You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Guerrero v. AHFC (11/04/2005) sp-5954
Guerrero v. AHFC (11/04/2005) sp-5954
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ALEXANDER E. GUERRERO,
| ) |
|
a minor child, by his next friend and | ) Supreme
Court No. S-11024 |
|
father, CRISTIAN GUERRERO; | ) |
|
CRISTIAN GUERRERO and JUANA | ) Superior Court No.
3AN-96-8506 CI |
|
GUERRERO, individually, | ) |
|
| ) |
|
Appellants, | ) |
|
| ) |
|
v. | ) O P I N I O
N |
|
| ) |
|
ALASKA HOUSING FINANCE | ) |
|
CORPORATION and STATE OF | ) [No. 5954 - November 4,
2005] |
|
ALASKA, DEPARTMENT OF | ) |
|
TRANSPORTATION AND PUBLIC | ) |
|
FACILITIES, | ) |
|
| ) |
|
Appellees. | )
|
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Philip Paul Weidner, Weidner &
Associates, Inc., Anchorage for Appellants.
David Karl Gross and Stephen H. Hutchings,
Birch, Horton, Bittner and Cherot, Anchorage,
for Appellee Alaska Housing Finance
Corporation. Venable Vermont, Jr., Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee State of Alaska, Department of
Transportation and Public Facilities.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Alexander Guerrero was hit by a car as he crossed a
busy street near a public housing complex where he and his family
were living. His parents sued the Alaska Department of
Transportation and Public Facilities (the department), which
built and maintained the street, and the Alaska Housing Finance
Corporation (the corporation), which owned and operated the
housing complex. The Guerreros alleged negligent design,
construction, maintenance, and failure to warn. The superior
court dismissed the Guerreros complaint for failing to state a
viable claim, ruling that the department was immune and the
corporation owed no duty to protect tenants from injury off-
premises. We reversed and remanded for further proceedings,
finding the complaint sufficient on its face to allege
potentially viable claims against both defendants.1
On remand, the superior court allowed discovery to
proceed but eventually granted summary judgment to both
defendants, finding that the record revealed no grounds for
requiring the corporation to protect Guerrero from off-premises
danger, and no grounds for a viable claim against the department.
We affirm as to the corporation, but reverse in part as to the
department, holding that the record contains evidence that is at
least minimally sufficient to show that the department might have
owed and breached an operational duty to post adequate warning
signs.
II. FACTS AND PROCEEDINGS
This is the second time this case has come before us.
We summarized the relevant facts in the first appeal, Guerrero v.
Alaska Housing Finance Corporation, State of Alaska, Department
of Public Transportation (Guerrero I):
Five-year-old Alexander Guerrero was hit
by a car and severely injured as he attempted
to cross C Street near its intersection with
22nd Avenue in Anchorage.[2] The section of
C Street where the accident occurred is part
of a traffic couplet on A and C Streets (the
A/C Couplet)1 that was built by the Alaska
Department of Transportation and Public
Facilities (the department). At the time of
the accident, Alexander and his family lived
at the Loussac Family Housing Complex (the
Loussac Complex), a low-income housing
project sponsored by the Alaska Housing
Finance Corporation (the corporation), a
public corporation within the Alaska
Department of Revenue.2 The Loussac Complex
is directly adjacent to the accident scene,
situated between A Street on the east, C
Street on the west, 20th Avenue on the north,
and 22nd Avenue on the south.
The Guerreros sued the department and
the corporation, alleging negligence in the
design, construction, and maintenance of the
A/C Couplet and related pedestrian systems in
the vicinity of C Street and 22nd Avenue as
they relate to the occupants of the Loussac
Complex. They also alleged that the
corporation had a duty as a landlord to
ensure
__________________
1 The A/C traffic couplet consists of two
multi-lane, one-way streets A Street and C
Street that run in opposite directions and
are designed to channel rush-hour traffic
smoothly into and out of the downtown
Anchorage area.
2 See AS 18.56.020.
that conditions on its property did not
subject tenants to hazards on C Street.
The department and the corporation moved
to dismiss under Alaska Civil Rule 12(b)(6).
The department claimed discretionary function
immunity under AS 09.50.250(1). The
corporation argued, first, that its duty as a
landlord did not extend beyond its property
and, second, that it, too, was immune under
the discretionary function statute.
. . . .
[T]he superior court granted the defendants
motions and dismissed the case under Alaska
Civil Rule 12(b)(6), concluding that the
amended complaint failed to state a claim
upon which relief could be granted against
the department or the corporation. The court
ruled that the department was entitled to
discretionary function immunity under
AS 09.50.250(1) because installing or not
installing safety features in specific areas
is precisely the type of decision the
doctrine of sovereign immunity for
discretionary acts is meant to protect. The
court also ruled that the corporation had no
duty to protect the Guerreros from traffic
hazards, finding it firmly established that
the duty of safeguarding children against
obvious dangers off a landlords property does
not fall on the landowner.[3]
The Guerreros appealed, and we reversed. We first
determined that neither the department nor the corporation had
shown beyond doubt that they owed Guerrero no duty of due care.
We held that the department owed a generalized duty of due care
to pedestrians, and that this duty does not vanish simply because
the crossing alleged in the complaint was unlawful.4 We also
observed that a dismissal against the corporation on the duty
issue would not have been proper unless the only reasonable
inference was that the corporation owed the Guerreros no duty
whatsoever or owed a duty that was clearly and vastly narrower in
scope than the duty the Guerreros asserted.5 We noted that we
had never ruled that a landlords duty cannot extend off-premises
under certain circumstances and that the corporation
acknowledge[d] that it owe[d] a general duty to protect its
tenants from danger.6 And we found that a determination of the
scope of the corporations duty would depend on, among other
things, whether the corporation had obstruct[ed] access to a safe
pedestrian underpass at 19th Avenue and C Street, had funneled
pedestrians . . . toward the intersection at 22nd Avenue and C
Street, and whether the corporation had undertake[n] off-site
responsibilities, had influenced the projects design or plans or
retained a measure of influence or control over the adjoining
roadway.7 Because these questions could not be resolved on the
basis of the complaint alone, we held the corporation had failed
to establish that the scope of its duty to the Guerreros was
vastly narrower than the duty the Guerreros asserted.8
We further held that the defendants had not established
that the claims against them were barred by discretionary
function immunity. We emphasized that what qualifies [for
discretionary function immunity] often depends more on the
factual circumstances surrounding an agencys actions than it does
on the actions inherent nature.9 And we pointed to the fact that
where we have upheld orders of dismissal, we based our ruling on
an extensive factual record.10 We observed that the superior
court had dismissed the case at an early stage in the
proceedings, when the Guerreros [had] had no opportunity to
present evidence establishing the specific facts of their case.11
We concluded that the case should not have been dismissed without
discovery. Accordingly we reversed the superior courts dismissal
against both the department and the corporation and remanded so
that the Guerreros would have the opportunity to conduct
discovery.12
After the parties conducted discovery on remand, the
department and the corporation filed motions for summary
judgment, again arguing that they should prevail because they
owed the Guerreros no duty and were protected by discretionary
function immunity. The superior court granted summary judgment
to both defendants.
The Guerreros appeal.
III. DISCUSSION
A. Standard of Review
To prevail on a motion for summary judgment, the
moving party must offer admissible evidence demonstrating that
there are no disputed issues of material fact and the moving
party is entitled to a judgment as a matter of law.13 Once the
moving party has made a prima facie showing that there is no
genuine issue of material fact, the burden shifts to the non-
moving party to demonstrate that a genuine issue of fact exists
to be litigated by showing that it can produce admissible
evidence reasonably tending to dispute the movants evidence.14
Because the validity of a trial courts ruling on summary judgment
presents questions of law, we review the courts ruling
independently,15 basing our review on the entire trial court
record the affidavits, depositions, admissions, answers to
interrogatories and similar material. 16 In considering these
materials, we give the non-moving party . . . the benefit of all
reasonable inferences which can be drawn from the proffered
evidence.17
B. The Corporations Potential Liability
The Guerreros initially challenge the superior courts
order granting summary judgment to the corporation. In issuing
this order, the superior court found that nothing the corporation
could have done would have prevented the harm. The court also
found that the corporations decision not to fence off the housing
project or to warn tenants of the dangers posed by C Street
traffic did not enhance those dangers. The court reasoned that
Guerrero, upon leaving Loussac Manor, would have ended up on the
same public sidewalk faced with the same choice of whether to
cross the street at the designated areas regardless of any safety
measures taken by the corporation. The court further noted that
the location of the egress route did not eject[] children . . .
into a busy street but instead placed them on a public sidewalk
that was separated from C Street by a guardrail. Given these
circumstances, the court found that [t]he well-worn path is not
dangerous, and concluded that, even if the corporation owed a
duty to protect its tenants children from some off-site dangers,
this duty was vastly narrower than the one asserted by the
Guerreros and did not extend to protection from the dangers of C
Street. The Guerreros challenge this ruling.
In Guerrero I we acknowledged that we had never
addressed the issues of whether or when a landlord might have a
duty to protect or warn tenants about dangers occurring on land
adjacent to the landlords premises.18 We noted that other
jurisdictions are split on this issue:
[T]he traditional view still the decided
majority weighs against imposing a duty to
warn or otherwise protect tenants from
dangers of traffic on adjacent streets over
which the landlord has no right of
possession, management, or control. But an
emerging minority would impose a duty to
protect or warn in some situations; these
cases apply a standard of reasonable care
under the totality of the circumstances that
considers possession, management, and control
over conditions at the accident site to be
relevant factors but does not make their
absence dispositive as a matter of law.[19]
As in Guerrero I, we find it unnecessary here to
resolve the general issue of off-site liability. Even if
landlords have a duty to protect their tenants from some off-site
dangers, we think that the record does not support the Guerreros
claim that the corporation had a duty to protect them from the
dangers alleged in this case.
A number of courts have held that, under certain
circumstances, a landlord may have a duty to protect tenants from
off-site dangers. In Udy v. Calvary Corporation,20 a small child
was severely injured when he chased a basketball into a major
street that was immediately adjacent to his backyard.21 Before
renting the space for their mobile home, the parents had asked
the landlord whether the road adjacent to the space experienced
heavy traffic and indicated that, if so, they would not be
interested in renting the space.22 The landlord assured the
parents that there had never been any problems as a result of the
spaces close proximity to the busy street.23 The parents rented
the space only to discover that traffic was much worse than they
had been led to expect. They repeatedly asked for permission to
build a fence around their yard, but their landlord repeatedly
denied these requests.24 The landlord argued that he had no duty
to protect a tenant from dangers located outside the premises.25
The Arizona Court of Appeals disagreed, ruling that a landlords
duty to his tenants is not as a matter of law circumscribed by
the physical boundaries of the landlords property.26 The court
broadly stated that a landlord must take such precautions for the
tenants safety as a reasonably prudent person would take under
similar circumstances in light of the known and foreseeable
risks.27 But it also carefully narrowed its decision. The
landlord in the case had conceded that the absence of a fence was
a proximate cause of the accident; the court tailored its ruling
to this concession: Harm that is caused, in whole or in part, by
an activity or condition on particular premises cannot be viewed
as unforeseeable as a matter of law merely because it happens to
manifest itself beyond the property line.28 In Barnes v.
Black,29 a private sidewalk connected the childrens play area of
an apartment complex with the apartment buildings; the sidewalk
adjoined a driveway that sloped steeply downward to a busy
street.30 While riding his big wheel tricycle along the sidewalk,
a child lost control and rolled down the steep driveway into busy
traffic on the street below, where he was struck by a car and
killed.31 The defendant landlord argued that he had no duty to
protect his tenants from unreasonable risk of injury off the
premises on a public street over which [he] ha[d] no control.32
On appeal from an order granting the landlord summary judgment,
the California Court of Appeal rejected this argument, concluding
that the duty of care encompasses a duty to avoid exposing
persons to risks of injury that occur off site if the landowners
property is maintained in such a manner as to expose persons to
an unreasonable risk of injury offsite.33 In so concluding, the
court distinguished an earlier California decision declining to
hold the landlord liable after a child wandered from an apartment
building into an adjacent street and was hit by a car.34
Describing the earlier case, the Barnes court emphasized that its
facts established no close connection between the defendants
conduct and the childs injuries35 a circumstance that the Barnes
court viewed as disfavoring an off-site duty.36 Considering the
circumstances of its own case, the Barnes court found a
significant difference, observing that conditions on the
landlords property the configuration of the private sidewalk and
the driveway had directly contributed to the accident by causing
the child to be ejected into the public street.37 Barnes thus
reversed the trial courts order of dismissal.38
These cases and other similar decisions39 highlight
several useful factors to consider in deciding if an off-site
duty arose here: (1) whether the hazard was immediately adjacent
to the corporations property; (2) whether the corporation had any
right or ability to control or abate the off-site hazard; (3)
whether that hazard was as open and obvious to the projects
tenant as it was to the corporation; and (4) whether any activity
or condition on the corporations property contributed to the
accident or enhanced the adjacent danger.
The superior court found that the corporations failure
to take protective measures did not cause or enhance the hazard
presented by C Street. The court emphasized the corporations
uncontradicted evidence that the existing fence on the north side
of the apartments did nothing to obstruct access to the underpass
at 19th Avenue and C Street. Noting that the Guerreros had
acknowledged that the corporation was obliged to give them access
to C Street, the court also found that there appeared to be
nothing the corporation could have done to prevent them from
end[ing] up on the same public sidewalk faced with the same
choice of whether to cross the street at the designated areas or
not. The court accordingly ruled that even if the corporation
had some off-site duty, the evidence showed that the corporation
did not owe the Guerreros the duty at issue to protect them from
the dangers of C Street traffic.
We agree. The Guerreros undeniably offered
considerable evidence indicating that the corporation knew that
children living in the project could easily cross C Street and
that crossing the street would be dangerous even for adults.
This evidence might reasonably suggest that it was foreseeable
that a child from the project might be seriously injured when
attempting to cross C Street. But Guerrero cites no cases
holding that a landlords duty to protect tenants from off-
premises injury can be triggered by mere awareness of obvious
danger and foreseeable harm. To the contrary, as we have seen,
the case law illustrates that something more has invariably been
required to hold landlords liable for off-site harm.
The Guerreros maintain that the unfenced, well-worn
path leading toward the intersection of 22nd Avenue and C Street
contributed to the danger and established the needed additional
factor. But the superior court squarely addressed and rejected
this contention. The court noted that the uphill path did not
eject tenants into immediate danger; instead, it deposited them
on a public sidewalk. There they were protected from traffic by
a guardrail that separated the sidewalk from C Street; moreover,
the sidewalk and guardrail ran continuously along the west side
of the Loussac Manor property, so tenants could readily gain
access to the sidewalk from other areas of the project in fact,
the corporation had a duty to make C Street accessible to its
tenants. Given these circumstances, the superior court could
properly find that the well-worn path did not expose tenants to
any increased risk from the dangers of traffic passing by on the
far side of the guardrail.
Nor does the record reveal any circumstances indicating
that the corporation was in a better position than its tenants to
know about the open and obvious dangers of C Street traffic, or
that it had any special ability or right to control or abate any
hazard at the intersection of 22nd Avenue and C Street. Because
we see no basis for recognizing an off-site landlord duty in the
undisputed circumstances presented here, we affirm the superior
courts order granting summary judgment to the corporation.
C. The Departments Potential Liability
In Guerrero I we ruled that the Guerreros asserted a
potentially viable negligence claim based on their allegations
that the department breached its duty to protect pedestrians from
unreasonable danger posed by traffic at the intersection of
C Street and 22nd Avenue.40 The Guerreros based this claim
largely on allegations of negligent design, construction, and
maintenance of the A/C traffic couplet and related pedestrian
systems in the vicinity of C Street and 22nd Avenue.41 After a
period of discovery on remand after Guerrero I, the department
moved for summary judgment on several grounds, arguing that it
had no duty to take the specific actions the Guerreros sought
(actions including the placement of warning signs, signals,
and/or a crosswalk or pedestrian overpass at C Street and 22nd
Avenue); that liability for such actions was barred by
discretionary function immunity in any event; and that the
undisputed facts of the case simply made some of the Guerreros
specific theories of liability irrelevant. The superior court
granted the departments motion summarily, without specifying the
grounds for its ruling.
The Guerreros challenge the superior courts summary
judgment order, insisting that the record raises triable issues
of fact to support their claim against the department. In
response, the department reasserts the arguments it raised below.
When a trial court grants summary judgment without stating its
reasons, we presume[] that the court ruled in the movants favor
on all of the grounds stated. Accordingly, the summary judgment
should be reversed only if no ground asserted supports the trial
courts decision.42
1. Duty
The department asserts initially that our decision in
Walden v. Department of Transportation43 compels the conclusion
that the department did not owe the Guerreros a duty to install
warning signs or markings on C Street. Asserting that Walden
embodies the more modern duty before immunity analysis, the
department urges us to hold that [t]he Guerreros failure to
recognize the priority of duty analysis, and to discuss in any
manner the controlling statutes for signing, marking and
signaling, is fatal to their signing and marking claims. But the
departments duty argument overstates our holding in Walden.
Here, as in Guerrero I,44 it seems appropriate to start
by taking stock of our holding in Arctic Tug & Barge, Inc. v.
Raleigh, Schwarz & Powell.45 In Arctic Tug we noted that our
cases draw a distinction between questions concerning precisely
how far a duty extends and questions concerning the dutys general
existence.46 We noted that a threshold inquiry into duty is
reserved for the second category of questions those concerning
the existence of a general duty.47 We expressly observed that our
law disfavors summary adjudication for the first category of
questions those concerning the precise scope of that duty, or of
whether particular conduct did or did not breach it.48 And we
emphasized that summary judgment is inappropriate on these
narrower duty questions unless the only reasonable inference from
the undisputed facts is that one party owed another no duty
whatsoever or owed a duty clearly and vastly narrower in scope
than the one that the other party asserts in opposing summary
judgment.49
Viewed in perspective, our decision in Walden simply
illustrates Arctic Tugs point concerning the limited
circumstances under which narrow duty questions may properly be
decided summarily. In Walden, a car slid off the highway on an
icy curve, and one of its passengers, a child, was injured;
Walden, the childs mother, sued the department, claiming
negligence in failing to sand the road properly and in failing to
post a warning sign at the curve.50 She based her warning-sign
claim entirely on the theory that the Manual on Uniform Traffic
Control Devices (Traffic Manual) would have called for a warning
sign to be placed at the curve where the accident occurred. But
the theory turned out to be unfounded. At the summary judgment
hearing, the states expert applied the Traffic Manuals technical
standards for placing warning signs on curves and calculated that
they would not have required or recommended a sign at the
accident site, but would merely have permitted one. Waldens own
expert then performed the same calculations and agreed with the
departments conclusion. Walden offered no other factual theory
to support her warning-sign negligence claim, so the superior
court, seeing nothing left of the claim, granted summary
judgment.
We affirmed on appeal. As the department correctly
observes here, we ruled on the basis of duty, concluding that
Walden had failed to establish that the department had a duty to
install a warning sign. But in Walden the states general duty of
due care toward the injured child was not contested, and we
simply concluded, as did the trial court, that Walden had no
factual basis to support her warning-sign claim, so that in those
circumstances, the exercise of reasonable care did not impose a
duty on the state to post a sign at the accident. In keeping
with Arctic Tug, Walden merely recognized that summary judgment
was proper as to the specific scope of the duty because the
undisputed facts conclusively showed that the plaintiffs sole
theory of duty had no factual merit. Nothing in Walden suggests
that all warning-sign claims or signage claims pose broad
questions concerning the existence of a general duty.
As we expressly recognized in Guerrero I, the state
does owe a general duty toward pedestrians who cross public
roadways, and the existence of that duty here does not turn on
the particularized facts of this case.51 The only duty questions
left open by Guerrero I are fact-specific questions relating to
scope. At the summary judgment stage, the vastly narrower test
set out by Arctic Tug governs such questions. Because this
standard overlaps the demanding summary judgment test we usually
apply in reviewing the sufficiency of evidence to show possible
negligence,52 we see no need to undertake a preliminary, more
modern analysis of the departments general duty toward the
pedestrians.
2. Immunity
The department next claims that the Guerreros action is
barred by sovereign immunity. Like the federal government,
Alaska has enacted a statutory waiver of sovereign immunity.53
Although this waiver allows the state to be sued for claims
arising in tort, it protects the state from suit when the claim
is 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.54 Not all acts that involve
discretion or judgment are immune, for almost any act, even
driving a nail, involves some discretion. 55 In determining
whether an act falls within the discretionary function exception,
we distinguish between decisions that involve basic planning or
policy and those that are merely operational in the sense that
they implement plans or carry out policy.56 The state retains
immunity for the former but not for the latter.57 Once the state
has made a planning-level decision to undertake a project, it
does not have discretion to implement that decision negligently.58
We look to the purposes underlying discretionary
function immunity when deciding whether a particular decision is
immune.59 Discretionary function immunity preserve[s] the
separation of powers inherent to our form of government by
recognizing that it is the function of the state, and not the
courts or private citizens, to govern.60 We have indicated that
on basic matters of policy the courts should refrain from second-
guessing the legislative and executive branches.61 Discretionary
function immunity also prevents courts from intrud[ing] into
realms of policy exceeding their institutional competence.62 As
we have acknowledged, [t]he judicial branch lacks the fact-
finding ability of the legislature and the special expertise of
the executive departments.63 Finally, we have recognized that
discretionary function immunity protects the publics interest in
preventing the enormous and unpredictable liability that would
result from judicial reexamination of the decisions of the other
branches of government.64
Our cases have recognized that if decisions require the
state to balance the detailed and competing elements of
legislative or executive policy, they nearly always deserve
protection by discretionary function immunity.65 Similarly,
[d]ecisions about how to allocate scarce resources, will
ordinarily be immune from judicial review.66 On the other hand,
we have ruled that if the state has breached a statute or
regulation expressly requiring it to act under specific
circumstances, its decisions are not protected by discretionary
function immunity.67 And when a statute or regulations are
permissive simply neutral a decision is more likely protected,
especially when the permissiveness suggests a need to balance
policy-related considerations.68
Although the dividing line between planning and
operational decisions may often be hard to discern,69 we have long
recognized that, [u]nder the planning/ operational test,
liability is the rule, immunity the exception. 70 And when the
state acts without the protection of discretionary function
immunity, the scope of the states duty should be defined by
ordinary negligence principles.71
By . . . applying traditional concepts of
tort liability, the administration is not
being told that it may not make a particular
decision and act pursuant thereto. It is
merely being made to pay the entire
foreseeable costs of its activities.[72]
Here, the Guerreros argue that once it undertook to
build the A/C couplet, the department was required to implement
its decision safely. So in the Guerreros view, the departments
design and construction decisions automatically became
operational and cannot be treated as immune policy or planning
choices. We have no quarrel with the Guerreros premise that the
departments decision to undertake the A/C couplet obliged it to
implement the project safely. But the departments undeniable
duty to act safely did not automatically shift all of its post-
undertaking decisions to the operational side of the
planning/operational dichotomy.
In Japan Air Lines Co. v. State, for instance, we held
that once the state made a basic policy decision to build an
airport taxiway for jumbo jets, its ensuing design decisions were
operational decisions which merely implemented the basic policy
formulation to build a [suitable] taxiway.73 Yet in summarizing
the basis for our decision, we emphasized that it turned on the
nature of the design decisions at issue, and did not
automatically flow from the states commitment to undertake the
runway project:
In summary, the state may be held liable
for injuries which result from negligent
designs. The issue, as always, is whether
the design decision in question involved a
basic policy formulation . . . or whether the
design decision at issue was merely part of
the implementation or execution of a basic
policy decision, and therefore not immune.[74]
More recently, in Kiokun v. State, Department of Public Safety,
we similarly recognized that even though the states decision to
initiate a search-and-rescue operation amounts to a policy
decision to take action, not necessarily all[] decisions made
after a search and rescue is commenced may be operational.75 In
each case, we recognized, the determination turns on the nature
of the specific decision at issue.
The Guerreros nonetheless insist that their evidence
here reveals various negligent operational design and
construction decisions concerning the area of the A/C couplet
near C Street and 22nd Avenue. For specific examples, the
Guerreros point to the departments decisions not to install an
overpass near the intersection, not to install a crosswalk, not
to install an overhead lighted crosswalk sign, not to install
traffic control devices to prohibit pedestrian crossing, and not
to install warning signs, such as an advance pedestrian crossing
sign.
Under our case law, some of these examples unmistakably
belong in the category of immune policy and planning decisions.
Our cases have previously recognized that decisions concerning
the installation and location of traffic signals require
substantial policy considerations and raise significant resource-
allocation questions. They therefore qualify as immune under
Alaskas planning-operational test of discretionary function
immunity.76 We have reached the same conclusion regarding the
construction of pedestrian overpasses77 and other highway projects
requiring the state to allocate scarce traffic-safety resources.78
To the extent that the Guerreros base their claim on the
departments negligence in failing to build a pedestrian overpass
near C Street and 22nd Avenue or to install a lighted crosswalk
or other comparable traffic control devices, our cases indicate
that discretionary function immunity would bar the claim unless
the project at issue here, the A/C traffic couplet was governed
by clearly established standards that mandated their
installation.
In Jennings v. State, for example, we considered the
case of a child killed by a car while she walked across an
intersection on her way home from school. The accident site had
not been designated as a school zone and fell outside the
mandatory school-zone boundaries specified by state regulations.
Given these circumstances, we held that the states failure to
designate the intersection as a school zone or take other safety
measures, such as building a pedestrian overpass, had rightly
been characterized [by the superior court] as planning level
decisions, and thus within the ambit of the statutorily created
discretionary function exception to the states tort liability.79
Yet after noting that a different safety regulation would have
applied to a school zone,80 we went on to observe that we might
have reached the opposite conclusion if the state had actually
chosen to include the intersection in a school zone: [H]ad the
planning level decision been made to delineate this area a school
zone and then the state negligently signed the area or
negligently constructed a crosswalk, a cause of action might have
arisen against the state for these negligently performed
operational level acts.81
In keeping with this cautionary note from Jennings, we
later held in Japan Air Lines Co. v. State that immunity did not
apply to design decisions made after the state decided to build
an airport runway for wide body jets that turned out to be
dangerously narrow.82 Citing Jennings, we held that, because
nationwide standards established the minimum width for runways to
be used by wide body jets, once the state made the policy
decision to build a runway for wide body jets, its ensuing
decision to design and build the runway merely implemented its
policy choice and amounted to an operational action.83
Here, the Guerreros have not identified any special
standards that became applicable to the intersection of C Street
and 22nd Avenue by virtue of the departments decision to build
the A/C couplet. And the law and regulations that ordinarily
guide the department in deciding when to build pedestrian
overpasses and install traffic signals do not appear to call for
additional safety measures of this kind.
Alaska law distinguishes between traffic control
signals on the one hand, and highway signs or marking and
posting on the other, addressing these categories in two related
provisions of the Alaska Statutes.84 Both provisions, in turn,
recognize and incorporate the nationwide standards set out in the
1988 Traffic Manual the version of the Manual that was in effect
at the time of Guerreros accident.85 The two statutes expressly
require that the departments regulations must correlate with and,
as far as possible, conform to the Traffic Manuals
recommendations.86 The Traffic Manual itself sets out a broad
array of recommendations for using various kinds of traffic
signals, devices, and signs.
On the subject of traffic signals, the Traffic Manual
lists a set of four criteria, or warrants, to be used in
determining whether a traffic signal should be installed at a
given location. Evidence in the record, including evidence from
the Guerreros own expert indicates that the intersection of C
Street and 22nd Avenue meets none of these warrants: The
intersection does not have significant vehicular cross traffic;
it is not a designated school crossing; it has not experienced
numerous accidents; and it does not meet the minimum requirement
for pedestrian volume.87 Although the Traffic Manual does not
categorically prohibit installing a signal when none of these
warrants is met, it does expressly recommend against taking such
action, advising that in such situations,[t]raffic control
signals should not be installed.88 Because the department had a
statutory duty to conform its practices as far as possible with
the Traffic Manuals recommendations, it would need a sound,
independent policy reason before installing a sign against the
Traffic Manuals recommendation. The Guerreros make no showing of
any such reason; and even if they did, the departments failure to
make a policy-based choice to disregard the Traffic Manuals
recommendation would, by definition, amount to an immune policy
decision.
The departments decision not to place a crosswalk at
the intersection is immune for similar reasons. Because a
crosswalk would obviously affect traffic movement and could
potentially conflict with the departments basic decision to use
the A/C couplet to move traffic quickly into and out of downtown
Anchorage, determining whether to locate a crosswalk at C Street
and 22nd Avenue would require consideration of policies
indistinguishable from those that would be involved in deciding
whether to place a traffic signal at the intersection a decision
that our cases characterize as an immune policy choice.89
Moreover, the Traffic Manual points to the same
conclusion. Specifically, in the circumstances at issue here, it
appears to recommend against placing a crosswalk at C Street and
22nd Avenue. According to the Traffic Manual, crosswalks should
be avoided absent a substantial conflict between pedestrians and
traffic, and their installation across roads like C Street would
not be justified unless supported by a formal study:
Crosswalks should be marked at all
intersections where there is substantial
conflict between vehicle and pedestrian
movements. . . . Crosswalk markings should
not be used indiscriminately. An engineering
study should be required before they are
installed at locations away from traffic
signals or STOP signs.[90]
The Guerreros submitted evidence of some conflict
between pedestrians and traffic. But they have not shown
substantial conflict under the Traffic Manuals criteria, and the
department submitted evidence that only one reported injury-
accident Alexander Guerreros had occurred since the A/C
couplets completion. Even interpreted in the light most
favorable to the Guerreros, the evidence fails to support a
reasonable inference that the Traffic Manual would have
recommended a crosswalk at 22nd Avenue and C Street.
The Guerreros fall even shorter of the mark in
suggesting that the department committed operational negligence
by failing to erect a pedestrian overpass. The foreseeably high
costs of building a pedestrian overpass would inevitably raise
concerns over allocating the departments resources, thus raising
substantial policy issues. Moreover, the Guerreros do not point
out any provision of law, regulation, or the Traffic Manual that
would mandate or even recommend that an overpass be installed at
the intersection of C Street and 22nd Avenue. And absent any
evidence establishing a history of substantial conflict between
pedestrian and traffic uses at the intersection there appears to
be no reasonable basis to infer that an overpass might be
required.
By contrast, the Guerreros remaining theory of
operational negligence that the department failed to post
adequate warning signs at the intersection raises a closer
question. As previously noted, both Alaska law and the Traffic
Manual draw distinctions between traffic signals and traffic
signs. Alaska Statute 19.10.040 unequivocally requires the
department to mark highways under its jurisdiction and to
implement a uniform system of marking and posting these highways.
On three prior occasions we have unmistakably held that these
provisions give the department an operational duty to exercise
due care in ensuring that roadways have signs and markings that
are adequate to protect the public from reasonably foreseeable
traffic hazards.
In State v. IAnson,91 the department failed to stripe
and mark a portion of the highway to establish a no-passing zone
at a point where the highway joined with an access road. A
serious accident occurred when a car attempted to turn onto the
access road and was hit from behind by a motorist trying to pass
in the highways left lane. Although the Traffic Manual would
have called for a no-passing zone to be marked at the site, the
department argued that deciding whether to create a no-passing
zone involved planning and policy, and so was protected under the
discretionary function immunity exception. But we rejected this
argument, holding that
functions of this nature do not involve broad
basic policy decisions which come within the
planning category of decisions which are
expressly entrusted to a coordinate branch of
government. . . . [R]esolution of questions
such as whether or not the state properly
striped or marked a portion of highway as it
relates to the states duty of care to users
of the highway presents facts that courts are
equipped to evaluate within traditional
judicial fact-finding and decision-making
processes.[92]
We later reached the same conclusion in Johnson v.
State,93 a case concerning the states failure to post an adequate
warning sign. There, a bicyclist was injured in an accident
caused by railroad tracks crossing the road at an unmarked spur.
The state did not deny its duty to provide and maintain signs
warning of foreseeable hazards. It nevertheless argued that,
because the railroad spur had been included in the plans for the
road before the road was initially built, the decision not to
post a warning sign was an original design decision and, as such,
was immune.94 We rejected this argument. Relying on IAnson, we
categorically ruled in Johnson that the decision to sign is
operational and hence not immune.95
And more recently, in Guerrero I, we observed that our
cases have placed certain kinds of government actions on the
operational side of the operational/planning balance: highway
maintenance, painting lane markings on highways, [and] posting
highway signage[.]96
The department nevertheless insists that our most
recent case law retreats from these precedents and favors a more
modern view that would grant immunity to signing decisions. In
support of this argument, the department relies chiefly on Walden
v. Department of Transportation.97 But as we already observed in
discussing the departments duty argument, the department misreads
Walden.98 There, Walden claimed that the departments duty of due
care required the department to post a specific warning sign at
the accident site; to support this claim, Walden relied
completely on the allegation that the Traffic Manual recommended
posting a sign at that location; but as it turned out, the Manual
did not recommend installing the sign.99 Our decision in Walden
simply recognized that under these facts, the departments general
duty of due care did not create an actionable duty to install
that particular warning sign.
The department cites Searles v. Agency of
Transportation100 as additional authority for its argument that
signing decisions should be treated as immune. There, the
Vermont Supreme Court rejected as barred by immunity a negligent-
marking claim alleging that the state had failed to comply with
the Traffic Manuals recommendations for marking a no-passing
zone. In reaching its decision, the court in Searles described
the Traffic Manual as merely a guidebook for the installation of
signs and held that decisions concerning highway marking and
signs were immune because they involve[] an element of judgment
or choice.101
But in sharp contrast to Searless reliance on the mere
presence of an element of judgment or choice, our own immunity
rulings have consistently emphasized that not all acts that
involve discretion or judgment are immune, for almost any act,
even driving a nail, involves some discretion. 102 Furthermore, in
holding that failure to properly mark and sign highways amounts
to non-immune operational negligence, State v. IAnson relied
largely on Alaskas specific statutory provision directing the
department, as far as possible, [to] conform to the
recommendations of the [Traffic Manual].103 Finally, the conflict
between Searles and IAnson simply establishes a disagreement; the
mere fact that Vermont disagrees with Alaskas view of immunity
cannot by itself justify overturning our settled precedent.104
The department does not offer any convincing reason to
retreat from our holdings in cases like IAnson and Johnson.105 As
we recognized in those cases, installing appropriate warning
signs will generally entail straightforward decisions involving
implementation. Given Alaskas statutory directive to follow the
Traffic Manuals recommendations when reasonably possible,106 there
is little reason to think that immunity is needed to protect the
department from unforeseeable liability. Furthermore, as the
Guerreros correctly maintain, installing signs is relatively
inexpensive and does not implicate the same resource-allocation
concerns raised by the high costs of installing traffic signals,
lighted crosswalks, and pedestrian overpasses. Finally, warning
signs are less likely than signals and crosswalks to pose serious
risks of conflicting with previously established policy choices.
We thus find no sound basis for elevating these kinds of
decisions to the level of basic policy and planning decisions.
3. Alternative Summary Judgment Theories
Two alternative summary judgment grounds remain for us
to consider: negligence and causation. The Guerreros claim that
the department acted negligently in failing to provide two
different kinds of warning signs: signs warning pedestrians
against crossing C Street at 22nd Avenue and signs warning
approaching motorists on C Street that pedestrians might be
crossing the roadway at 22nd Avenue. They assert that this
negligence caused Alexanders injuries. As the moving party, the
department had the entire burden of proving its right to summary
judgment; unless the department advanced prima facie evidence of
non-negligence or lack of causation, the Guerreros had no duty to
submit evidence supporting their allegations on these points.107
On appeal, the department has not expressly argued that
it established a prima facie case of non-negligence or lack of
causation. But it indirectly raises these issues. A claim of
non-negligence seems implicit in its argument that it had no duty
to post signs at the accident site; and the department presented
evidence on this point with its motion for summary judgment:
state traffic safety expert Ron Martindale submitted an affidavit
suggesting that there was no need for warning signs at the
intersection. The department similarly raises an implied claim
of lack of causation; it argues that the Guerreros warning-sign
claims are not factually related to Alexander Guerreros accident,
specifically contending that a No Pedestrian Crossing sign would
have been useless because Alexander did not know how to read and
that an advance School Crossing sign would have been futile
because Alexander was not a student and the accident occurred
outside the usual hours of school.
For purposes of considering these points, we assume
that the department made a prima facie showing of non-negligence
and lack of causation; our inquiry thus centers on determining
whether the Guerreros presented any rebuttal evidence raising
genuine issues of material fact on negligence and causation.
a. Negligence
The Guerreros rely partly on the Traffic Manual as
evidence supporting their claim that the department acted
negligently in failing to post warning signs. The Manual
establishes three levels of recommendation for warning signs:
shall, should, and may. It defines them as follows:
1. SHALL a mandatory condition. Where
certain requirements in the design or
application of the device are described with
the shall stipulation, it is mandatory when
an installation is made that these
requirements be met.
2. SHOULD an advisory condition. Where
the word should is used, it is considered to
be advisable usage, recommended but not
mandatory.
3. MAY a permissive condition. No
requirement for design or application is
intended.[108]
Although the Manual emphasizes that these
recommendations are not legal requirements,109 they nonetheless
provide useful and authoritative guidance concerning the level of
care that would generally be necessary to meet the departments
operational duty to post adequate traffic signs. In a case where
the Traffic Manual merely suggests that a sign may be posted, it
simply describes a permissive condition.110 This designation
recognizes that installing a sign is generally an acceptable
option under the specified conditions, but it gives no specific
advice as to what choice the department should actually make. A
may recommendation thus creates no inference that failing to
install a sign amounts to negligence in any particular case.
By contrast, the Manual does affirmatively give advice
when it says that a sign should be installed, specifically
declaring that, under the stated conditions, installing a sign is
considered to be advisable usage.111 This amounts to a qualified
recommendation: it advises that due care would generally call for
installing a sign, but also recognizes considerable leeway for
individual exceptions.112
The Manuals advice grows even stronger when it says
that a sign shall be installed: by defining shall as a mandatory
condition, the Manual unequivocally advises that when the
specified conditions are met, due care requires installing a sign
in all but extraordinary cases.113
As applied to the two types of warning signs at issue
here No Pedestrian Crossing signs and Advance Crossing signs
(that is, signs giving motorists advance warning that pedestrians
may be crossing the roadway), the Traffic Manual produces
different recommendations. As to no-crossing signs, the Manual
takes the neutral position that posting may be appropriate:
Pedestrian Crossing signs may be used
selectively to aid in limiting pedestrian
crossing to safe places. . . . The No
Pedestrian Crossing sign may be used to
prohibit pedestrians from crossing a roadway
at a point which is considered to be
hazardous, especially in front of a school or
other public building where a crossing is not
designated.[114]
As noted above, because this recommendation is merely permissive
it does not imply the existence of negligence or non-negligence
in any particular case.
As to Advance Crossing signs, the Manual takes a
stronger position, recommending that Advance Crossing signs
should be used to alert vehicle operators to unexpected entries
into the roadway by pedestrians, trucks, bicyclists, animals, and
other potential conflicts.115 Because should affirmatively advises
installing a sign in specified situations, this recommendation
alone, if shown to apply to the disputed intersection, would
raise a triable question of fact on the issue of negligence.116
Here, the required showing was made. The Guerreros
submitted an affidavit signed by their own traffic expert, Edward
M. Stevens, who concluded that crossing C Street at 22nd Avenue
on foot in times of heavy traffic would be inherently unsafe,
especially for young children. According to Stevens, [w]arning
signs, such as an advance pedestrian crossing sign, a pedestrian
crossing sign, or a no pedestrian crossing sign, were appropriate
with the intersection of 22nd avenue and C street. Stevens based
his opinion on gap and traffic-volume studies of the specific
intersection. These studies reveal that: (1) [t]he location
nearly meets gap warrant criteria for a grade-separated
pedestrian over-crossing; and (2) [t]here were several 15 minute
periods when no acceptable [time delays sufficient for a
pedestrian to cross] were recorded. Stevenss expert opinion
could support a reasonable inference that conditions at the
intersection triggered the Manuals recommendation that advance
warning signs should be installed. Therefore, Stevenss
affidavit, coupled with the Manuals recommendation, raises a
triable issue of fact as to the departments negligence in failing
to install an advance-warning sign.
To be sure, as already mentioned, the department
offered opposing evidence from its own traffic safety expert,
Martindale, who emphasized that unnecessary use of warning signs
can be counterproductive because it breeds disrespect for all
signs.117 Yet the general proposition that signs should not be
overused fails to address the specific conditions at the
intersection of 22nd Avenue and C Street. The Guerreros
presented evidence showing that a heavily used footpath led from
the Loussac Manor housing complex to C Street and 22nd Avenue and
that this intersection, in turn, provided the most direct route
to a nearby elementary school on the far side of C Street.
Viewed in the light most favorable to the Guerreros, this
evidence would tend to refute Martindales implied assertion that
the intersection at C Street and 22nd Avenue was no more
dangerous than other unmarked intersections along the A/C
couplet, so a genuine dispute of material fact exists as to the
need for an advance-warning sign.
The Guerreros evidence similarly raises a genuine issue
of fact concerning potential negligence in failing to install a
No Pedestrian Crossing sign. Stevenss affidavit could support a
finding that the department violated its duty of due care in
failing to install a No Pedestrian Crossing sign; this evidence
thus independently tends to show negligent conduct, despite the
Manuals neutral may recommendation as to the general advisability
of posting No Pedestrian Crossing signs.
The conflicting evidence in the record concerning these
points thus precludes the department from claiming that it was
entitled to summary judgment because of unrebutted evidence
showing that it acted non-negligently in failing to post warning
signs.
b. Causation
The record similarly contains conflicting evidence
precluding the department from prevailing on the alternative
theory that its failure to post warning signs could not have
caused Alexanders injury. As already mentioned, the department
reasons that a sign prohibiting pedestrians from crossing C
Street would have been futile because Alexander was too young to
know how to read, and that a sign warning motorists that the
intersection was a school crossing would have been useless
because Alexander was not a student and the accident occurred
outside the usual hours of school.
These arguments mistakenly assume that the Guerreros
limited their claim to the departments failure to post signs
warning motorists to beware of students crossing C Street or
signs warning in writing that pedestrians should not cross the
street. The Guerreros negligent signing claim and their
supporting evidence asserted broader positions. Because the
criteria specified in the Traffic Manual for Advance Crossing
signs broadly include all potential conflicts between pedestrians
and motorists118 not just conflicts between student pedestrians
and motorists we see no basis for assuming that the department
would only have needed to post advance-warning signs that alerted
motorists to the danger of students crossing C Street during
normal school hours. Neither the Guerreros negligent warning
sign claim nor their experts affidavit was confined to this
narrow theory.
Furthermore, insofar as the Guerreros asserted that the
department was negligent in failing to install No Pedestrian
Crossing signs, we find little reason to assume that Alexanders
inability to read would necessarily rule out causation. The
sample No Pedestrian Crossing sign set out in the Traffic Manual
consists of a non-textual warning: it uses no words and simply
depicts the figure of a pedestrian in the middle of a red circle
with a diagonal slash drawn through the figure.119 The Manual
expressly points out that either this pictorial warning or a word
message sign may be used when a No Pedestrian Crossing sign is
installed.120 Neither Alexanders illiteracy nor his parents prior
warnings would necessarily preclude a finding that he might have
understood and heeded a simple, clear, and immediate picture
warning like the one in the Manual. Since the state failed to
produce any evidence establishing that a pictorial sign could not
have been posted or that Alexander could not have understood and
heeded such a sign, we conclude that the record fails to reveal
undisputed evidence demonstrating that it was entitled to summary
judgment based on lack of causation.
IV. CONCLUSION
Because the record establishes that the corporation
owed no duty to protect the Guerreros from the dangers of traffic
on the A/C couplet, we AFFIRM the order granting the corporations
motion for summary judgment. But because genuine issues of
material fact exist as to the Guerreros claim that the department
negligently breached an operational duty to post no-crossing
signs and advance-warning signs on C Street, we hold that it was
error to grant the departments motion for summary judgment on the
negligent signing claim, REVERSE the order summarily dismissing
that claim, and REMAND for further proceedings on the claim. We
AFFIRM the summary dismissal of all other aspects of the
Guerreros claims against the department, concluding that those
claims are barred by discretionary function immunity.
_______________________________
1 See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,
264 (Alaska 2000).
2 Guerrero is now quadriplegic.
3 Guerrero I, 6 P.3d at 252-53.
4 Id. at 255.
5 Id. at 257 (quoting Arctic Tug & Barge, Inc. v.
Raleigh, Schwartz & Powell, 956 P.2d 1199, 1203 (Alaska 1998)).
6 Id. at 256-57.
7 Id. at 257.
8 Id. at 257-58.
9 Id. at 261-62.
10 Id. at 260.
11 Id.
12 Id. at 263-64.
13 Pub. Safety Employees Assn, Local 92 v. State, 895 P.2d
980, 984 (Alaska 1995) (quoting Dayhoff v. Temsco Helicopters,
Inc., 848 P.2d 1367, 1369 (Alaska 1993)).
14 Charles v. Interior Regl Hous. Auth., 55 P.3d 57, 59
(Alaska 2002).
15 Snook v. Bowers, 12 P.3d 771, 776 (Alaska 2000).
16 Charles, 55 P.3d at 59 (quoting Broderick v. Kings Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).
17 Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434,
437 (Alaska 1995) (citing Deal v. Kearney, 851 P.2d 1353, 1361
(Alaska 1993)).
18 Guerrero I, 6 P.3d at 256.
19 Id.
20 780 P.2d 1055 (Ariz. App. 1989).
21 Id. at 1058.
22 Id. at 1057.
23 Id.
24 Id.
25 Id. at 1059.
26 Id. at 1061.
27 Id. at 1060.
28 Id. at 1059.
29 71 Cal. App. 4th 1473 (Cal. App. 1999).
30 Id. at 1476.
31 Id.
32 Id. at 1478.
33 Id.
34 Id. at 1479 (citing Brooks v. Eugene Burger Mgmt.
Corp., 215 Cal. App. 3d 1611, 1624 (Cal. App. 1989)).
35 Id.
36 Id.
37 Id.
38 Id. at 1480.
39 See Greenslade v. Mohawk Park, 798 N.E.2d 336 (Mass.
App. 2003) (holding that the owner of a campground had no duty to
warn guests of the dangers of a rope swing located on adjacent
property because the dangers presented by swinging from the rope
and dropping into a river below were open and obvious); Berman v.
LaRose, 167 N.W.2d 471, 472 (Mich. App. 1969) ([T]here is no
duty, absent a statute, of an abutting owner as to the condition
of the sidewalk or public way, unless the landowner has
physically intruded upon the area in some manner or has done some
act which either increased the existent hazard or created a new
hazard.); Limberhand v. Big Ditch Co., 706 P.2d 491, 499 (Mont.
1985) (holding that [i]f the instrumentality causing harm is
located adjacent to the landowners property, and the
instrumentality poses a clear and foreseeable danger to persons
properly using the landowners premises, we see no reason to
shield the landowner from liability as a matter of law. A duty
to take some reasonable precautions may exist.).
40 Guerrero I, 6 P.3d at 264.
41 Id. at 253.
42 Reed v. Municipality of Anchorage, 741 P.2d 1181, 1184
(Alaska 1987).
43 27 P.3d 297 (Alaska 2001).
44 Guerrero I, 6 P.3d at 257.
45 956 P.2d 1199 (Alaska 1998).
46 Id. at 1203.
47 Id.
48 Id.
49 Id.
50 Walden, 27 P.3d at 300.
51 Guerrero I, 6 P.3d at 255.
52 See Arctic Tug, 956 P.2d at 1203 (describing questions
concerning scope of specific duty as essentially questions of
whether particular conduct did or did not breach [that duty]
(i.e., constitute negligence)).
53 AS 09.50.250 provides in relevant part:
A person or corporation having a contract,
quasi-contract, or tort claim against the
state may bring an action against the state.
. . . However, an action may not be brought
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.
54 Id.
55 State v. Abbott, 498 P.2d 712, 720 (Alaska 1972).
56 Johnson v. State, 636 P.2d 47, 64 (Alaska 1981).
57 Id.
58 Adams v. State, 555 P.2d 235, 244 (Alaska 1976) ([T]he
basic policy decision to undertake an activity is immune, but the
execution is not.); see also Japan Air Lines Co. v. State, 628
P.2d 934, 938 (Alaska 1981) (holding that the decision to build a
runway for wide body jets was a policy decision but that once the
decision 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); Carlson v. State, 598 P.2d 969, 973
(Alaska 1979) (holding that the decision to maintain highway
turnouts was discretionary, but once made the State is under a
duty to act with reasonable care); Abbott, 498 P.2d at 722 (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.).
59 Adams, 555 P.2d at 244.
60 Estate of Arrowwood v. State, 894 P.2d 642, 645 (Alaska
1995) (quoting Japan Air Lines Co., 628 P.2d at 936).
61 Industrial Indem. Co. v. State, 669 P.2d 561, 563
(Alaska 1983).
62 Id.
63 Id.
64 Abbott, 498 P.2d at 721-22.
65 Industrial Indem., 669 P.2d at 563.
66 Adams v. City of Tenakee Springs, 963 P.2d 1047, 1051
(Alaska 1998); see also Estate of Arrowwood, 894 P.2d at 646 (It
is well established that both legislative appropriations and
executive department budget decisions are discretionary functions
immune from judicial inquiry.); Industrial Indem., 669 P.2d at
564-65 (Decisions regarding the allocation of scarce resources
are usually discretionary, and thus immune from judicial
inquiry.).
67 Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 218-
19 (Alaska 2003).
68 Id. at 216, 219 (finding the decision of a state
trooper not to commence a search-and-rescue operation to be
discretionary since the regulations were permissive and before
troopers decide whether to launch a search or a rescue, they must
evaluate weather and safety conditions, determine if suitable
resources are available, and generally weigh the risks against
the benefits of a particular endeavor); State, Dept of Transp. &
Pub. Facilities v. Sanders, 944 P.2d 453, 457-58 (Alaska 1997)
(holding that where Department of Transportation regulations did
not require department officials to enforce vehicle regulations,
the departments decision not to do so was discretionary).
69 Abbott, 498 P.2d at 721.
70 Sanders, 944 P.2d at 457 (quoting Johnson, 636 P.2d at
64).
71 Abbott, 498 P.2d at 724.
72 Id. at 726.
73 Japan Air Lines Co., 628 P.2d at 938.
74 Id.
75 Kiokun, 74 P.3d at 218.
76 Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982).
77 Jennings v. State, 566 P.2d 1304, 1311 (Alaska 1977).
78 Industrial Indem., 669 P.2d at 564-65.
79 Jennings, 566 P.2d at 1312.
80 Id. at 1311 n.28.
81 Id. at 1312 n.30.
82 Japan Air Lines Co., 628 P.2d at 938.
83 Id. at 937 n.2 (distinguishing the holding in Jennings
by pointing out the cautionary discussion in that opinions
footnote 30).
84 Specifically, traffic control signals are addressed in
AS 19.10.050, while highway signs are covered by AS 19.10.040.
85 See U.S. Dept. of Transportation, Federal Highway
Administration, Manual on Uniform Traffic Control Devices (1988)
[Traffic Manual].
86 AS 19.10.040 provides in relevant part that the
department
shall classify, designate, and mark highways
under its jurisdiction and shall provide a
uniform system of marking and posting these
highways. The system of marking and posting
must correlate with and, as far as possible,
conform to the recommendations of the Manual
on Traffic Control Devices as adopted by the
American Association of State Highway
Officials.
AS 19.10.050 provides in relevant part that the
department
shall prescribe types of traffic control
signals to regulate traffic on highways.
These signals must correlate with and, as far
as possible, conform to the recommendations
of the Manual on Uniform Traffic Control
Devices as adopted by the American
Association of State Highway Officials. The
department shall adopt uniform regulations
for the placing and installation of traffic
control signals.
87 The Traffic Manual requires a minimum of 100
pedestrians per hour for each of any four hours to justify
installing a signal. Traffic Manual, supra note 85, at 4C-4.
Where pedestrians are slower than average, as small children
might be, the requirement may be reduced by fifty percent. Id.
at 4C-5. The report of the Guerreros expert indicates that the
highest number of pedestrians crossing C Street during the peak
traffic hour was 27 and that the average was lower.
88 Traffic Manual, supra note 85, at 4C-2 (Traffic control
signals should not be installed unless one or more of the signal
warrants in this Manual are met.).
89 Wainscott, 642 P.2d at 1357; cf. Industrial Indem., 669
P.2d at 569 (Matthews, J., dissenting) (discussing rationale of
Wainscott).
90 Traffic Manual, supra note 85, at 3B-23.
91 529 P.2d 188 (Alaska 1974).
92 Id. at 193-94.
93 636 P.2d 47 (Alaska 1981).
94 Id. at 66.
95 Id.
96 Guerrero I, 6 P.3d at 261.
97 27 P.3d 297 (Alaska 2001).
98 See discussion above, pp. 15-17.
99 Walden, 27 P.2d at 302.
100 762 A.2d 812 (Vt. 2000).
101 Id. at 815.
102 Abbott, 498 P.2d at 720.
103 AS 19.10.040.
104 As we recently reaffirmed in Thomas v. Anchorage Equal
Rights Commission, 102 P.3d 937, 943 (Alaska 2004), we do not
lightly overrule our precedent:
[W]e have consistently held that a party
raising a claim controlled by an existing
decision bears a heavy threshold burden of
showing compelling reasons for reconsidering
the prior ruling: We will overrule a prior
decision only when clearly convinced that the
rule was originally erroneous or is no longer
sound because of changed conditions, and that
more good than harm would result from a
departure from precedent.
Id. (quoting State, Commercial Fisheries Entry Commn v. Carlson,
65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)).
105 Johnson, 636 P.2d at 66 ([T]he decision to sign is
operational and hence not immune.); State v. IAnson, 529 P.2d 188
(Alaska 1974).
106 AS 19.10.040.
107 Barry v. University of Alaska, 85 P.3d 1022, 1025-26
(Alaska 2004) (quoting Braund, Inc. v. White, 486 P.2d 50, 54 n.5
(Alaska 1971)).
108 Traffic Manual, supra note 85, at 1A-4.
109 Id.
110 Id.
111 Id.
112 We reject the departments argument that no genuine
dispute concerning operational negligence can be based on the
Traffic Manuals provisions unless the Manual leaves no room for
discretion by unequivocally requiring that a sign be installed.
The argument disregards AS 19.10.040s explicit directive to
conform to the Traffic Manuals recommendations; and it directly
conflicts with our holding in Johnson v. State, which recognized
that a viable claim for negligent failure to post a warning sign
could exist even though the warning sign at issue there was non-
standard, that is, not provided for in the then current Alaska
Traffic Manual[.] Johnson, 636 P.2d at 66 n.40. Johnsons ruling
on this point establishes that, although the Traffic Manuals
recommendations can provide useful guidance in determining
whether the department complied with or violated its duty to
exercise due care in signing and marking highways, the
recommendations will not control that issue if independent
evidence supports a finding that the department acted negligently
despite the absence of an affirmative recommendation by the
Manual.
113 Traffic Manual, supra note 85, at 1A-4.
114 Traffic Manual, supra note 85, at 2B-29.
115 Id. at 2C-16 (emphasis added).
116 The inference of negligence seems especially apt given
AS 19.10.040s provision requiring the department to comply as far
as possible with the Manuals advice.
117 We note that in the superior court, the departments
motion for summary judgment argued that Martindales affidavit
established a lack of any actionable duty, not the absence of
negligence:
Alexanders parents had warned him of the
dangers of C Street. This five year old
child could not read, and thus any warning
sign would presumably be even less effective
than his parents instructions. . . . [T]he
State has no duty to warn citizens . . . of
the obvious dangers of running into traffic
on a busy street. Such warnings would have
to be everywhere, and yet they would still
fail to reach illiterate five year olds.
(Citations omitted.) This focus on duty seems misguided, since
the fact that some youthful pedestrians might not be able to read
a no-crossing sign or might disregard parental warnings would not
relieve the state of its duty to protect the many other
pedestrians who presumably would understand and be willing to
heed such a sign.
118 Traffic Manual, supra note 85, at 2C-16
119 Id. at 2B-30.
120 Id. at 2B-29.
