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Himsel et al. v State (11/30/2001) sp-5507
Himsel et al. v State (11/30/2001) sp-5507
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
ESTATE OF KENNETH W. HIMSEL, )
Deceased, Brought by Dr. B. )
Carls Kerkhove, Personal ) Supreme Court No. S-8640
Representative of the Estate )
of Kenneth W. Himsel; DEBORAH ) Superior Court No.
ANN HIMSEL, Individually and ) 3AN-94-10146 CI
in the Capacity as Parent of )
KRISTA S. HIMSEL and KENDRA ) O P I N I O N
J. HIMSEL; ESTATE OF RICHARD )
E. BRINK, Deceased, Brought by) [No. 5507 - November 30, 2001]
Zita Rosa Brink, Personal )
Representative of the Estate )
of Richard E. Brink; ZITA )
ROSA BRINK, Individually; )
BORIS BRINK, Individually; )
ESTATE OF WILFRIED E. WOOD, )
Deceased, Brought by Crystal )
M. Wood, Personal Representa- )
tive of the Estate of Wilfried)
E. Wood; CRYSTAL M. WOOD, )
Individually and in the )
Capacity as Parent of KIRSTEN )
A. WOOD; ESTATE OF MICHAEL )
JOSEPH SCHMIDT, Deceased, )
Brought by Deanna Sue Schmidt,)
Personal Representative of the)
Estate of Michael Joseph )
Schmidt; DEANNA SUE SCHMIDT, )
Individually and in her )
Capacity as Parent of PRESTON )
R. SCHMIDT and GARRET M. )
SCHMIDT; ESTATE OF LLEWELLYN )
ARCHIE KAHKLEN, Brought by Ida)
Marie Kahklen, Personal Repre-)
sentative of the Estate of )
Llewellyn Archie Kahklen; IDA )
MARIE KAHKLEN, Individually )
and in her Capacity as Parent )
of KRISTEN KAHKLEN and MARCOS )
FIGUEROA KAHKLEN, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Robert Merle Cowan, Law Offices
of Cowan & Gerry, Kenai, for Appellants Himsel, Brink, and Wood;
Steven E. Aldous and Tom H. Davis, Slack & Davis, Austin, Texas,
for Appellants Himsel, Brink, and Wood; and Kermit E. Barker, Jr.,
Barker & Hell‚n, Anchorage, for Appellants Schmidt and Kahklen.
Gary M. Guarino, Assistant Attorney General, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
MATTHEWS, Chief Justice, with whom EASTAUGH,
Justice, joins, dissenting.
I. INTRODUCTION
In November 1992 an Alaska Army National Guard plane
crashed; all aboard perished. Family members of the passengers
sued the State of Alaska, alleging pilot negligence. The superior
court granted summary judgment in favor of the state on the grounds
that the claims were related to military service. We reverse and
remand this case because the families' claims are not barred merely
because they arose incident to military service and because there
exist genuine issues of material fact relating to whether the pilot
was acting on behalf of the state as a borrowed employee.
II. FACTS AND PROCEEDINGS
On November 12, 1992, an Alaska Army National Guard C-12
airplane carrying eight Army National Guard members crashed into a
mountain while approaching the Juneau airport, killing all persons
aboard. The plane was piloted by State Aviation Officer Colonel
Thomas Clark and co-piloted by Warrant Officer John Pospisil. The
passengers were Major General Kenneth Himsel, General Thomas
Carroll, Colonel Wilfred Wood, Sergeant Major Llewelyn Kahklen,
Sergeant First Class Richard Brink, and Sergeant Michael Schmidt.
General Himsel and the other passengers were flying from
Anchorage to Juneau to review facilities, personnel, and training
procedures at the Juneau Battalion headquarters.
At the time of the crash, Colonel Clark was employed as
a National Guard "technician"and was the "State Aviation Officer."
General Himsel was executing orders from the Indiana National Guard
and was on "Active Duty Special Work"status. General Thomas
Carroll was the Commander of the Alaska Army National Guard.
Colonel Wilfred Wood, Sergeant Major Llewelyn Kahklen, Sergeant
First Class Richard Brink, and Sergeant Michael Schmidt were on
Active Guard Reserve status.
The families of General Himsel, Colonel Wood, Sergeant
Major Kahklen, Sergeant Brink, and Sergeant Schmidt (collectively,
the families) filed suit against the State of Alaska and Beech
Aircraft in state court. The families claimed that the crash was
caused by "design induced pilot error." Further, the families
contended that the state, as Colonel Clark's employer, was
vicariously liable for his negligence under the doctrine of
respondeat superior.
Beech Aircraft filed a third-party complaint against the
estates of Colonel Clark and Warrant Officer Pospisil seeking
equitable apportionment of fault.
The United States intervened to remove the case to United
States District Court on the grounds that Colonel Clark was a
federal employee and that the Federal Tort Claims Act [Fn. 1]
(FTCA) was the exclusive remedy for claims against federal
employees acting within the scope of their employment. The United
States further requested that the claims asserted against Colonel
Clark's estate be "deemed an action against the United States."
Additionally, the United States Department of Justice certified
that Colonel Clark "was acting within the scope of his employment
as an employee of the United States at the time of the November 12,
1992, crash of the C-12 aircraft near Juneau, Alaska."
Concurrent with the removal action, the United States
filed motions to dismiss and for summary judgment. In support of
its motions, the United States cited the Feres [Fn. 2] doctrine,
which bars armed service members from suing the United States under
the FTCA for injuries that arose out of activities that were
incident to service. [Fn. 3] The case was removed to federal
court.
The families voluntarily dismissed their claims against
Beech Aircraft and the estates of Colonel Clark and Warrant Officer
Pospisil. The only remaining defendant was the State of Alaska.
Since no federal issues remained, the case was remanded to the
state superior court.
The state sought summary judgment on the grounds that the
Feres doctrine bars all intra-military tort claims, including those
between Army National Guard members in Alaska. Alternatively, the
state argued that Colonel Clark was a federal employee and thus the
state could not be liable under a vicarious liability/respondeat
superior theory claim of negligence.
The superior court granted summary judgment and held that
the families' claims were indeed "barred by the Feres doctrine."
Additionally, the court held that since the families' claims were
barred, it need not rule on whether the state could be liable to
the families on the vicarious liability/respondeat superior theory.
III. STANDARD OF REVIEW
We review summary judgments de novo to determine whether
any genuine issues of material fact exist and whether the moving
party is entitled to a judgment as a matter of law. [Fn. 4] On
questions of law, we apply our independent judgment and adopt the
rule of law "most persuasive in light of precedent, reason, and
policy."[Fn. 5]
IV. DISCUSSION
A. The Families' Claims Against the State Are Not Barred by
the Feres Doctrine.
1. The Feres Doctrine
In Feres v. United States, the United States Supreme
Court held that service members cannot bring tort suits against the
federal government for injuries that "arise out of or are in the
course of activity incident to service."[Fn. 6] The Court reached
this conclusion in spite of the fact that under the FTCA the
federal government had generally waived its sovereign immunity.
The FTCA rendered the federal government liable for "the negligent
or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment."[Fn. 7]
The Court has explained that the Feres doctrine is
premised upon the concern for the "peculiar and special
relationship of the soldier to his superiors, the effects of the
maintenance of such suits on discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were allowed
for negligent orders given or negligent acts committed in the
course of military duty."[Fn. 8]
While thus limited at its inception, the Feres doctrine
has been expanded to preclude a great variety of suits in federal
court over the years. (1) It has been held to bar a negligence
suit against the United States brought by the mother of a soldier
who was murdered by another soldier while the victim was off-base
and off-duty; [Fn. 9] (2) an indemnification suit against the
United States brought by a military subcontractor regarding a
negligently manufactured aircraft ejection seat; [Fn. 10] and (3)
a suit against the United States brought by the widow of a Coast
Guard helicopter pilot, which alleged that civilian Federal
Aviation Administration employees negligently caused the pilot's
helicopter crash. [Fn. 11]
And while it has expanded in application, the Feres
doctrine has been supported by a dwindling number of the members of
the Supreme Court. Justice Scalia, dissenting in Johnson and
speaking for a four-member minority, noted that the FTCA does not,
on its face, generally preclude suits by military personnel. [Fn.
12] Moreover, he argued that the plain language of the FTCA
rendered the United States "liable to all persons, including
servicemen, injured by the negligence of Government employees."
[Fn. 13] Addressing the government's argument that the Feres
doctrine was needed to maintain military discipline and morale,
Justice Scalia ironically noted that barring recovery in tort by
military personnel "might adversely affect military discipline.
After all, the morale of [Johnson's] comrades-in-arms will not
likely be boosted by news that his widow and children will receive
only a fraction of the amount they might have recovered had he been
piloting a commercial helicopter at the time of his death."[Fn.
14] The Feres doctrine has also been heavily criticized [Fn. 15]
and only reluctantly applied [Fn. 16] in the federal circuit
courts.
2. Alaska law
We have never directly ruled on the applicability of the
Feres doctrine in Alaska. [Fn. 17] With regard to tort liability,
the basic policy of law in Alaska is that "when there is
negligence, the rule is liability, immunity is the exception."[Fn.
18] Since the families' claims are brought in state court pursuant
to the Alaska Tort Claims Act, [Fn. 19] and the Feres doctrine is,
strictly speaking, a federal doctrine, we are not bound by its
holding.
The question before us, then, is whether based on Alaska
law we should apply the Feres doctrine to the families' claims
simply because the claims arose "incident to military service."
Before we judicially create law that limits the civil remedies of
military personnel in this state, we must determine if the existing
law is inadequate to deal with this particular factual situation.
Since existing law is adequate for this case, we decline to adopt
the Feres doctrine at this time. [Fn. 20]
We are not alone in choosing this path. While some
states have adopted Feres outright, [Fn. 21] others have chosen not
to apply it. The Montana Supreme Court concluded that the Feres
doctrine conflicted with the Montana Constitution, [Fn. 22] which
states that "Courts of justice shall be open to every person . . .
. No person shall be deprived of . . . full legal redress for
injury incurred in employment . . . ."[Fn. 23]
Similarly, the Washington Supreme Court held that
Washington has, by statute, waived its blanket sovereign immunity
from suit. [Fn. 24] While there is a narrow exception to that
waiver for discretionary government acts, [Fn. 25] the court held
that not all of the acts at issue by the Washington National Guard
fell within that exception. [Fn. 26] As such, the State of
Washington was not immune from being sued in tort by soldiers for
the acts of fellow soldiers. [Fn. 27]
The analytical framework adopted by Washington is sound.
Alaska also has generally waived its sovereign immunity but has
reserved it for discretionary governmental acts. [Fn. 28] To
determine if a governmental act is "discretionary"we employ the
planning/ operational test. [Fn. 29] A planning act is one that
involves a basic policy decision, whereas an operational act
involves the execution or implementation of a policy decision; only
a planning act is entitled to immunity as a discretionary function.
[Fn. 30]
We have made this distinction because we recognize that
"[m]uch of what is done by officers and employees of the government
must remain beyond the range of judicial inquiry; obviously it is
not a tort for the government to govern."[Fn. 31]
We now apply this framework to the instant case. It was
obviously a planning act to decide to bring General Himsel to
Alaska to review the Army National Guard's training procedures.
The decision to fly to Juneau from Anchorage aboard an Army
National Guard C-12, flown by Colonel Clark, might also be
considered a planning act. But if, as alleged, Colonel Clark flew
the plane negligently, that negligence was not in the planning of
the trip, but rather in the implementation of that plan. Therefore
it is properly described as "operational." As such, the state is
not immunized from liability.
The state argues that we must adopt the Feres doctrine
lest the court inappropriately intrude upon military matters. But,
as we noted in State, Department of Military and Veterans Affairs
v. Bowen, not all questions that involve the military require
"military expertise"or are so uniquely military that judicial
inquiry into them would cause undue interference with the military
mission. [Fn. 32] There is nothing "uniquely military"about a
flight from Anchorage to Juneau, and evaluating whether Colonel
Clark was negligent does not require special "military expertise."
Simply put, the C-12 was being used to transport passengers between
Anchorage and Juneau. It was not being used in combat or in
training, nor were there exigent circumstances that prevented the
members of the Himsel group from flying either on a chartered
civilian plane or on a regularly scheduled commercial flight. If
they had flown on either a chartered civilian plane or a commercial
plane, it is unquestioned that the families could pursue a tort
action against the employer of the pilot. Likewise, a civilian on
board the C-12 would have a tort claim against Colonel Clark's
employer. The only military aspect of the event causing the loss
in this case was the objective of reviewing the National Guard
facilities in Juneau; the nature of the flight during which the
losses occurred is indistinguishable from an ordinary commercial
flight. No reason appears why the military status of the
passengers alone should limit their civil remedies. Accordingly,
we hold that in this case the Feres doctrine does not preclude a
tort action under Alaska law.
B. There Exist Genuine Issues of Material Fact Regarding the
State's Liability for Colonel Clark's Alleged Negligence. [Fn. 33]
We have generally adopted the view that vicarious
liability or respondeat superior claims only arise "within the
scope of employment."[Fn. 34] Under this doctrine, two
requirements must be met in order for an employer to be liable for
an actor's negligence: (1) that the actor was an employee of the
employer; and (2) that the alleged negligent act occurred within
the scope of the employee's employment. However, as we first
recognized in Reader v. Ghemm Co., [Fn. 35] there is an exception
to the general rule of respondeat superior: An employer who
borrows the employee of another can, in certain circumstances, be
held liable for the negligent acts of the borrowed employee. [Fn.
36]
We later modified the doctrine of the borrowed employee
[Fn. 37] in Kastner v. Toombs in a manner that left both the
lending employer and the borrowing employer potentially liable for
the negligent acts of the employee under a system that apportioned
fault between the two employers. [Fn. 38] Under the statutory
system in place at that time, fault and liability were apportioned
according to contribution and indemnity. [Fn. 39] Alaska has since
moved to a system of comparative negligence for apportioning
liability according to fault. [Fn. 40] Thus, liability under the
doctrine of the borrowed employee is apportioned between the two
employers according to comparative negligence. But we need not
reach that issue here; it suffices to note that the state could be
found liable to the families under the doctrine of the borrowed
employee. Therefore, in order for the court to grant summary
judgment on this issue, there must exist no genuine question as to
whether Colonel Clark was either an employee of the state or a
borrowed employee acting on behalf of the state.
1. Colonel Clark was not acting as an official State
of Alaska employee at the time of the crash.
a. An Army National Guard technician is a federal
employee.
An Army National Guard technician such as Colonel Clark
is "an employee of the United States."[Fn. 41] As a technician,
Colonel Clark was required to (1) "be a member of the National
Guard;"[Fn. 42] (2) hold the military rank appropriate for the
position; [Fn. 43] and (3) wear the appropriate uniform. [Fn. 44]
Colonel Clark's "position"as a technician was that of
Supervisory Aircraft Pilot/State Aviation Officer. The Alaska Army
National Guard stated that at the time of the crash:
Col. Clark was a Federal Excepted Military
Technician. He was a federal employee which required him to hold
a position in the Alaska Army National guard and wear the military
uniform. He was not on active duty orders to fly because it was
part of his position description as the SAO [State Aviation
Officer]. Col. Clark was acting in his official capacity as the
pilot and the SAO.
The families argue that Colonel Clark's status as the
State Aviation Officer/State Supervisory Pilot made him a state
employee. As discussed above, these duties were his "position"as
a technician, not separate as the families infer. Even assuming
for the sake of argument that the families' inference was correct,
it is clear that State Aviation Officer/State Supervisory Pilot
position is a federal one. In the federal "Position Description"
for this position, Colonel Clark was assigned a federal pay and
responsibility grade of GM-14.
b. Colonel Clark was not acting as an Alaska Army
National Guard member at the time of the crash.
If, at the time of the crash, Colonel Clark was acting
only as an Alaska Army National Guard member who had been placed on
Active Guard Reserve (AGR) status, then he would have been a state
employee at the time of the crash. [Fn. 45]
The families argue that Colonel Clark was in AGR status
because he was a member of the Alaska Army National Guard. This is
incorrect. Merely being in the National Guard does not mean the
Guard member is in AGR status. To be in AGR status, the Guard
member must be ordered into it. [Fn. 46] While there is a record
of Colonel Wood, Sergeant Major Kahklen, Sergeant First Class
Brink, and Sergeant Schmidt being so ordered, there is no such
record for Colonel Clark.
Additionally, as previously discussed, both the Alaska
Army National Guard and the United States Department of Justice
stated that Colonel Clark was acting as a federal employee in his
role as a technician serving as the State Aviation Officer at the
time of the crash. [Fn. 47]
In sum, since Colonel Clark was indisputably a federal
and not a state employee at the time of the crash, the state cannot
be vicariously liable as his employer for his alleged negligence.
2. A reasonable jury could find that Colonel Clark was
a borrowed employee acting on behalf of the State of Alaska.
As previously noted, Alaska has reconciled the
doctrine of respondeat superior with the doctrine of the borrowed
employee so that when one employer borrows the employee of another
employer, both may be held responsible for the negligent acts of
that employee. [Fn. 48] Accordingly, the State of Alaska may be
liable for the acts of Colonel Clark if he was a borrowed employee
acting for the state at the time of the accident.
In announcing the original doctrine of the borrowed
employee, we stated: "A[n employee] directed or permitted by his
[employer] to perform services for another may become the
[employee] of such other in performing the services. He may become
the other's [employee] as to some acts and not as to others."[Fn.
49] The decisive question is whether the employee was loaned as to
the particular acts at issue. [Fn. 50] And the test turns on the
question of control, or the transfer of control. [Fn. 51] We have
previously stated that "[t]he control which the borrowing
[employer] must acquire for the servant to become loaned is not
merely control over the [employee's] specific acts, but rather
control in a broader sense."[Fn. 52]
Evidence in the record suggests that the state may have
exerted control over Colonel Clark regarding the acts in question.
For example, the "Position Description"for Colonel Clark's job
states that the State Army Aviation Officer and Safety Officer for
a State Army National Guard (ARNG) "[m]anages the ARNG aviation
program of the state which includes planning, coordinating,
implementing and directing all aviation assets within the State
. . . [and acts] as a liaison with all organizations concerning
matters relevant to aviation support."(Emphasis added.) Further,
this position "[c]ontrols the aviation program for the state . . ."
and the provisions of the U.S. Army Aircrew Training program must
be complied with when acting as "a pilot in an Army aircraft
assigned to the State."(Emphasis added.) And, several of the
passengers on the flight had been called into AGR status and were
thus considered state employees. There is at least some evidence
in the record that acts of Colonel Clark, in his capacity as the
State Aviation/Safety Officer, may have been controlled by the
state both specifically and generally. Whether the state exerted
such control is therefore a disputed material fact. Upon remand,
the plaintiffs are entitled to trial on this issue.
V. CONCLUSION
Because we decline to hold that the state is immune under
the doctrine of Feres v. United States in the circumstances of this
case, and because genuine issues of fact exist as to whether
Colonel Clark was acting on behalf of the State of Alaska as a
borrowed employee, we REVERSE and REMAND to the superior court for
further proceedings consistent with this opinion.
MATTHEWS, Chief Justice, with whom EASTAUGH, Justice, joins,
dissenting.
In my opinion the doctrine of intra-military immunity was
properly held to govern this case. The doctrine, an outgrowth of
Feres v. United States, [Fn. 1] bars claims by military service
personnel against military actors for injuries arising out of
activities that are "incident to service."[Fn. 2] It applies to
state common law tort claims, [Fn. 3] state statutory claims, [Fn.
4] federal constitutional tort claims, [Fn. 5] and federal
statutory claims, [Fn. 6] as well as claims brought under the
Federal Tort Claims Act. [Fn. 7] It immunizes not only the United
States, but individual service personnel and state National Guard
agencies. [Fn. 8]
In Stauber v. Cline [Fn. 9] the Ninth Circuit applied the
doctrine of intra-military immunity to claims that had been brought
by one employee of the Alaska Army National Guard against other
employees of the Guard and of the State of Alaska. In holding that
the doctrine of intra-military immunity applied and barred state
law tort claims the court explained the rationale of the doctrine:
[T]he Feres doctrine has come to rest at least
in significant part on the view that the judiciary ought not to
intrude in military affairs. [FN6] Thus the Feres rule has been
interpreted as necessary to avoid the courts' second-guessing
military decisions, or impairing military discipline. Shearer, 473
U.S. at 57, 105 S.Ct. at 3043; see Chappell v. Wallace, 462 U.S.
296, 304, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983). Indeed,
courts have even been viewed as "'ill-equipped to determine the
impact upon discipline that any particular intrusion upon military
authority might have.'" Chappell, 462 U.S. at 305, 103 S.Ct. at
2368 (quoting Warren, The Bill of Rights and the Military, 37
N.Y.U.L.Rev. 181, 187 (1962)).
Thus the Feres doctrine, as presently
interpreted, has far more to do with the proper relation between
the courts, Congress and the military than it has to do with
individual defendants. It is not a matter of personal immunity of
the military personnel who may be defendants in a Bivens-type
action incident to military services. United States v. Stanley,
483 U.S. ___ , 107 S.Ct. 3054, 3064, 97 L.Ed.2d 550 (1987). It is
a judicial doctrine leaving matters incident to service to the
military, in the absence of congressional direction to the
contrary.
FN6. Declining to permit review of
National Guard internal operations on justiciability grounds, in
Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d
407 (1973), the Supreme Court noted that it is difficult to
conceive of an area of governmental activity in which the courts
have less competence. The complex, subtle, and professional
decisions as to the composition, training, equipping, and control
of a military force are essentially professional military
judgments, subject always to civilian control of the Legislative
and Executive Branches.
Id. (emphasis in original), quoted
in Chappell v. Wallace, 462 U.S. 296, 302, 103 S.Ct. 2362, 2366, 76
L.Ed.2d 586 (1983)[.][ [Fn. 10]]
The doctrine of intra-military immunity immunizes not
only military personnel, but their employers. Thus states, as
employers of military personnel in the National Guard, are
immunized by the doctrine. This issue was discussed in the context
of the Alaska Air National Guard by the Ninth Circuit in Bowen v.
Oistead. [Fn. 11] Bowen involved, among other claims, tort claims
by Bowen, a member of the National Guard, against other Guard
members and the state. The Ninth Circuit held that the doctrine of
intra-military immunity barred his claims against the state Guard
officers and the state, discussing this issue at some length. The
court stated:
While Bowen's first argument against the
application of the Feres doctrine focuses upon his own status as a
state employee, his second argument against Feres focuses upon the
status of the defendants. Bowen urges us not to bar his claims
against the state officers because, he argues, the Feres doctrine
"cannot be applied to the states,"i.e., it is applicable only to
those actions where federal military personnel are somehow
implicated in the alleged unlawful conduct. Thus, Bowen
distinguishes Stauber by noting that the parties in that case were
"under the direct command of a uniformed, full-time U.S. Army
lieutenant colonel."See Stauber, 837 F.2d at 397.
In United States v. Johnson, the Supreme
Court noted that it had
never suggested that the military
status of the alleged tortfeasor is crucial to the application of
the [Feres] doctrine. Nor have the lower courts understood this
fact to be relevant under Feres. Instead, the Feres doctrine has
been applied consistently to bar all suits on behalf of service
members against the Government based upon service-related injuries.
481 U.S. 681, 686-88, 107 S.Ct. 2063, 2066-67,
95 L.Ed.2d 648 (1987).
Courts have not interpreted this language
to mean that the service person's suit must be against the federal
government or federal officers. The overwhelming weight of
authority indicates that state National Guard officers are
protected from suit by fellow Guardsmen by the Feres doctrine.
Stauber, for example, applied Feres to a Guardsman's claims against
individual members of the Alaska National Guard, the Alaska
Adjutant General, the Alaska Department of Military and Veterans
Affairs, and the State of Alaska itself. See also Uhl v.
Swanstrom, 79 F.3d 751 (8th Cir. 1996) (applying Feres bar to suit
by National Guardsman against his commanding state officer, the
Adjutant General of the Iowa Air National Guard, and the Iowa Air
National Guard); Lovell v. Heng, 890 F.2d 63 (8th Cir. 1989)
(National Guardsman's sec. 1983 action against state National Guard
officers barred under Feres); Townsend v. Seurer, 791 F.Supp. 227,
229 (D. Minn. 1992) ("[R]egardless of whether the suit is brought
against the state National Guard and individual Guard personnel or
against the United States and individual Guard personnel, the Feres
doctrine will bar the action."). Indeed, we indicated in Stauber
that the Feres doctrine "has far more to do with the proper
relation between the courts, Congress and the military than it has
to do with individual defendants. . . . It is a judicial doctrine
leaving matters incident to service to the military, in the absence
of congressional direction to the contrary." Stauber, 837 F.2d at
399.[ [Fn. 12]]
There are literally scores of cases applying the doctrine of intra-
military immunity to National Guard officers and their employers.
[Fn. 13]/ [Fn. 14]
Moreover, as Bowen indicates, the application of the
doctrine of intra-military immunity is a question of federal law
even when applied to state defendants based on state claims.
Discussing some of the numerous cases which have applied Feres to
Guardsmen's claims, the Bowen court stated:
These cases implicitly recognize that the
military apparatus of the United States cannot be divided into
strictly state and federal components. We endorse these holdings:
Feres applies to the state National Guards and their members due to
the integral role they play as part of the nation's defense force
and the substantial degree to which the state National Guards are
financed, regulated, and controlled by the federal government even
when not called into active federal service. Consequently, under
Stauber and the clear weight of authority in other circuits,
Bowen's constitutional claims and claims sounding in tort are
subject to the Feres doctrine.[ [Fn. 15]]
Since the doctrine of intra-military immunity is a matter
of federal law we need not ask whether state law contains a similar
immunity. The federal immunity applies to state law claims for
reasons found sufficient under federal law. But even if the
immunity were not imposed by federal law, I believe that state law
should adopt it for a number of reasons.
First, the basic rationale that military decisions
affecting military personnel should not be reviewed in civilian
courts is persuasive. The Supreme Court of the United States
articulated this rationale in Chappell v. Wallace. [Fn. 16] In so
doing the Court included within its discussion state National
Guards:
Congress' authority in this area, and the
distance between military and civilian life, was summed up by the
Court in Orloff v. Willoughby, supra, 345 U.S., at 93-94, 73 S.Ct.,
at 540:
[J]udges are not given the task of
running the Army. The responsibility for setting up channels
through which . . . grievances can be considered and fairly settled
rests upon the Congress and upon the President of the United States
and his subordinates. The military constitutes a specialized
community governed by a separate discipline from that of the
civilian. Orderly government requires that the judiciary be as
scrupulous not to interfere with legitimate Army matters as the
Army must be scrupulous not to intervene in judicial matters.
Only recently we restated this principle
in Rostker v. Goldberg, 453 U.S. 57, 64-65, 101 S.Ct. 2646, 2651,
69 L.Ed.2d 478 (1981):
The case arises in the context of
Congress' authority over national defense and military affairs, and
perhaps in no other area has the Court accorded Congress greater
deference.
In Gilligan v. Morgan, 413 U.S. 1, 93
S.Ct. 2440, 37 L.Ed.2d 407 (1973), we addressed the question of
whether Congress' analogous power over the militia, granted by Art.
I, sec. 8, cl. 16, would be impermissibly compromised by a suit
seeking to have a Federal District Court examine the "pattern of
training, weaponry and orders"of a state's National Guard. In
denying relief we stated:
It would be difficult to think of a
clearer example of the type of governmental action that was
intended by the Constitution to be left to the political branches
directly responsible -- as the Judicial Branch is not -- to the
electoral process. Moreover, it is difficult to conceive of an
area of governmental activity in which the courts have less
competence. The complex, subtle, and professional decisions as to
the composition, training, equipping, and control of a military
force are essentially professional military judgments, subject
always to civilian control of the Legislative and Executive
Branches. The ultimate responsibility for these decisions is
appropriately vested in branches of the government which are
periodically subject to electoral accountability.
Id., at 10, 93 S.Ct., at 2446 (emphasis in
original).[ [Fn. 17]]
Second, the Alaska Claims Against the State Act was first
adopted by the territorial legislature in 1957 [Fn. 18] and was
recodified without substantial change by the state legislature in
1962. [Fn. 19] The Alaska act was closely modeled on the Federal
Tort Claims Act. We have recognized this in a number of cases,
[Fn. 20] noting that we "rely heavily on federal cases interpreting
the Federal Tort Claims Act."[Fn. 21] There is "[a] rebuttable
presumption . . . that when Alaska bases a statute on one from
another jurisdiction, it adopts into the Alaska statute all
previous cases from the other jurisdiction's statute."[Fn. 22]
The Feres decision was handed down in 1950. Another notable case
interpreting Feres and the Federal Tort Claims Act, United States
v. Brown, [Fn. 23] was published in 1954. Thus the Feres doctrine
was a well-established feature of the Federal Tort Claims Act when
the territorial legislature decided to adopt a similar act for
Alaska. Since there is no basis for rebutting the presumption that
a borrowed statute carries with it prior judicial interpretations,
Alaska's Claims Against the State Act should be construed as
adopting the interpretation which Feres gave to the Federal Tort
Claims Act.
The Supreme Court in Feres gave as one reason for its
decision that "no American law . . . ever has permitted a soldier
to recover for negligence, against either his superior officers or
the Government he is serving."[Fn. 24] Further, the Feres Court
observed that it knew of no state "which has permitted members of
its militia to maintain tort actions for injuries suffered in the
service . . . ."[Fn. 25] The Court thus concluded that to permit
service personnel to sue their commanders in tort would be "to
visit the Government with novel and unprecedented liabilities"
beyond the purposes of the Federal Tort Claims Act. [Fn. 26] It is
hard to believe that the legislature in modeling the Alaska Claims
Act on the Federal Tort Claims Act meant to permit the kind of
claim that Feres, in interpreting the Federal Tort Claims Act, had
already rejected as novel and unprecedented.
Further, AS 26.05.060 explicitly provides that the Alaska
National Guard and its members "are subject to all federal laws and
regulations relating to the National Guard and Naval Militia of the
several states and territories of the United States." The Feres
doctrine applies to the National Guards of the several states. The
doctrine is a matter of federal law. By application of AS
26.05.060 it should also apply to the Alaska National Guard.
Today's opinion does not appear to completely reject all
forms of intra-military immunity. Instead, the court suggests that
where an action is "uniquely military"or requires "military
expertise"to evaluate, a case for immunity might exist. [Fn. 27]
As a dividing line separating immune from non-immune conduct, the
majority's "uniquely military/military expertise"test strikes me
as being very difficult to apply. In a way it resembles the now
thoroughly discredited "governmental/proprietary"dichotomy
formerly used to determine municipal immunity. [Fn. 28] No case of
which I am aware uses a "uniquely military/military expertise"test
as a means to separate immune from non-immune activity.
Further, the test proposed by the majority would result
in inappropriate intrusion into the affairs of military discipline
and decision-making in a great many instances. For example, if one
National Guard member sued another National Guard member in tort
for a battery which occurred while the two were filing documents in
an office, such a suit would be permitted under the test proposed
by the majority. Filing is clearly not a "uniquely military"
activity. Yet, the activity (battery by one serviceperson against
another) clearly and directly implicates military discipline and
command structure. It would be inappropriate for a civilian court
to step in and adjudicate the dispute, because to do so could
compromise the National Guard's ability to discipline its own
members. [Fn. 29]
Moreover, it is unclear which side of the "uniquely
military/military expertise"line the present case should fall. We
are told that the plane, a C-12 transport, was a military aircraft
owned by the United States, that it was piloted by military
personnel, and that all the passengers were military under military
orders. I assume that the navigation and communication systems on
the plane were military, that the plane was built to specifications
under a military contract, and that military standards exist
governing how planes such as this should be flown. If this is
true, then to some degree military uniqueness and expertise will be
present, but it will remain unclear as to whether that degree is
sufficient to impart immunity.
It seems to me that the uncertainty implicit in the
suggested "uniquely military/military expertise"test of the
majority is a good reason to adhere to the "incident to service"
test which distinguishes immune from non-immune activities under
the doctrine of intra-military immunity. Even if the majority's
test were certain of application, it would still be necessary to
litigate each case fairly extensively in order to develop the
necessary facts to apply the test. Avoidance of such litigation is
one of the reasons for the intra-military immunity doctrine.
Justice Scalia, writing for the majority in United States v.
Stanley, [Fn. 30] discussed and rejected other proposed tests more
inclusive of liability than the "incident to service"test. He
wrote:
Stanley underestimates the degree of
disruption that would be caused by the rule he proposes. A test
for liability that depends on the extent to which particular suits
would call into question military discipline and decisionmaking
would itself require judicial inquiry into, and hence intrusion
upon, military matters. Whether a case implicates those concerns
would often be problematic, raising the prospect of compelled
depositions and trial testimony by military officers concerning the
details of their military commands. Even putting aside the risk of
erroneous judicial conclusions (which would becloud military
decisionmaking), the mere process of arriving at correct
conclusions would disrupt the military regime. The "incident to
service"test, by contrast, provides a line that is relatively
clear and that can be discerned with less extensive inquiry into
military matters.[ [Fn. 31]]
Although the majority accurately cites State, Department
of Military & Veteran's Affairs v. Bowen [Fn. 32] for the
unexceptional proposition that not all questions that involve
military people require "military expertise"or will interfere with
a particular military mission, [Fn. 33] it does not follow that
Bowen rejected the doctrine of intra-military immunity. Bowen in
fact does not mention this doctrine, or Feres, and none of the
briefs filed before this court in that case did so either. Bowen
was an administrative appeal in which the question was whether a
National Guard officer who was involuntarily terminated had a right
to a pre-termination hearing. We answered that question in the
affirmative based on a federal statute permitting termination of
Guard personnel "as provided by the laws of the State"; [Fn. 34] we
construed the reference to the laws of the state in the federal
statute to include the due process clause of the state constitution
which requires pre-termination hearings for government employees.
[Fn. 35]
In conclusion, more than fifty years after Feres v.
United States was decided, the observations of Justice Jackson,
writing for a unanimous Court in Feres, remain true. No state has
permitted members of its National Guard to maintain incident to
service tort claims against the state. To do so would still be
both "novel and unprecedented." I believe that we should continue
to follow the accumulated wisdom implicit in more than half a
century of decisional law.
Today's decision sets off on a course that conflicts with
the doctrine of intra-military immunity. That doctrine must be
followed, in my opinion, because it is a matter of federal law
based on federal policies protective of military autonomy.
Further, the Feres doctrine was implicitly adopted as a matter of
territorial and state law when the Alaska Claims Act, modeled on
the Federal Tort Claims Act, was adopted. Today's opinion also
seems to adopt a confusing and unworkable test which purports to
distinguish between uniquely military activities and those
involving military expertise, immune to civilian judicial
oversight, and activities which are not uniquely military and do
not require military expertise, which civilian courts may review.
The distinction is not only unmanageable as a practical matter, but
it also inappropriately exposes military discipline, command
structure, and decision-making to civilian scrutiny -- precisely
what the Feres doctrine is designed to prevent.
I therefore dissent.
FOOTNOTES
Footnote 1:
28 U.S.C.A. sec.sec. 1346(b)(1), 2671-2680 (West 1994 & Supp.
1999).
Footnote 2:
Feres v. United States, 340 U.S. 135 (1950).
Footnote 3:
See id. at 146.
Footnote 4:
See T.P.D. v. A.C.D., 981 P.2d 116, 118 (Alaska 1999) (citing
Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995)).
Footnote 5:
Id. at 119 (citing Great Am. Ins. Co. v. Bar Club, Inc., 921
P.2d 626, 627 (Alaska 1996)).
Footnote 6:
340 U.S. 135, 146 (1950).
Footnote 7:
28 U.S.C.A. sec. 1346(b)(1) (West Supp. 1999).
Footnote 8:
United States v. Brown, 348 U.S. 110, 112 (1954).
Footnote 9:
See United States v. Shearer, 473 U.S. 52, 57-59 (1985).
Footnote 10:
See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666,
673-74 (1977).
Footnote 11:
See United States v. Johnson, 481 U.S. 681, 683, 691-92
(1987).
Footnote 12:
See id. at 692-93 (Scalia, J., dissenting). Justices Brennan,
Marshall, and Stevens joined Justice Scalia in this dissent.
Footnote 13:
Id. at 693.
Footnote 14:
Id. at 700.
Footnote 15:
See Costo v. United States, 248 F.3d 863, 869-76 (9th
Cir. 2001) (Ferguson, J., dissenting, arguing that Feres doctrine
"violates the equal protection rights of military service men and
women,""violates our constitutional separation of powers,"and
constitutes "a judicial re-writing of an unambiguous and
constitutional statute"). See also Estate of McAllister v. United
States, 942 F.2d 1473, 1480 (9th Cir. 1991) ("In [affirming the
district court], we follow a long tradition of reluctantly
acknowledging the enormous breadth of a troubled doctrine.").
Footnote 16:
See id. at 864-69 ("reluctantly"concluding that the case
"falls within the [Feres] doctrine's ever-expanding reach"and
therefore applying the Feres doctrine "without relish"). See also
Estate of McAllister, 942 F.2d at 1480 ("reluctantly"applying
Feres).
Footnote 17:
However, we have implicitly rejected the Chappell extension of
the Feres doctrine that precluded all constitutional claims by
soldiers against their superiors. See Chappell v. Wallace, 462
U.S. 296, 304 (1983). We held in State, Dep't of Military and Vet.
Affairs v. Bowen, 953 P.2d 888 (Alaska 1996), that a guard member
could bring a constitutional claim against a superior if the
question was "not one of military expertise or one which causes
interference with the military mission." Id. at 896 (footnote
omitted).
Footnote 18:
State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (citation and
internal quotation marks omitted).
Footnote 19:
Alaska Statute 09.50.250 is entitled "ACTIONABLE CLAIMS
AGAINST THE STATE." It provides:
A person or corporation having a contract,
quasi-contract, or tort claim against the state may bring an action
against the state in a state court that has jurisdiction over the
claim. A person who may present the claim under AS 44.77 may not
bring an action under this section except as set out in AS
44.77.040(c). A person who may bring an action under AS 36.30.560-
36.30.695 may not bring an action under this section except as set
out in AS 36.30.685. However, an action may not be brought under
this section if the claim
(1) is an action for tort, and is based
upon an act or omission of an employee of the state, exercising due
care, in the execution of a statute or regulation, whether or not
the statute or regulation is valid; or is an action for tort, and
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;
(2) is for damages caused by the
imposition or establishment of a quarantine by the state;
(3) arises out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference
with contract rights; or
(4) arises out of the use of an ignition
interlock device certified under AS 33.05.020(c).
Footnote 20:
The state cites Stauber v. Cline, 837 F.2d 395, 397-99 (9th
Cir. 1988), for the proposition that the Ninth Circuit has held
that Feres bars claims against the State of Alaska, and that this
is therefore settled law. We disagree. This assertion is in
conflict with Article IV Section 2(a) of the Alaska Constitution
that states: "The supreme court shall be the highest court of the
state, with final appellate jurisdiction."
Footnote 21:
See Mangan v. Cline, 411 N.W.2d 9, 11-12 (Minn. App. 1987);
Zaccaro v. Parker, 645 N.Y.S.2d 985, 990-91 (Sup. Ct. 1996), aff'd
mem., 671 N.Y.S.2d 362 (App. Div. 1998); Wade v. Gill, 889 S.W.2d
208, 209-10, 214-15 (Tenn. 1994); Newth v. Adjunct General's Dep't
of Tex., 883 S.W.2d 356, 357 (Tex. App. 1994).
Footnote 22:
See Trankel v. State, Dep't of Military Affairs, 938 P.2d 614,
621 (Mont. 1997).
Footnote 23:
See id. (emphasis omitted) (quoting Mont. Const. Art. II, sec.
16).
Footnote 24:
See Emsley v. Army Nat'l Guard, 722 P.2d 1299, 1302 (Wash.
1986) (citing Wash. Rev. Code sec. 4.92.090 (1963)).
Footnote 25:
See id.
Footnote 26:
See id. at 1303.
Footnote 27:
See id. at 1303-04.
Footnote 28:
See AS 09.50.250(1).
Footnote 29:
See State v. Abbott, 498 P.2d 712, 721-22 (Alaska 1972).
Footnote 30:
See id.
Footnote 31:
Id. at 721 (brackets in original) (internal citations and
quotation marks omitted) (quoting Johnson v. State, 447 P.2d 253,
260 (Cal. 1968)).
Footnote 32:
953 P.2d 888, 896 (Alaska 1998).
Footnote 33:
The superior court did not reach this issue because it granted
summary judgment based on the Feres doctrine. In order to provide
guidance to the superior court on remand, we discuss it now.
Footnote 34:
Taranto v. North Slope Borough, 909 P.2d 354, 358 (Alaska
1996) (internal quotation marks omitted) (quoting Luth v. Rogers
and Babler Constr. Co., 507 P.2d 761, 764-65 n.14 (Alaska 1973)).
Footnote 35:
490 P.2d 1200, 1203-04 (Alaska 1971).
Footnote 36:
See Kastner v. Toombs, 611 P.2d 62, 64 (Alaska 1980).
Footnote 37:
We use the phrase "the borrowed employee doctrine"here in
place of the former term "the borrowed servant doctrine."
Footnote 38:
See 611 P.2d at 65-66.
Footnote 39:
See id. at 65 & n.4.
Footnote 40:
See AS 09.17.060.
Footnote 41:
32 U.S.C.A. sec. 709(d) (West Supp. 1999).
Footnote 42:
Id., sec. 709(b)(1).
Footnote 43:
See id., sec. 709(b)(2).
Footnote 44:
See id., sec. 709(b)(3).
Footnote 45:
See State, Dep't of Military and Vet. Affairs v. Bowen, 953
P.2d 888, 894 (Alaska 1998).
Footnote 46:
See 32 U.S.C.A. sec. 502(f) (West Supp. 1999); Bowen, 953 P.2d
at
891.
Footnote 47:
See supra Parts II, IV.B.1.a.
Footnote 48:
See Kastner v. Toombs, 611 P.2d 62, 65-66 (Alaska 1980).
Footnote 49:
Reader v. Ghemm Co., 490 P.2d 1200, 1203 (Alaska 1971)
(quoting 1 Restatement (Second) of Agency sec. 227 (1957)).
Footnote 50:
See id. (citing 1 Restatement (Second) of Agency sec. 227 cmt.
a
at 501).
Footnote 51:
See id. (citations omitted).
Footnote 52:
Id.
FOOTNOTES (Dissent)
Footnote 1:
340 U.S. 135 (1950).
Footnote 2:
Id. at 146; see Durant v. Neneman, 884 F.2d 1350, 1352 (10th
Cir. 1989), cert. denied, 493 U.S. 1024 (1990).
Footnote 3:
See, e.g., Wade v. Gill, 889 S.W.2d 208, 214 (Tenn. 1994)
(Feres doctrine precludes state claim for battery.).
Footnote 4:
See, e.g., Newth v. Adjutant Gen.'s Dep't of Texas, 883 S.W.2d
356, 359-60 (Tex. App. 1994) (Feres doctrine precludes claim
alleging violation of state whistleblower act.).
Footnote 5:
See, e.g., Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034
(5th Cir. 1986) (Constitutional claims barred by Feres doctrine.).
Footnote 6:
See, e.g., Uhl v. Swanstrom, 79 F.3d 751, 756 (8th Cir. 1996)
(Civil rights and Privacy Act suit barred by Feres doctrine.); see
also Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1008-09 (8th
Cir. 1989) (Race discrimination suit brought by National Guard
member under 42 U.S.C. sec.sec. 1981 and 1983 barred by Feresdoctrine.).
Footnote 7:
See, e.g., United States v. Johnson, 481 U.S. 681, 692 (1987);
see also Feres, 340 U.S. at 146.
Footnote 8:
See Crawford, 794 F.2d 1034 (Dismissing claims of
constitutional violations against Texas Army National Guard and
individual military personnel.).
Footnote 9:
837 F.2d 395 (9th Cir. 1988).
Footnote 10:
Id. at 398-99.
Footnote 11:
125 F.3d 800 (9th Cir. 1997).
Footnote 12:
Id. at 804-05 (emphasis added).
Footnote 13:
See, e.g., Speigner v. Alexander, 248 F.3d 1292, 1298 (11th
Cir. 2001); Meister v. Texas Adjutant Gen.'s Dep't, 233 F.3d 332,
338 (5th Cir. 2000); Jones v. State, Div. of Military & Naval
Affairs, 166 F.3d 45, 52 (2nd Cir. 1999); Wright v. Park, 5 F.3d
586, 590-91 (1st Cir. 1993); Knutson v. Wisconsin Air Nat'l Guard,
995 F.2d 765, 770-71 (7th Cir. 1993); Wood v. United States, 968
F.2d 738, 740 (8th Cir. 1992); Watson v. Arkansas Nat'l Guard, 886
F.2d 1004, 1009 (8th Cir. 1989); Crawford v. Texas Army Nat'l
Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986); Brown v. United
States, 739 F.2d 362, 366 (8th Cir. 1984); Martelon v. Temple, 747
F.2d 1348, 1350-51 (10th Cir. 1984); Mollnow v. Carlton, 716 F.2d
627, 629-30 (9th Cir. 1983); Gordon v. Illinois Nat'l Guard, 46 F.
Supp. 2d 817, 819 (C.D. Ill. 1999); Uhl v. Swanstrom, 876 F. Supp.
1545, 1570 (N.D. Iowa 1995); Egloff v. New Jersey Air Nat'l Guard,
684 F. Supp. 1275, 1283 (D. N.J. 1988); Williams v. Colorado Air
Nat'l Guard, 821 P.2d 922, 925 (Colo. App. 1991); Estate of Burris
v. State, 759 A.2d 802, 814 (Md. 2000); Harris v. Missavage, 418
N.W.2d 687, 690 (Mich. Ct. App. 1987); Zaccaro v. Parker, 671
N.Y.S.2d 362 (N.Y. App. Div. 1998); Newth v. Adjutant Gen.'s Dep't
of Texas, 883 S.W.2d 356, 360 (Tex. App. 1994).
Footnote 14:
By contrast, so far as I am aware, only two jurisdictions,
Montana and Washington, reject the doctrine of intra-military
immunity with respect to the National Guard. See Trankel v. State,
Dep't of Military Affairs, 938 P.2d 614, 621 (Mont. 1997); Emsley
v. Army Nat'l Guard, 722 P.2d 1299 (Wash. 1986); Kirtley v. State,
748 P.2d 1128 (Wash. App. 1987). But the courts of these states
nonetheless make clear that claims by Guard personnel arising out
of their Guard employment against the state are not permitted for
other reasons. See Trankel, 938 P.2d at 617-18, 623; and see
Schuff v. A.T. Klemens & Son, 16 P.3d 1002, 1021 (Mont. 2000)
(explaining Trankel); Emsley, 722 P.2d at 1304 (concurring opinion
of Justice Callow); Kirtley, 748 P.2d at 1130.
Footnote 15:
Bowen, 125 F.3d at 805. See also Day v. Massachusetts Air
Nat'l Guard, 167 F.3d 678, 684-85 (lst Cir. 1999) (where the First
Circuit indicated that there is a consensus view that supports a
federal immunity, based on "federal policies to protect military
autonomy,"applicable to state claims where the defendants' conduct
is within the scope of their employment by the National Guard).
Footnote 16:
462 U.S. 296 (1983).
Footnote 17:
Id. at 301-302 (emphasis added).
Footnote 18:
Ch. 170, sec. 1, SLA 1957.
Footnote 19:
Ch. 101, sec. 26.01-06, SLA 1962.
Footnote 20:
See, e.g., State v. Abbott, 498 P.2d 712, 720 (Alaska 1972);
State v. I'Anson, 529 P.2d 188, 192 (Alaska 1974).
Footnote 21:
P.G. v. State, Dep't of Health & Human Servs., Div. of Family
& Youth Servs., 4 P.3d 326, 335 (Alaska 2000); see also State,
Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 457
(Alaska 1997).
Footnote 22:
City & Borough of Sitka v. Construction & Gen. Laborers Local
942, 644 P.2d 227, 231 n.8 (Alaska 1982). We also recognized and
applied this rule in City of Fairbanks v. Schaible, 375 P.2d 201,
207-08 (Alaska 1962) ("It [an interpretation by the Oregon Supreme
Court] then became the law in Alaska by reason of the well
established rule that a statute adopted from another state, which
has been construed by that state's highest court, is presumed to be
adopted with the construction thus placed upon it.").
Footnote 23:
348 U.S. 110 (1954) (Discharged veteran could maintain
malpractice action against VA hospital because the injuries
resulting from the malpractice were not received incident to
military service.).
Footnote 24:
Feres, 340 U.S. at 141.
Footnote 25:
Id. at 142.
Footnote 26:
Id.
Footnote 27:
See Slip Op. at 13.
Footnote 28:
The latter dichotomy has generally been abandoned because of
the great difficulty that courts had in determining when a
municipality was acting in a governmental capacity and when it was
acting in a proprietary capacity. Prosser, discussing some of the
imponderable questions posed by this dichotomy concluded that
"[t]here is little that can be said about such distinctions except
that they exist, that they are highly artificial, and that they
make no great amount of sense." William L. Prosser, Handbook of
the Law of Torts sec. 131, at 982 (4th ed. 1971).
Footnote 29:
Cf. Wade v. Gill, 889 S.W.2d 208 (Tenn. 1994) (ruling that
Feres doctrine precluded suit under factual situation described
above).
Footnote 30:
483 U.S. 669 (1987).
Footnote 31:
Id. at 682-83.
Footnote 32:
953 P.2d 888, 896 (Alaska 1998).
Footnote 33:
See Slip Op. at 13.
Footnote 34:
See 32 U.S.C. sec. 324(b).
Footnote 35:
Bowen, 953 P.2d at 894, 894-95.
