
the Borough's administrative offices concerning a citizen of the
community, the Court finds that the Borough is not liable in tort
for the private actions of some of its employees."5
B. The Borough's Direct Liability for the Actions of
In regard to Taranto's direct and respondeat superior
theories of liability against the Borough, we initially note that
this court has stated that "the liability of a municipality for
the negligent acts and omissions of its representatives will be
governed by traditional tort principles." Busby v. Municipality
of Anchorage, 741 P.2d 230, 232 (Alaska 1987). Further, though
defamation suits against the state are prohibited by the Tort
Claims Act,6 defamation suits against incorporated units of local
government are not prohibited.7
We now turn to Taranto's direct theory of liability.
The superior court rejected this theory for the following
reasons. First, it concluded that there was no evidence in the
record that any senior official requested that this action be
taken. "At most, the Borough Mayor was aware that the document
was available at the front desk." Second, the area of the
receptionist's desk constituted a "public forum." Third, no
senior Borough official was involved in any way with the
We disagree. Taranto has raised genuine issues of
material fact going to the issue of the Borough's direct
liability. Based upon the evidence outlined above, we believe a
fact-finder could reasonably infer that the formulation and
publication of the petition represented official Borough policy.
The record could reasonably be viewed as indicating that the
Borough, through the actions of the Borough Clerk and its
Director of Public Safety, requested and approved the petition.
In this regard, it is relevant that Donovan asked the Director of
Public Safety if he would like to have a petition with
signatures. The Director of Public Safety then gave his approval
for the undertaking. Further, Donovan states that she would not
have implemented the idea of a petition if the Director had
Donovan's actions were motivated at least in part to
further the Department of Public Safety's goal of criminally
prosecuting Taranto for her alleged illegal activities and to
obtain administrative revocation of her taxi license. The record
further shows that the Borough Mayor knew of the contents and
location of the petition, but took no steps to have the petition
removed or to explicitly disavow its contents.8 Borough
officials allowed the petition to remain at the receptionist's
desk in the Borough Administrative and Financial Office Building
for a period of one month, at a location where anyone leaving the
building could view it.9 We therefore hold that it was error on
the superior court's part to grant summary judgment against
Taranto on her direct liability claim.10
C. The Borough's Vicarious Liability for the Actions
of Donovan Under the Doctrine of Respondeat Superior.
There are numerous cases which state that a
municipality is vicariously liable for the actions of its
employees, agents, and officers under the traditional tort
principle of respondeat superior.11 This court adopted the
Restatement (Second) of Agency [hereinafter Restatement] rule
that an employer will be held liable for both negligent and
intentional torts of its employee, if the employee "is acting in
the scope of his employment."12 In Luth v. Rogers and Babler
Construction Co., 507 P.2d 761 (Alaska 1973), we concluded that
the trier of fact should be guided by the factors discussed in
the Restatement in determining whether employees' actions are
"within the scope of their employment." Id. at 764-65 n.14. We
have approved of Restatement ' 228's provision that
(1) Conduct of a servant is within the scope
of employment if, but only if:
(a) it is the kind he is employed to
(b) it occurs substantially within the
authorized time and space limits;
(c) it is actuated, at least in part, by
a purpose to serve the master; and
(d) if force is intentionally used by
the servant against another, the use of
force is not unexpectable by the master.13
Restatement ' 229 further illuminates this concept.14
(1) To be within the scope of the employment,
conduct must be of the same general nature as
that authorized, or incidental to the conduct
(2) In determining whether or not the
conduct, although not authorized, is
nevertheless so similar to or incidental to
the conduct authorized as to be within the
scope of employment, the following matters of
fact are to be considered:
(a) whether or not the act is one
commonly done by such servants;
(b) the time, place, and purpose of the
(c) the previous relations between the
master and the servant;
(d) the extent to which the business of
the master is apportioned between
(e) whether or not the act is outside
the enterprise of the master or, if
within the enterprise, has not been
entrusted to any servant;
(f) whether or not the master has reason
to expect that such an act will be done;
(g) the similarity in quality of the act
done to the act authorized;
(h) whether or not the instrumentality
by which the harm is done has been
furnished by the master to the servant;
(i) the extent of departure from the
normal method of accomplishing an
authorized result; and
(j) whether the act is seriously
In Doe v. Samaritan Counseling Center, 791 P.2d 344
(Alaska 1990), we rejected the Restatement view that each of the
' 228 factors must be satisfied before an employer can be held
liable. Id. at 347 (citing Luth). Instead, "the Second
Restatement's factors are relevant considerations but are not
determinative of the respondeat superior analysis." Id.
Finally, we have repeatedly stated that the
determination of whether an employee is acting within the scope
of employment is a fact-specific issue requiring case-by-case
determination. For example, in Fruit v. Schreiner, 502 P.2d 133
(Alaska 1972), we affirmed the trial court's decision to deny the
employer's motion for a judgment notwithstanding the verdict. In
so doing we observed that "no categorical statement can delimit
the meaning of 3scope of employment3 once and for all times.
Applicability of respondeat superior will depend primarily on the
findings of fact in each case." Id. at 141.
Similarly, in Luth this court overturned the superior
court's decision to grant plaintiff's motion for a directed
verdict on the theory of respondeat superior. Once again we
alluded to the factual nature of the "scope of employment"
inquiry and stated that even where the facts are undisputed, when
"conflicting inferences can be drawn from undisputed facts" the
question is properly left to the jury. Luth, 507 P.2d at 764-65
(citing Restatement (Second) of Agency ' 228 cmt. d (1958)).
Taranto makes several arguments with respect to the
application of the principles discussed above to the present
facts. Taranto argues: (1) that the superior court's conclusion
that Donovan was acting "to assist the [Borough] Department of
Public Safety" could lead to the inference that such "assistance"
would also be part of the "official duties" of the Borough Clerk;
(2) that the petition was drafted during work time and on
equipment owned by the Borough; and (3) that Donovan's stated
purpose of seeking Taranto's conviction demonstrates that she was
actuated by a desire to serve her employer in its crime fighting
capacity. From these facts, Taranto argues, it is possible to
infer that she was acting within the scope of her employment and
therefore, under Luth and Doe, summary judgment would be
Resolving all of the factual disputes in favor of
Taranto, we conclude that the superior court erred in granting
summary judgment to the Borough on Taranto's respondeat superior
theory of liability. There is no question that Taranto met the
second prong of the Restatement ' 228(1)(b) test in that the
formulation, typing, approval, and circulation of the petition
occurred substantially within authorized time and space limits.
Further, from the evidence previously mentioned it is
inferable that Donovan's activities in composing the petition and
circulating it were actuated, at least in part, by a purpose to
serve the Borough's Department of Public Safety in carrying out
its crime detection, prevention, and prosecutorial functions.
Lastly, the evidence permits a finding that the Borough's
Department of Public Safety encouraged the creation and
circulation of the petition by Donovan, and that the Borough
Mayor, with full knowledge of the contents of the petition and
its location, failed to initiate any steps to halt the Borough
Clerk's activities in regard to the petition. It is logical to
infer from this evidence that Donovan's activities in connection
with the drafting, circulation, and the presentation of the
petition come within her duties as Borough Clerk. Thus, we
conclude that as to the claim of liability based on respondeat
superior, Taranto has also raised genuine issues of material fact
which go to both the first and third prongs of the Restatement
' 228(a) and (c), and under the criteria set forth in ' 229(2).15
The superior court's grant of summary judgment to the
Borough is REVERSED.16
1 There is also evidence that Donovan changed the wording
in the later draft so as to indicate that Taranto's activities
included the selling of cocaine, rather than prostitution.
2 Because appellate review is de novo, Taranto's
assertion that the superior court improperly construed Alaska
Civil Rule 56 in granting the Borough's motion for summary
judgment is moot.
3 The three receptionists, Rose Ann Leavitt, Frances
Leavitt, and Sunnie Dunbar, denied in their depositions that they
had requested Donovan to prepare and circulate a petition
accusing Taranto of serious criminal activities.
Donovan admitted that the petition originated in her
office and that she typed it. She testified, "I typed it for the
girls because they asked me, because they were complaining about
Sheila, and so I agreed to type it for them."
4 Prior to her initial conversation with Jim Christensen,
Donovan was contacted by a Borough Public Safety investigator who
asked her if she would "buy something from Sheila [Taranto],
because Public Safety was trying to bust her." Donovan declined
to participate in any controlled buy from Taranto.
5 The superior court found Donovan spoke with Jim
Christensen prior to her preparation of the petition to "make
sure that Public Safety would accept this type of list from the
community. When the document had been signed, she also delivered
it to Director Christensen." The superior court further found
that the petition was "placed inside a folder - at the desk in
such a way that anyone leaving the Borough building could see
6 See AS 09.50.250(3).
7 See AS 09.65.070(a), which reads:
Except as provided in this section, an action
may be maintained against a municipality in
its corporate character and within the scope
of its authority.
According to AS 01.10.060, "3Municipality3 means a . . . home
rule or general law Borough." AS 09.65.070(d)(2) provides as
An action for damages may not be brought
against a municipality or any of its agents,
officers, or employees if the claim
. . . .
(2) is based upon the exercise or
performance or the failure to exercise or
perform a discretionary function or duty by a
municipality or its agents, officers, or
employees whether or not the discretion
involved is abused.
In the case at bar, the Borough has not argued that any of the
decisions or actions taken in relation to the petition came
within the protective ambit of AS 09.65.070(d)(2). We therefore
express no opinion on the merits of any such potential defense.
8 The United States Supreme Court has held that a
municipal corporation may be held liable for the official acts of
its officers in 28 U.S.C. ' 1983 claims. Brandon v. Holt, 469
U.S. 464, 471-72 (1985). At least one state court has
characterized this liability as "direct." Ziegler v. Kirschner,
781 P.2d 54, 59 n.2 (Ariz. App. 1989).
9 Donovan's repeated statements to the effect that when
she typed the petition she was acting as a private citizen and
not in the capacity of Borough Clerk are not determinative.
Issues of credibility aside, in light of the facts detailed
above, we hold that Taranto has raised a genuine issue of
material fact as to the question of what capacity Donovan was
acting in when she composed, typed, obtained approval for,
circulated, and presented the petition to Jim Christensen, the
Borough's Director of Public Safety.
10 In reaching this holding, we reject the superior
court's reasoning that no high-ranking "senior official" of the
Borough requested the creation of the petition and that the
Borough Administration was not involved in the preparation of the
petition. The summary judgment record simply contradicts both of
these grounds. Further, the superior court's public forum
rationale has no applicability given the portions of the factual
record we have heretofore mentioned.
11 In the context of non-constitutional tort claims, state
courts will only allow liability to be transferred from the agent
(the official) to the principal (the municipal government) when
the "scope of employment" requirements of respondeat superior
have been met. See, e.g., Mary M. v. City of Los Angeles, 814
P.2d 1341 (Cal. 1991); Lane v. Yamamoto, 628 P.2d 634 (Haw. App.
1981); Silva v. State, 745 P.2d 380 (N.M. 1987); see also 63
C.J.S. ' 757 Municipal Corporations ("[T]he rule of respondeat
superior should not be applied to a municipal corporation to any
greater extent than to a private corporation or individual. A
municipality is not liable unless the tort of its officers or
employees was committed under circumstances rendering the
doctrine of respondeat superior applicable . . . .") (footnotes
12 Williams v. Alyeska Pipeline Service Co., 650 P.2d 343,
349 (Alaska 1982) (citing Restatement (Second) of Agency ' 245
13 Restatement (Second) of Agency ' 228 (1958) quoted in
Doe v. Samaritan Counseling Center, 791 P.2d 344, 347 (Alaska
14 In Luth, we stated that both '' 228 and 229 "provide
the basis for proper instructions" to a jury on this issue.
Luth, 507 P.2d at 764-65 n.14.
15 Given this record, it ultimately may be determined that
the Borough ratified the actions of the Borough Clerk, even if
assuming her actions were otherwise unauthorized. See Sea Lion
Corp v. Air Logistics of Alaska, Inc., 787 P.2d 109 (Alaska
1990); Alaska Continental Bank v. Anchorage Commercial Land
Associates, 781 P.2d 562 (Alaska 1989).
16 Inherent in our disposition is the further conclusion
that the Borough's reliance on a qualified privilege protecting
private citizens' communications with the police as a basis for
upholding the superior court's grant of summary judgment against
Taranto on her respondeat superior claim lacks merit. Nothing in
the relevant facts of this record justifies application of the