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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
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,
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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.
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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...)
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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).
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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.").
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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.
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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
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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.").
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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).
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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.
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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.
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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.
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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.
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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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