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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sunny Haight, Personal Representative of the Estate of Savannah Cayce v. City & Borough of Juneau (9/6/2019) sp-7406

Sunny Haight, Personal Representative of the Estate of Savannah Cayce v. City & Borough of Juneau (9/6/2019) sp-7406

          Notice:  This opinion is subject to 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, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                    



SUNNY  HAIGHT,  Personal                                           )  

Representative  of  the  Estate  of                                )    Supreme Court No. S-16903  

                                                                                                        

SAVANNAH  CAYCE,                                                   )  

                                                                   )    Superior  Court  No.   1JU-14-00706  CI  

                               Appellant,                          )  

                                                                                            

                                                                   )    O P I N I O N  

          v.                                                       )  

                                                                                                                 

                                                                   )    No. 7406 - September 6, 2019  

                                         

CITY & BOROUGH OF JUNEAU,                                          )
  

                                                                   )
  

                               Appellee.                           )
  

                                                                   )
  



                                                                                                           

                     Appeal from the Superior Court of the State of Alaska, First  

                                                                                               

                     Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                                                       

                     Appearances:  Mark Choate, Choate Law Firm LLC, Juneau,  

                                                                                                          

                     for Appellant.   Lael A.  Harrison, Faulkner Banfield, P.C.,  

                                        

                     Juneau, for Appellee.  



                                                                                                   

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

                                         

                     and Carney, Justices.  



                                         

                     WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                                 

                     A minor died in a motorized watercraft accident on a lake managed in part  



                                                                                                                     

by a municipality.  The minor's mother sued, claiming that the municipality negligently  



                                                                                                                                 

failed to take measures to ensure safe operation of motorized watercraft on the lake.  The  



                                                                                                                      

municipality  sought  summary judgment  based  on  discretionary  function  immunity,  


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

 which the superior court granted.                                                             Because the superior court correctly applied the                                                                              



 doctrine of discretionary function immunity, we affirm its decision.                                                                                       



 II.              FACTS AND PROCEEDINGS                   



                  A.                Facts  



                                    Auke Lake sits within the City and Borough of Juneau. The State owns the                                                                                                                   



 lake but shares management authority with the City.                                                                                               State law at the relevant time                                         



 allowed motorized watercraft on the lake as long as they did not degrade or damage the                                                                                                                                       

 lake or its surroundings.                                       1                                                                                                            

                                                                     A State land use plan also covered the lake, but the plan did  

                                                                                                          2      Like  the  State's  land  use  plan,  the  City's  

                                                                                                                                                                                                                    

 not  appear  to  regulate  watercraft  use. 



 comprehensive land use plan required only that the lake be managed to preserve the  

                                                                                                                                                                                                                              

 area's natural features.3                                        The City did not have a separate land use plan for the lake.  

                                                                                                                                                                                                                                



                                    In 2006 the State took the position that "conflicts between lake users,  

                                                                                                                                                                                                                      



 property owners and residents are properly addressed through local government control  

                                                                                                                                                                                                                    



 and enforcement." In 2007 the City passed an ordinance governing motorized watercraft  

                                                                                                                                                                                                            



 use on the lake, restricting areas and hours of operation, size, and wake height.  The  

                                                                                                                                                                                                                          



 ordinance did not impose speed limits, horsepower limits, or traffic patterns, although  

                                                                                                                                                                                                               



 the City received comments and testimony urging that the ordinance do so.  

                                                                                                                                                                                                 



                                    In 2009 the City's planning department recommended replacing a gravel  

                                                                                                                



 boat launch near the lake's outlet with  a concrete launch near a visitor parking lot.  The  

                                                                                                                                                                                                                            



                  1                  11 Alaska Administrative Code 96.020(a)(1)(F) (2008).                                                                           



                  2                 JUNEAU   STATE  LAND  PLAN, A                                                    LASKA DEP 'T OF NAT. R                                           ES., D          IV.  OF  LAND  



 RES. ASSESSMENTS &DEV. (1993), dnr.alaska.gov/mlw/planning/areaplans/juneau/pdf/             

                                                           

juneau_state_lan.pdf.  



                  3                 COMPREHENSIVE  PLAN, C                                              ITY  & B             OROUGH OF                      JUNEAU, C                   MTY. D              EV. D         EP 'T  



 141-57(Oct.                       20, 2008), www.juneau.org/cddftp/documents/CompPlan2008_Chapter10.     

 pdf.  



                                                                                                                -2-                                                                                                      7406
  


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 accompanying   report   acknowledged  comments   urging   the   department   to   consider  



 possible increased motorized watercraft use and accompanying safety concerns, but the                                                                                                                                                                                                          



 report stated that the City assembly would have to enact an ordinance to address public                                                                                                                                                                                             



 safety issues created by any additional traffic.                                                                                                             The recommendation was approved, and                                                                                            



 the new boat launch was completed in 2011.                                                                                                                 



                                               In June 2012 teenager Savannah Cayce and a friend were riding in an                                                                                                                                                                               



 inflatable   raft   pulled   by   a   motorized   watercraft   on   the   lake.     The   operator,   Robert  



 Herring, later stated that he was traveling about 40 to 45 miles per hour.                                                                                                                                                                               Shawn Miller   



 was operating another motorized watercraft nearby, making "deep, quick turns to try and                                                                                                                                                                                                       



 roll" it. Herring turned his watercraft, causing the inflatable raft carrying Cayce to swing                                                                                                                                                                                         



 into Miller's watercraft.                                                           Cayce suffered a serious head injury and died two days later.                                                                                                                                      



                        B.                     Proceedings  



                                               Cayce'smother, Sunny Haight,aspersonalrepresentativeofCayce's estate,  

                                                                                                                                                                                                                                                                                      



 sued the City, Herring, and Miller for negligence, seeking damages for Cayce's suffering  

                                                                                                                                                                                                                                                                            



 and wrongful death.  Haight contended that the City owed a duty of care to lake users  

                                                                                                                                                                                                                                                                                        



 and that it breached its duty by failing to take adequate measures to reduce safety hazards  

                                                                                                                                                                                                                                                                                 



 created by motorized watercraft.  She asserted that the City should have established a  

                                                                                                                                                                                                                                                                                                      



 speed limit, a horsepower limit, and traffic patterns for motorized watercraft and should  

                                                                                                                                                                                                                                                                                    



 have posted warning signs regarding safe use of the lake.  The City sought summary  

                                                                                                                                                                                                                                                                          



judgment based on discretionary function immunity, which bars claims for damages  

                                                                                                                                                                                                                                                                            



 against municipalities for acts and omissions falling within discretionary governmental  

                                                                                                                                                                                                                                                           

 functions.4                                The superior court granted the City summary judgment, reasoning that  

                                                                                                                                                                                                                                                                                            



                        4                      See   AS 09.65.070(d)(2) ("An                                                                                action for damages may not be brought                                                                             



 against a municipality or any of its agents, officers, or employees if the claim . . . is based                                                                                                                                                                                       

 upon the exercise or performance or the failure to exercise or perform a discretionary                                                                                                                                                                   

                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                 -3-                                                                                                                                      7406
  


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

whether to take the measures Haight suggested was a policy decision to be made by the                                                                              



City assembly and that such a policy decision was protected by discretionary function       



immunity.  



                          Haight appeals.   



III.         STANDARD OF REVIEW                   



                          "We review a grant of summary judgment de novo, 'affirming if the record                                                           



presents no genuine issue of material fact and if the movant is entitled to judgment as a                                                                              



                                5  

matter of law.' "                                                                                                                                                     

                                    "In conducting de novo review, we will 'adopt the rule of law that is  



                                                                                                                    6  

                                                                                                                   

most persuasive in light of precedent, reason, and policy.' " 



IV.          DISCUSSION  



                                                                                                        

             A.           Overview Of Discretionary Function Immunity  



                                                                                                                                                                   

                          Alaska law generally allows damagesclaims against municipalities, but the  



                                                                                                                                                       

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



                                                                                                                                              

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



                                               7 

                       

officers, or employees."   A companion statute waives the State's sovereign immunity  



                                                                                                     8 

                                                                                                        We have adopted the "planning- 

except for claims involving discretionary functions. 



                                                                                                                                                        

operational test" to distinguish decisions that are protected by discretionary function  



             4            (...continued)  



                        

function . . . .").  



             5  

                                                                                                                                                             

                          Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012)  

                                                                                                                                                          

(quoting Beegan v. State, Dep't of Transp. &Pub. Facilities, 195 P.3d 134, 138 (Alaska  

2008)).  



             6            State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1059  

                                                                                                                                                               

(Alaska 2005) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  

                                                                                                                                         



             7            AS 09.65.070(d)(2).  

                                  



             8            AS 09.50.250(1).  

                                  



                                                                                 -4-                                                                           7406
  


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                                                                        9  

immunity from those that are not.                                          We have articulated the test as follows:                           



                            Under the "planning-operational" test . . . decisions that rise                                                         

                            to   the   level   of   planning   or  policy   formulation   will   be  

                             considered discretionary acts which are immune from tort                                                               

                            liability, whereas decisions                                  that are merely operational in                               

                            nature, thereby implementing policy decisions, will not be                                                                 

                             considered discretionary and therefore will not be shielded                                                  

                             from liability.              [10]  



                             This test is somewhat imprecise;11  "almost any act, even driving a nail,  

                                                                                                                                                                              

involves  some  'discretion,'  "12                                        and  we  have  stated  that  decisions  made  while  

                                                                                                                                                                           

implementing aplanning decisionarenotnecessarilyunprotectedoperationaldecisions.13  

                                                                                                                                                                                          

Whether a decision is planning or operational depends on the particular circumstances.14  

                                                                                                                                                      



                             "We look to the purposes underlying discretionary function immunity" to  

                                                                                                                                                                                    



              9             Japan  Air  Lines  Co.  v.  State,  628  P.2d  934,  936  (Alaska   1981).  



              10            Id .  



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



(Alaska  2005)  ("[T]he  dividing  line  between  planning  and  operational decisions  may  

often  be  hard  to  discern  .  .  .  .");   Wainscott  v.  State,  642  P.2d   1355,   1356  (Alaska   1982)  

("We  recognize  that  this  'planning  level-operational  level'  test  is  somewhat  inexact.").  



              12            State v. Abbott , 498 P.2d 712, 720 (Alaska 1972).  

                                                                                                                         



              13            See Kiokun v. State, Dep't of Pub. Safety, 74 P.3d 209, 218 (Alaska 2003)  

                                                                                                                                                                            

("[T]he decision whether to initiate a search and rescue operation remains one of policy.  

                                                                                                                                                                                          

Some,  although  not  necessarily  all,  decisions  made  after  a  search  and  rescue  is  

                                                                                                                                                                                   

commenced may be  operational.");  Guerrero,  123 P.3d  at 977 ("[T]he department's  

                                                                                                                                                            

undeniable  duty  to  act  safely  did  not  automatically  shift  all  of  its post-undertaking  

                                                                                                                                                   

decisions to the operational side of the planning/operational dichotomy.").  

                                                                                                                                 



              14             Guerrero, 123 P.3d at 978 ("[T]he determination turns on the nature of the  

                                                                                                                                                                                  

specific decision at issue.").  

                                           



                                                                                         -5-                                                                                 7406
  


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                                                                                                    15  

guide   our   application   of   the   planning-operational   test.                                       "Discretionary   function  



immunity 'preserve[s] the separation of powers' " by guarding against judicial intrusion                                              

                                                                                                                                         16 these  

onthepolicy-making                   powers committedtothelegislativeand                               executivebranches;                    



powers  include  assessing  the  costs  and  benefits  of  a  proposed  course  of  action,  

                                                                                                                                         

budgeting, and distributing scarce government resources.17                                               Because policy questions  

                                                                                                                                     



such as where to allocate resources or which course of action to follow may arise after  

                                                                                                                                             



the  initial  planning  decision  is  made,  we  distinguish  between  decisions  involving  

                                                                                                                                   



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

                                                                                                                                    



or social effects of the policy" and those involving "[n]ormal day-by-day operations of  

                                                                                                                                                  

the  government."18                    The  former  are  protected  planning  decisions;  the  latter  are  

                                                                                                                                               

unprotected  operational  decisions.19                             In  other  words,  the  planning-operational  test  

                                                                                                                                              



requires courts to "isolate those decisions sufficiently sensitive" to separation of powers  

                                                                                                                                         



concerns and "protect those decisions worthy of protection without extending the cloak  

                                                                                                                                            



            15         Id.  at 976.   



            16         Id.  (quoting  Estate of Arrowwood ex rel. Loeb v. State                                    , 894 P.2d 642, 645         



(Alaska 1995)).  

                



            17         Id . at 977; Freeman v. State, 705 P.2d 918, 920 (Alaska 1985) (holding  

                                                                                                                                       

decision not to institute dust-control measures on Dalton Highway was immune because  

                                                                                                                                        

it was based on cost-benefit calculation "involving such basic policy factors as the cost  

                                                                                                                                              

of such a program, alternative uses for the money that would be needed for such a  

                                                                                                                                                   

program, and the physical and environmental detriments which would be inherent in the  

                                                                                                                                                

several dust control alternatives under consideration"); Indus. Indem. Co. v. State, 669  

                                                                                                                                               

P.2d 561, 564-65 (Alaska 1983) ("Decisions regarding the allocation of scarce resources  

                                                                                                                                     

are usually discretionary, and thus immune from judicial inquiry.").  

                                                                                                   



            18         Steward v. State, 322 P.3d 860, 863 (Alaska 2014) (first quoting Estate of  

                                                                                                                                                  

Arrowwood , 894 P.2d at 644-45; then quoting Abbott , 498 P.2d at 720).  

                                                                                                                    



            19         Id.  



                                                                        -6-                                                                 7406
  


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

of immunity to an unwise extent."                            20  



                                                                                                                                                   

                        Discretionaryfunctionimmunitysimilarlypreventsthejudicial branch from  



                                                                                                                                                        

adjudicating the soundness of policy decisions that it lacks the institutional capacity to  

           21      And  discretionary  function  immunity  protects  public  resources  against  

make.                                                                                                                                        



unforeseeable and overwhelming liability that might result from making governmental  

                                                                                                                                   

policy decisions generally subject to damages.22  

                                                                   



                        Again,  whether  a  decision  is  planning  or  operational  depends  on  the  

                                                                                                                                                     



particular circumstances.  At one end of the spectrum, we consistently have held that  

                                                                                                                                                    



when the government does not have an affirmative duty to act, it cannot be held liable  

                                                                                                                      

for the decision not to act.23                       We have held that, absent a plan or regulation dictating  

                                                                                                                                           



            20          Wainscott v. State              , 642 P.2d 1355, 1356 (Alaska 1982).                    



            21  

                                                                                                                                              

                        Guerrero, 123 P.3d at 976-77 ("As we have acknowledged, '[t]he judicial  

branch lacks the fact-finding ability of the legislature and the special expertise of the                                                             

                                                                                                                                           

executive departments.' " (alteration in original) (quoting Indus. Indem. Co., 669 P.2d  

     

at 563)).  



            22          Id . at 977.  

                                   



            23          See Indus. Indem. Co., 669 P.2d at 566 ("[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 state in order to  

                                                                                                                                                        

have a claim for relief for alleged operational negligence in performing that duty.");  

                                                                                                                                             

Jennings v. State, 566 P.2d 1304, 1311 n.28, 1312 (Alaska 1977) (holding that State's  

                                                                                                                       

decision not to lower speed limit at location where child was struck crossing road was  

                                                                 

protected because location was not within school zone, which would have mandated  

                                                                                                                                          

lower speed limit).  

                        



                        We note that the presence of an affirmative duty does not necessarily mean  

                                                                                                                                                  

all actions taken pursuant to that duty are unprotected. For example, in Freeman v. State  

                                                                                                                                                   

we held that the State's assumption of the duty to maintain the Dalton Highway did not  

                                                                                                                                                     

mean its decision not to institute dust-control measures was unprotected, because that  

                                                                                                                                                    

decision involved policy considerations about cost and environmental effects. 705 P.2d  

                                                                                                                                                   

                                                                                                                                   (continued...)  



                                                                           -7-                                                                    7406
  


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

otherwise, decisions not                to install safety devices such as highway guardrails or sequential                     



                                                                                                           24  

traffic lights at specific locations are protected planning decisions.                                                                      

                                                                                                               The decision not to  



                                                                                                                                           

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



                                                                                                                                      

decisions involving basic policy considerations - and because allowing fault for every  



                                                                                                                                         

instance  in  which  the  government  does  not  act  might  result  in  unpredictable  and  



                                                     25  

                                        

unforeseeable damages liability. 



                      At the other end of the spectrum, we have held that when a planning  

                                                                                                                                



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

                                                                                                                                          



course  of  action  and  governed  by  design  standards  are  unprotected  operational  

                                                                                                                            



           23         (...continued)  



                                                                                                                                           

918, 920 (Alaska 1985). The important distinction is that absent an affirmative duty, the  

                           

failure to act is protected.  



           24         See Indus. Indem. Co., 669 P.2d at 563 ("[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)); Wells v. State, 46 P.3d 967,  

                                                                                                                                        

969 (Alaska 2002) ("[U]nder this court's precedent, the State is immune from suits for  

                                                                                                                                           

claims based on its decision to install or not install guardrails."); Wainscott, 642 P.2d at  

                                                                                                                                             

 1357 (holding that decision not to install sequential traffic light at intersection was  

                                                                                                                   

planning decision because placement of traffic safety devices depended on priorities set  

                                                                                                                                           

by 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).  

                              



           25         See Indus. Indem. Co., 669 P.2d at 565-66 ("[A] decision by the state to  

                                                                                                                                            

place guardrails along the Glenn Highway would necessarily affect the state's ability to  

                                                                                                                                            

provide other governmental services.  We would be engaging in precisely the type of  

                                                                                                                                            

policy evaluation that the discretionary function exception is designed to foreclose if we  

                                                                                                                                           

were to inquire into the wisdom of the state's guardrail policy in this case. . . .  We do  

                                                                                                                               

not think that a decision by the Department to fund only a portion of a proposed project  

                                                                                                                                    

renders the state vulnerable to lawsuits with respect to every proposal not carried out.").  

                                                                                                                                     



                                                                     -8-                                                              7406
  


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

                        26  

 decisions.                     Such   decisions   are   unprotected   because   they   do   not   involve   policy  



judgments and because reviewing the government's adherence to standards falls within                                                                                                             

 the traditional competence of the courts.                                                       27  



                                                                                                                                                                                                       

                 B.	             The Decision Not To Regulate Or MitigateSafety Concerns About The  

                                Lake  



                                                                                                                                                                                                           

                                Haight appeals the superior court's ruling that the City's decision not to  



                                                                                                                                                                                                     

 regulate safety on the lake was protected by discretionary function immunity.   She  



                                                                                                                                                                                                    

 concedes that building a new boat launch was a protected planning decision.   But,  



                                                                                                                                                                                                       

 contending that the new boat launch created safety hazards on the lake, she argues that  



                                                                                                                                                                                         

 whether   to   mitigate   those   safety   hazards   was   part   of   the   planning   decision  



                                                                                                                                                                             

 implementation and therefore was an unprotected operational decision.  



                                                                                                                                                                                         

                                Haight first cites State, Department of Transportation & Public Facilities  



                          28  

                                                                                                                                                                                               

 v. Sanders                    for the proposition that discretionary function immunity does not protect  



                                                                                                                                                                                                            

 decisions  relating  to  safety  hazards  created  by  a  planning  decision.                                                                                                 In  Sanders  a  



                                                                                                                                                                                                     

 motorcyclist sued the State for injuries sustained when he collided with a baggage train  



                26              See Japan Air Lines Co. v. State                                               , 628 P.2d 934, 936, 938 (Alaska 1981)                                             



 (holding State liable for construction of airport taxiway narrower than width prescribed                                                                                              

by federal design standards);                                             Guerrero, 123 P.3d at 978 ("[O]ur cases indicate that                                                                       

 discretionary function immunity would bar the claim unless the project at issue . . . was                                                                                                          

 governed by clearly established standards that mandated . . . installation [of specific                                                                                                     

 traffic control devices].").       



                27              See State v. I'Anson, 529 P.2d 188, 194 (Alaska 1974) ("[R]esolution of  

                                                                                                                                                                                                           

 questions such as whether or not the state properly striped or marked a portion of  

                                                                                                                                                                                                          

 highway as it relates to the state's duty of care . . . presents facts that courts are equipped  

                                                                                                                                                                                          

 to evaluate within traditional judicial fact-finding and decision-making processes.").  

                                                                                                                                                                            



                28               944 P.2d 453 (Alaska 1997).  

                                                                                      



                                                                                                     -9-	                                                                                           7406
  


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

                                                                                                                             29  

using a public road near the Anchorage International Airport.                                                                     Airport officials had              



allowed baggage trains to regularly use the road even though the trains did not comply                                                                        

                                                                                                                   30   But the Department, as the  

with Department of Public Safety road vehicle regulations.                                                                                                             



entity charged with overseeing airports, had promulgated another regulation granting  

                                                                                                                                                            

airport officials discretion whether to enforce vehicle regulations.31                                                                  We stated:  

                                                                                                                                                 



                           [T]he discretionary function exception protects the planning  

                                                                                                                                 

                           decision to allow aircraft support vehicles to use [the road],  

                                                                                                                                  

                          but it does not protect the manner in which [a]irport officials  

                                                                                                                                            

                           implement that decision.  In this case, if those officials did  

                                                                                                                                  

                           not take reasonable steps to implement the planning decision  

                                                                                                                                [32]  

                                                                                                                    

                           in a non-negligent manner, the State may be liable. 



                                                                                                                                                                         33  

                           Relying on Guerrero ex rel. Guerrero v. Alaska Housing Finance Corp.,  

                                                                                                                                                             



Haight also argues that the City could have posted signs near the new boat launch  

                                                                                                                                                               



warning of the lake's dangers and that its decision not to do so thus was an unprotected  

                                                                                                                                                     



operational decision.  In Guerrero the parents of a child struck by a car while crossing  

                                                                                                                                                            



a street sued the State, arguing that implementing safety measures such as an overpass,  

                                                                                                                                                          



traffic lights, and warning signs was an unprotected operational decision carrying out the  

                                                                                                                                                                       

planning decision to construct the thoroughfare.34                                                      We stated that not every decision  

                                                                                                                                                            



following from the initial decision to undertake a project is necessarily operational and  

                                                                                                                                                                     



explained that a decision implementing a project is operational only when - at least  

                                                                                                                                                                   



             29           Id.  at 455.   



             30           Id . at 455, 458.       



             31           Id. at 457.  

                                       



             32           Id . at 459 (footnotes omitted).  

                                                                     



             33            123 P.3d 966 (Alaska 2005).                  



             34           Id . at 969, 977-78.  

                                                 



                                                                                  -10-                                                                            7406
  


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

regarding traffic control measures - it is "governed by clearly established standards                                           



                       35  

mandating" it.                                                                                                                         

                           We concluded that the decision not to install an overpass or traffic lights  



                                                                                                                               

was not operational because doing so was not mandated by traffic safety standards  



                                                                                                                             

adopted by the State and that the decision not to post warning signs was operational  

                                                                                             36   We observed that allowing  

                                                                                                                                 

because relevant safety standards mandated such signs. 



liability for the latter decision did not implicate the purposes underlying discretionary  

                                                                                                                          



function immunity:  Posting required signs does not involve significant policy choices  

                                                                                                                                   



or the allocation of significant resources, and the standards, if followed, would not  

                                                                                                                                          

 subject the State to unforeseeable or overwhelming liability.37  

                                                                                       



                      Although Haight argues that the decision not to regulate or to mitigate lake  

                                                                                                                                         



 safety concerns was an unprotected decision implementing the decision to build the new  

                                                                                                                                         



boat launch, we 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.  Haight presented no evidence that the City had an affirmative duty to regulate  

                                                                                                                                  

lake safety; the State in fact did not require the City to regulate lake safety,38  and the  

                                                                                                                                          



City's ordinances at the time of Cayce's death did not address lake safety.  The City's  

                                                                                                                 



           35         Id .  at  978.  



           36         Id .  at  979-80,  982.  



           37         Id .  at  982.  



           38         JUNEAU   STATE  LAND  PLAN,  ALASKA DEP 'T  OF  NAT.  RES.,  DIV.  OF  LAND  



RES.ASSESSMENTS  &DEV.  (1993),  dnr.alaska.gov/mlw/planning/areaplans/juneau/pdf/  

                                     

juneau_state_lan.pdf.  



                                                                    -11-                                                               7406
  


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                                                                                                                      39  

land use plans did not address lake safety,                                                                                and the report recommending construction                                             



of the new boat launch stated that an ordinance would be needed to regulate lake safety.                                                                                                                                                              



And as the City notes, several safety measures Haight proposes were rejected when the                                                                                                                                                      



assembly passed the 2007 ordinance.                                                                       



                                      Haight tries to avoid the absence of a statutory duty to regulate lake safety                                                                                                               



by relying on                          Sanders  and framing lake safety hazards as resulting from implementing                                                                                              



the decision to build the new boat launch. But the analogy to                                                                                                           Sanders  is inapposite. Our                                     



conclusion in                          Sanders, that the decision to allow baggage trains on roadways could not                                                                                                                           



be negligently implemented, implicitly recognized an affirmative duty to ensure vehicle                                                                                                                                        

                                                    40      There is no comparable regulation or duty in this case.  

safety on the road.                                                                                                                                                                                    



                                      The decision not to regulate safety on the lake is akin to decisions not to  

                                                                                                                                                                                                                                             



install  highway  guardrails  or  sequential  traffic  lights  at  specific  locations.                                                                                                                                         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 unpredictable and overwhelming  

                                                                                                                                                                                                         



liability.  As the City stresses, holding that the decision not to regulate watercraft safety  

                                                                                                                                                                                                                                  



                   39                 COMPREHENSIVE  PLAN, C                                                  ITY  & B             OROUGH OF                        JUNEAU, C                      MTY. D              EV. D           EP 'T  



 141-57 (Oct.20,2008),www.juneau.org/cddftp/documents/CompPlan2008_Chapter10.       

pdf.  



                   40                See  944  P.2d  453,  458  (Alaska  1997)  ("[T]he  State's  practice  of  not  

                                                                                                                                                                                                                                         

enforcing vehicle safety regulations . . . is essentially a decision to open [the road] to  

                                                                                                                                                                                                                                             

aircraft support vehicles that do not comply with applicable vehicle safety regulations.").  

                                                                                                                                                                                                                                                      

The  circumstances  in  Sanders  were  unusual;  the  Department  of  Public  Safety  

                                                                                                                                                                                                                                                      

promulgated vehicle safety regulations, but it also allowed airport officials not to enforce  

                                                                                                                                                                                                                              

them.  Id. at 455.  Given the regulations, it seems unlikely that the Department meant to  

                                                                                                                                                                                                                                              

allow airport officials to ignore vehicle safety on airport roads.  Rather it seems that the  

                                                                                                                                                                                                                                           

Department meant to allow airport officials to use their judgment in ensuring vehicle  

                                                                                                                                                                                                                              

safety, which might entail varying from the Department's regulations.  

                                                                                                                                                                    



                                                                                                                    -12-                                                                                                             7406
  


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

 on the lake was an unprotected operational decision following from the decision to build                                                                                                                                                           



 a new boat launch would open the door to damages liability for the inevitable failure to                                                                                                                                                                     



 address all of the potentially limitless and unforeseeable safety consequences occurring                                                                                                                                              



 downstream from the decision to build the boat launch.                                                                                                                 



                                        We also conclude that the decision not to mitigate lake safety would be                                                                                                                                             



protected even if, as Haight argues, that decision were part of implementing the decision                                                                                                                                                  



to   build   the   new   boat   launch.    We   previously   have   stated   that   not   every   decision  



 implementing an initial planning decision is operational for purposes of discretionary                                                                                                                                     

                                                          41  We look instead at the purposes underlying immunity to determine  

 function immunity.                                                                                                                                                                                                                   



whether  a  decision  is  planning  or  operational.                                                                                                   The               City  persuasively  argues  that  

                                                                                                                                                                                                                                                       



whether to take the kinds of safety measures Haight proposed was a planning decision  

                                                                                                                                                                                                            



because it involved basic policy considerations regarding allocation of scarce resources  

                                                                                                                                                                                                                                        



 and  which  uses  to  allow.                                                             The  decision  not  to  take  safety  measures  cannot  be  

                                                                                                                                                                                                                                                           



 characterized  as  the  kind  made  during  the  "normal  day-by-day  operations  of  the  

                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                      42   On this  

 government" that we have concluded were unprotected operational decisions.                                                                                                                                                                              

                                                                                                                                                                                                         



point Haight's analogy to Guerrero is also inapposite.  We concluded in Guerrero that  

                                                                                                                                                                                                                                                        



the  State  could  be  held  liable  for  not  posting  warning  signs  because  those  signs  

                                                                                                                                                                                                                                                   



 specifically were mandated by safety standards the State adopted and were therefore  

                                                                                                                                                                                                                                        

 operational.43                             In this case there are no regulations mandating that the City post signs or  

                                                                                                                                                                                                                                                             



 otherwise regulate lake safety.  

                                                                        



                    41                  See Kiokun v. State, Dep't of Pub. Safety                                                                               , 74 P.3d 209, 218 (Alaska 2003);                                               



 Guerrero, 123 P.3d at 977 ("Some, although not necessarily all, decisions made after a                                                                                                                                                                         

 search and rescue is commenced may be operational.").                                                                      



                    42                  See Steward v. State, 322 P.3d 860, 863 (Alaska 2014) (quoting State v.  

                                                                                                                                                                                                                                                              

Abbott , 498 P.2d 712, 720 (Alaska 1972)).  

                                                                                                           



                    43                   Guerrero, 123 P.3d at 979-80.  

                                                                                                            



                                                                                                                            -13-                                                                                                                     7406
  


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

                             C.                          Other Issues   



                                                         Haight also claimed that the City breached its duty of care by failing to                                                                                                                                                                                                                                   



enforce   "ordinances   controlling   use   of   motorized   vessels"   on   the   lake.     Haight  



presumably was referring to the City's 2007 ordinance.                                                                                                                                                                                            But she neither pleaded nor                                             



presented any facts showing that the City had failed to enforce its 2007 ordinance or any                                                                                                                                                                                                                                                                      



other ordinance controlling watercraft use on the lake or that the failure to enforce any                                                                                                                                                                                                                                                                     



ordinances was a cause of the accident. Haight notes in her appeal brief that enforcement                                                                                                                                                                                                                                 



of ordinances was among other measures the City could have taken to reduce hazards on                                                                                                                                                                                                                                                                               



the lake.                                 But her support is a portion of her brief opposing the City's motion                                                                                                                                                                                                                                                    for  



 summary judgment, containing a conclusory assertion that Herring violated a State law                                                                                                                                                                                                                                                                         



prohibiting watercraft from towing devices in a negligent manner.                                                                                                                                                                                                                     To the extent Haight                                       



raised a viable claim against the City, we conclude that by inadequately briefing the                                                                                                                                                                                                                                                                           

issue, she has forfeited it on appeal.                                                                                                                 44  



                                                         The City further  argues that Haight  impermissibly  relies on an  expert  

                                                                                                                                                                                                                                                                                                                                                  



witness affidavit to  identify  reasonable safety measures the City  could  have taken.  

                                                                                                                                                                                                                                                                                                                                                                                 



Because the City is entitled to summary judgment regardless of the affidavit, it is not  

                                                                                                                                                                                                                                                                                                                                                                



necessary to reach this argument.  

                                                                                                  



V.                           CONCLUSION  



                                                         We AFFIRM the superior court's decision.  

                                                                                                                                                                                                         



                            44                           See Kollander v. Kollander                                                                                           , 400 P.3d 91, 94 n.3 (Alaska 2017) (holding                                                                                                               



arguments waived because appellant's brief "addresse[d] [them]only cursorily and d[id]                                                                                                                                                                                                                                                                    

not cite authority for either argument").                                                                           



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