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Dep't. of Transportation & Public Facilities et al. v. Sanders (8/22/97), 944 P 2d 453
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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.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF TRANSPORTATION AND PUBLIC ) Supreme Court No. S-7825
FACILITIES OF THE STATE OF )
ALASKA; ALASKA INTERNATIONAL ) Superior Court No.
AIRPORT SYSTEM; ANCHORAGE ) 3AN-94-5086 CI
INTERNATIONAL AIRPORT, )
) O P I N I O N
Petitioners, )
v. ) [No. 4872 - August 22, 1997]
)
ADRIAN SANDERS; ANDRE )
CORENTEZ MARTIN, a minor, )
by and through his father, )
Adrian Sanders; and UNITED )
AIRLINES, INC., )
)
Respondents. )
______________________________)
Petition for Review from the Superior Court of
the State of Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Michael C. Geraghty and Harland
H. McElhany, DeLisio, Moran, Geraghty & Zobel, Anchorage, for
Petitioners. Phillip Paul Weidner and Michael Cohn, Weidner &
Associates, Anchorage, for Respondents Sanders and Martin. Robert
B. Baker and William F. Brattain II, Baker, Brattain & Huguelet,
Anchorage, for Respondent United Airlines, Inc.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
The issue in this petition for review is whether
sovereign immunity shields the State of Alaska from liability for
adopting a practice of allowing aircraft support vehicles to use
Old International Airport Road (OIA Road), a public road near the
operations area at Anchorage International Airport. Respondent
Adrian Sanders asserted that the State's practice contributed to a
collision between the motorcycle that he was operating and a
baggage transport vehicle operated by respondent United Airlines
because the baggage vehicle did not meet applicable vehicle safety
regulations. The superior court concluded that the State was not
immune and granted summary judgment in favor of Sanders on the
issue of the State's liability. We granted the State's petition to
review this ruling and conclude that the State is immune from
liability for its decision to allow vehicles that do not comply
with applicable safety regulations to operate on OIA Road.
However, the State may be liable if it allowed such vehicles to use
OIA Road without taking reasonable steps to minimize the risk such
vehicles create. Therefore, we reverse and remand.
II. FACTS AND PROCEEDINGS
A. The Accident
While riding a motorcycle on OIA Road during the early
morning hours of July 2, 1992, Adrian Sanders struck the rear of a
baggage train consisting of a baggage tug and five baggage carts.
Sanders suffered serious injuries. The baggage train Sanders
struck was being operated by United Airlines (United). According
to the police report, the United employee who was driving the
baggage train stated that he was traveling approximately ten miles
per hour at the time of the accident.
B. The Underlying Law Suit
Sanders filed suit against the State, United, several
employees of United and the State, and Dynair, the owner of the tug
that United was using to pull the baggage cars. Sanders claimed
that he was unable to see and avoid the baggage train because it
was traveling at a slow rate of speed, weaving across both lanes of
traffic, and operating without adequate lighting or warning
devices. He alleged that the State, which owns and operates the
Airport, [Fn. 1] was liable because the Airport had adopted a
practice of allowing aircraft support vehicles, including baggage
trains, to operate on OIA Road without complying with certain motor
vehicle regulations promulgated by the Department of Public Safety.
C. Airport Design and Operations
OIA Road is a public road that runs east-west. The
Airport operations area is located on the south side of the road
and surrounded by a fence to control public access. United and
other Airport-related businesses lease land from the Airport on the
north side of the road. When Sanders collided with the United
baggage train, it was traveling on the road toward a controlled
gate that provides access to the operations area.
Alaska Statute 28.05.011(1) authorizes the Commissioner
of Public Safety to promulgate rules governing the operation of
vehicles on public roads. Some of these rules are contained in 13
Alaska Administrative Code (AAC) 04.010 et seq. and require various
safety devices such as adequate lighting. One of the regulations
governing operation of vehicles within Airport jurisdiction
provides:
All vehicles shall be operated in accordance
with the general rules prescribed by the airport manager, and with
the applicable provisions of AS 28 and 13 AAC and shall be subject
to the penalties contained therein insofar as these laws and
regulations apply to operations on the airport.
17 AAC 40.030(a)(1). Another relevant regulation provides that
"[a]ll regulations included in secs. 10-70 of this chapter may be
enforced by commissioner [of the Department of Transportation and
Public Facilities], by persons to whom he has designated
enforcement powers, and by other authorized officers." 17 AAC
40.060(a).
The State agrees that "cargo tugs and trailers of the
type involved in the Sanders accident, are not and cannot be made
street legal." Nevertheless, the parties agree that it was common
for Airport-related businesses to operate "non-street legal"
aircraft support vehicles on OIA Road in order to access the
Airport operations area.
The record suggests that Airport safety officials were
warned of the danger created by allowing aircraft support vehicles
to operate on OIA Road. However, these officials apparently
followed a practice of advising Airport public safety officers not
to cite employees of Airport-related business for violating
licensing and lighting regulations on OIA Road. Indeed, record
evidence suggests that when Airport public safety officers enforced
these vehicle regulations, the citations were dismissed, and the
officers were informed that employees of Airport-related tenants
should not be ticketed.
D. Proceedings
On October 5, 1995, Sanders moved for summary judgment
against the State on the issue of liability. The State filed a
cross-motion for summary judgment claiming that it was entitled to
discretionary function immunity under AS 09.50.250. The superior
court held:
Once the State assumed the duty to operate the
Anchorage International Airport, it was obligated to do so non-
negligently. Here, the State established a policy allowing certain
unlicensed, inadequately lighted airport vehicles to travel on Old
International Airport Road. This policy amounts to a breach of the
State's duty to operate the airport safely.
Therefore, the superior court granted Sanders's motion for summary
judgment and denied the State's cross-motion. We granted the
State's petition for review of the superior court's decision that
the State was not entitled to discretionary immunity under AS
09.50.250.
III. DISCUSSION
A. Standard of Review
"Summary judgment will be affirmed if there are no
genuine issues of material fact and if the moving party is entitled
to judgment as a matter of law." Great Am. Ins. Co. v. Bar Club,
Inc., 921 P.2d 626, 627 (Alaska 1996). In reviewing questions of
law, we apply our independent judgment and adopt the rule of law
that is most persuasive in light of precedent, reason, and policy.
Id.
B. The Trial Court Erred in Concluding that the State is Not
Entitled to Discretionary Function Immunity.
Alaska Statute 09.50.250 provides in part:
A person or corporation having a . . . tort
claim against the state may bring an action against the state. . .
. However, an action may not be brought under this section if the
claim
(1) is an action for tort . . . based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a state agency or an
employee of the state, whether or not the discretion involved is
abused[.]
In State v. Abbott, 498 P.2d 712, 720 (Alaska 1972), we
recognized that the term "discretionary"in AS 09.50.250 should not
be interpreted broadly to encompass all state actions involving
discretion. Otherwise, there would be almost no limit to the
State's immunity because "almost any act, even driving a nail,
involves some 'discretion.'"Id. (quoting Johnson v. State, 447
P.2d 352, 357 (Cal. 1968)).
Instead, we identify "discretionary"acts or functions by
examining whether the act or function can be described as
"planning"or "operational." Abbott, 498 P.2d at 720-22. A
planning decision is one that involves policy formulation. In
contrast, an operational decision involves policy execution or
implementation. Id. Only acts or functions occurring at the
planning level are entitled to immunity as discretionary functions
under AS 09.50.250. Id.
Under the planning/operational test, "liability is the
rule, immunity the exception." Johnson v. State, 636 P.2d 47, 64
(Alaska 1981). The test focuses on the policy behind the
discretionary immunity doctrine for guidance in determining whether
a given act should receive immunity. State v. I'Anson, 529 P.2d
188, 193 (Alaska 1974). "The policy underlying immunity is the
necessity for 'judicial abstention in certain policy-making areas
that have been committed to other branches of government.'"
Johnson, 636 P.2d at 64 (quoting Carlson v. State, 598 P.2d 969,
972 (Alaska 1979)). "This policy in turn is based upon notions of
separation of powers, and limitations on this court's ability to
reexamine the questioned decision and the considerations that
entered into it." Id.; accord Industrial Indem. Co. v. State, 669
P.2d 561, 563 (Alaska 1983) ("[C]ourts must not intrude into realms
of policy exceeding their institutional competence.").
1. Airport officials did not have a mandatory duty to
enforce traffic regulations on OIA Road.
United and Sanders both assert that the State is not
entitled to discretionary function immunity because Airport
officials had a mandatory duty to enforce traffic regulations on
OIA Road. We disagree.
We have relied upon federal cases interpreting the
Federal Tort Claims Act when examining the discretionary function
exception in AS 09.50.250(1). [Fn. 2] In interpreting the Federal
Tort Claims Act, the United States Supreme Court has held that when
a statute, regulation, or policy specifically prescribes a course
of conduct, the discretionary function immunity exception does not
apply. Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531,
536 (1988). This is because an act or function can be
"discretionary"only if it "involves an element of judgment or
choice." Id.
Alaska Statute 28.05.011(1) requires the commissioner of
the Department of Public Safety to adopt regulations governing the
"conduct of vehicles"on public roads. Pursuant to this authority,
the commissioner promulgated regulations that require vehicles to
have various kinds of lights. See 13 AAC 04.010 et seq. Another
statute, AS 02.15.060, authorizes the Department of Transportation
and Public Facilities to operate and regulate "airports"within the
state. [Fn. 3] The Department of Transportation and Public
Facilities, in turn, has promulgated two regulations that are
relevant to this case. First, 17 AAC 40.030(a)(1) provides:
All vehicles shall be operated in accordance
with the general rules prescribed by the airport manager, and with
the applicable provisions of AS 28 and 13 AAC and shall be subject
to the penalties contained therein insofar as these laws and
regulations apply to operations on the airport.
Second, and most significantly, 17 AAC 40.060 provides in part:
(a) All regulations included in secs. 10 --
70 of this chapter may be enforced by the commissioner [of the
Department of Transportation and Public Facilities], by persons to
whom he has designated enforcement powers, and by other authorized
officers.
(b) Persons violating the regulations in
secs. 10 -- 70 of this chapter may be charged under applicable
statutes.
17 AAC 40.060(a)-(b) (emphasis added).
We agree with the State that the use of "may"in 17 AAC
40.060 indicates that Airport officials had discretion to decide
whether to enforce vehicle regulations on OIA Road. See Posey v.
State, 225 Cal. Rptr. 830, 839 (App. 1986) ("The meaning of the
word 'may' in the statute . . . . affords the [police] officer . .
. permissive authority, not an obligatory duty . . . ."); City of
Indianapolis v. Constant, 498 N.E.2d 1308, 1310 (Ind. App. 1986)
(noting that the repeated use of "may"in a statute granting
regulatory power indicates discretion). [Fn. 4]
Contrary to Sanders's argument, Wallace v. State, 557
P.2d 1120 (Alaska 1976), does not contradict this conclusion. In
that case, statutes provided that the Department of Labor "may"
enforce labor laws and "may"inspect work sites. Wallace, 557 P.2d
at 1123 n.7 & 8. We did not conclude that these statutes imposed
a mandatory duty to enforce labor laws and inspect work sites. In
fact, we noted that "the decision to inspect a site is a
discretionary act." Id. at 1124. The holding of Wallace is that
once the department decided to inspect, it was under a duty to
perform the inspection non-negligently. Id. Thus, Wallace does
not require us to conclude that the State had a mandatory duty to
enforce traffic regulations on OIA Road.
2. The discretionary function exception was designed
to shield decisions like the determination to allow aircraft
support vehicles to use OIA Road without complying with applicable
vehicle safety regulations.
Having concluded that the Airport officials did not have
a mandatory duty to enforce traffic regulations on OIA Road, we
next consider whether the discretionary function exception was
designed to shield decisions like the one to allow "non-street
legal"aircraft support vehicles to use OIA Road. The State argues
that its practice of allowing such vehicles to use OIA Road was a
planning level decision aimed at facilitating access to the Airport
operations area for Airport tenants like United who occupy spaces
on the north side of OIA Road. United and Sanders maintain that
under Japan Air Lines Co. v. State, 628 P.2d 934 (Alaska 1981), and
State v. Abbott, 498 P.2d 712 (Alaska 1972), once the State decided
to design, build, and operate the Airport, it was obligated to
implement that decision with due care.
We agree with United and Sanders that Abbott is most
analogous to the case before us. In Abbott, Brenda Vogt brought an
action for damages against the state after she lost control of her
automobile while attempting to negotiate a curve on the Seward
Highway. Abbott, 498 P.2d at 715. She alleged that the state was
"negligent in its design, construction and maintenance of the road
and in failing to post signs warning of the hazardous condition of
the curve." Id. Applying the planning/operational test, we
concluded:
Although it is true, as the state contends,
that the district engineer's decision as to how many men and how
much equipment were necessary to maintain this particular stretch
of highway involved a certain amount of planning and discretion, it
is not the kind of broad policy decision at which the exception .
. . is aimed. Once the initial policy determination is made to
maintain the highway through the winter by salting, sanding and
plowing it, the individual district engineer's decisions as to howthat decision should be carried out in terms of men and machinery
is made at the operational level . . . . Once the basic decision
to maintain the highway in a safe condition throughout the winter
is reached, the state should not be given discretion to do so
negligently.
Id. at 722.
In this case, the State's practice of not enforcing
vehicle safety regulations against aircraft support vehicles is
essentially a decision to open OIA Road to aircraft support
vehicles that do not comply with applicable vehicle safety
regulations. This policy is analogous to the state's planning
decision in Abbott to maintain the Seward Highway through the
winter. As discussed in Part III.B.1, the governing regulation
gave Airport officials discretion to enforce vehicle safety
regulations. Thus, many different policy factors such as Airport
security, convenience to Airport tenants, and allocation of limited
Airport resources permissibly could have influenced the decision to
facilitate access to the operations area by opening OIA Road to
aircraft support vehicles. [Fn. 5] Because the governing
regulation provides no standards that a court might use to analyze
the non-enforcement decision, the non-enforcement decision is
protected by the discretionary function exception in AS
09.50.250(1).
Although the State's decision to allow aircraft support
vehicles to use OIA Road was within the discretionary function
exception, the State still may be subject to liability for failure
to take reasonable measures to minimize the risk created by
aircraft support vehicles on OIA Road. As in Abbott, once Airport
officials reached the discretionary decision to allow aircraft
support vehicles to use OIA Road, they did not have discretion to
do so negligently. See Abbott, 498 P.2d at 722. That is, the
discretionary function exception protects the planning decision to
allow aircraft support vehicles to use OIA Road, but it does not
protect the manner in which Airport officials implement that
decision. In this case, if those officials did not take reasonable
steps [Fn. 6] to implement the planning decision in a non-negligent
manner, the State may be liable. [Fn. 7]
Contrary to the State's arguments, our conclusion is not
inconsistent with Earth Movers v. State, 691 P.2d 281 (Alaska
1984), or Estate of Arrowwood v. State, 894 P.2d 642 (Alaska 1995).
In Earth Movers, a state trooper interpreted a regulation to give
him authority to temporarily reduce the speed limit on a particular
stretch of road in response to road hazards. Earth Movers, 691
P.2d at 282. Pursuant to this perceived authority, the trooper
reduced the speed limit on a road leading up to a construction
site. Id. A construction company alleged that the trooper's
reduction in the speed limit negligently caused it to incur delay
damages. Id. We concluded:
[The trooper] did have the authority to ticket
drivers for exceeding a reasonable speed based on the road
conditions. However, if he went beyond his authority when he
stated that he was reducing the speed limit, his action would be
subject to the discretionary function exception embodied in AS
09.50.250(1).
Id. at 283.
Our decision in Earth Movers does not control this case.
In Earth Movers, the contractor did not contend that the trooper
implemented a discretionary policy in a negligent manner. Instead,
the contractor argued that the trooper negligently concluded that
applicable regulations authorized him to reduce the speed limit.
See id. at 282. In contrast, the issue in this case is whether the
State can be liable for negligently implementing the discretionary
non-enforcement policy.
Estate of Arrowwood also is consistent with our
conclusion. In that case, the Arrowwoods contended that the state
negligently failed to close the Parks Highway. 894 P.2d at 644.
We noted that "relevant statutory and administrative code
provisions do not require officials to act to carry out a
predetermined policy"when evaluating whether to close a highway.
Id. at 645. Instead, we recognized that "the language of these
provisions delegates to officials on the scene the authority to act
if their evaluation of road conditions leads them to conclude that
such action is necessary." Id. Thus, we held that the decision
not to close the highway was within the discretionary function
exception. Id. at 646.
The decision not to close the Parks Highway in Arrowwood
is analogous to the Airport officials' decision to allow aircraft
support vehicles on OIA Road. Thus, Arrowwood supports our
conclusion that the non-enforcement decision was discretionary.
However, this case involves an issue Arrowwood did not: whether the
State negligently implemented its discretionary decision.
Therefore, Arrowwood is not dispositive.
IV. CONCLUSION
We conclude that the State is immune from liability for
its decision to allow aircraft support vehicles to operate on OIA
Road. That decision is protected by AS 09.50.250(1). However,
once the State decided to open the road to such vehicles, it was
obligated to do so in a non-negligent manner. We REVERSE and
REMAND for further proceedings consistent with this opinion.
FOOTNOTES
Footnote 1:
The Airport is operated by the Alaska Department of
Transportation and Public Facilities, which is vested with
authority to "plan, establish, construct, enlarge, improve,
maintain, equip, operate, regulate, protect, and police airports
and air navigation facilities within the state." AS 02.15.060.
Footnote 2:
"Because the critical statutory language of the discretionary
function exception in AS 09.50.250(1) is identical to that
contained in the Federal Tort Claims Act, reliance on federal court
interpretation of the exception is appropriate." R.E. v. State,
878 P.2d 1341, 1349 n.15 (Alaska 1994).
Footnote 3:
AS 02.15.260(5) defines "airport"as "an area of land or water
which is used or intended for use for the landing and take-off of
aircraft, and any appurtenant areas which are used or intended for
use for airport buildings or other airport facilities or rights-of-
way, together with airport buildings and facilities located
thereon[.]"
Footnote 4:
Subsection (c) of 17 AAC 40.060 further suggests that "may"
indicates discretion. That subsection provides that the airport
manager "may"impound illegally parked vehicles and "may"assess an
impound fee. 17 AAC 40.060(c)(1)(B) & (c)(2). In contrast,
subsection (c) also states that "[a]ll impounded property which is
not redeemed within 90 days after impoundment shall be considered
abandoned and shall be subject to sale." 17 AAC 40.060(c)(3)
(emphasis added). The use of "shall"and "may"within the same
regulation indicates that "may"provides discretion while "shall"
does not.
Footnote 5:
"[S]ome jurisdictions require that a state or local
governmental unit seeking to obtain the protection of discretionary
function immunity show that a considered policy evaluation actually
took place." 57 Am. Jur. 2d Municipal, County, School, and State
Tort Liability sec. 123 (1988). Alaska does not require such a
showing. Industrial Indem. Co. v. State, 669 P.2d 561, 566 n.11
(Alaska 1983) ("While we have remarked occasionally in the past
upon the varied elements of policy weighed by the legislature in
reaching a protected decision, we have done so only to illustrate
the kinds of competing factors which lie behind determinations of
policy, and to demonstrate that the courts are an inappropriate
forum in which to re-evaluate those determinations.").
Footnote 6:
Such steps might include appropriate warning lights or
signals, road signs, reduced speed limits, and controls on the
number of aircraft support vehicles on OIA Road. We do not decide
whether the State took reasonable steps to minimize the risk
created by allowing aircraft support vehicles on OIA Road.
Footnote 7:
Our decision in Japan Air Lines Co. v. State, 628 P.2d 934
(Alaska 1981), provides additional support for this result. In
that case, we determined that the state's decision to build a
taxiway at the Airport was a discretionary decision. However,
"[o]nce the basic policy decision to build such a taxiway at [the
Airport] was made, the state was obligated to use due care to make
certain that the taxiway met the standard of reasonable safety for
its users." Id. at 938. In that case, the taxiway did not meet
federal aviation standards. Id. at 936.
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