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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinegak v. State, Dept. of Corrections (02/17/2006) sp-5988
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
| LLOYD KINEGAK, | ) |
| ) Supreme Court No. S- 11315 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4BE-03-148 CI |
| ) | |
| STATE OF ALASKA, DEPARTMENT | ) O P I N I O N |
| OF CORRECTIONS, | ) |
| ) | |
| Appellee. | ) [No. 5988 - February 17, 2006] |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Jim J. Valcarce, Christopher R.
Cooke, Cooke, Roosa & Valcarce, Bethel, for
Appellant. Dale W. House, Assistant Attorney
General, Anchorage, James L. Baldwin,
Assistant Attorney General, Juneau, Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
FABE, Justice, with whom CARPENETI, Justice, joins,
dissenting.
I. INTRODUCTION
Because of an oversight the Department of Corrections
did not realize that Lloyd Kinegaks prison sentences were to run
concurrently, and imprisoned him for seven days after his
sentences ended. After being released, Kinegak sued DOC for
damages. DOC claimed sovereign immunity under AS 09.50.250(3),
which immunizes the state against claims arising out of false
imprisonment. Kinegak argued that DOC was not immune because it
breached a duty to calculate his sentence with due care, a duty
he said existed independently of the false imprisonment tort.
Converting DOCs motion to dismiss into a motion for summary
judgment, the superior court rejected Kinegaks argument as
semantics and entered judgment for DOC. We affirm.
II. FACTS AND PROCEEDINGS
The facts are mostly undisputed. Kinegak pled no
contest to misdemeanor charges and was sentenced to two
concurrent sentences of sixty days, with twenty days off for good
behavior and additional credit for time served. With the
credits, Kinegak should have been released on July 3, 2002. But
Kinegak was not released on that day. On July 9 Kinegak sent a
letter to his probation officer pointing out the error, and he
was released the next day. He served a total of seven extra
days.
Ten months later, Kinegak filed a civil suit against
DOC. The complaint alleged that staff members employed by the
State of Alaska, Department of Correction[s], at the Yukon
Kuskokwim Correctional Center negligently failed to correctly
compute plaintiffs release date[,] resulting in the negligent and
unjustified continued incarceration of Lloyd Kinegak for seven
days. This complaint further alleged greater than $50,000 in
economic and non-economic injuries based on Kinegaks loss of
liberty. According to the complaint, this injury was
caused by the negligence of the defendant,
including . . . failing to correctly compute
Lloyd Kinegaks minimum release date[;]
failure to maintain accurate records; failing
to maintain time accountings; . . . failing
to provide proper oversight and supervision
of staff[;] and failing to use due care and
caution in the incarceration of inmates.
DOC answered and admitted most of the allegations.
According to the amended answer, due to irregularities in the
judgment DOC employees overlooked that plaintiffs sentences were
to run concurrently, and as a result plaintiff was not released
on his proper release date. The answer also pleaded affirmative
defenses based on AS 09.50.250, the sovereign immunity statute.
DOC then moved to dismiss under Alaska Civil Rule
12(b)(6). Kinegak opposed the motion and cross-moved for partial
summary judgment as to liability and for a finding of no
immunity. The superior court treated DOCs motion as a motion for
summary judgment, granted the motion, and entered judgment for
DOC. Specifically, the superior court held that while DOC owed
Kinegak a duty of care, DOC had sovereign immunity under AS
09.50.250. Kinegak had argued that his claim had an independent
basis in negligence, and that therefore it did not arise from the
intentional tort of false imprisonment within the meaning of the
statute. Superior Court Judge Dale O. Curda rejected this,
holding that
[i]t is semantics to argue that one suffers
from clerical negligence when that negligent
act occurs in the true injurys causal chain.
Kinegaks damages do not spring from DOCs lack
of quality clerks, it springs from his
physical incarceration at YKCC on dates that
he was not legally allowed to be in custody.
His claim, therefore, is one for false
imprisonment.
III. DISCUSSION
Because this is an appeal of a grant of summary
judgment, our review is de novo.1 We usually consider whether
there is a tort duty before deciding sovereign immunity
questions, but this is not always our practice.2 In this case
resolving the duty issue is unnecessary because we conclude that
DOC is immune under AS 09.50.250(3).
Alaska Statute 09.50.250 waives the states immunity
against certain lawsuits but contains an explicit exception for
suits arising out of false imprisonment: an action may not be
brought if the claim . . . (3) arises out of assault, battery,
false imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights[.] The parties appear to agree
that as an agent of the state, DOC is entitled to whatever
immunities the state has.3 The question presented is whether
Kinegaks negligence claim arises out of . . . false imprisonment
within the meaning of AS 09.50.250(3). In answering this
question, we will construe the states immunity narrowly, because
liability is the rule, immunity the exception in claims against
the state.4
Kinegaks main argument is that his complaint should be
reinstated under Zerbe v. State.5 Zerbes criminal case had been
dismissed, but state employees allegedly failed to inform the
judge of the dismissal, and the judge issued a bench warrant for
Zerbes arrest.6 After Zerbe was arrested and jailed for nine
hours without being allowed to make phone calls, he filed a
complaint against the state that was couched in terms of
negligence.7 The state claimed it was immune, arguing that
Zerbes claims arose out of false imprisonment and false arrest
within the meaning of AS 09.50.250(3). The court rejected this
argument and reinstated Zerbes complaint. Citing federal
authorities construing analogous language in the Federal Tort
Claims Act, the court held that it was negligent record keeping,
rather than false imprisonment, which caused Zerbes injuries.8
The decision concluded with a broad statement about the states
liability for false arrests or false imprisonments caused by
bureaucratic carelessness:
Today, when various branches of
government collect and keep copious records
concerning numerous aspects of the lives of
ordinary citizens, we are unwilling to deny
recourse to those hapless people whose lives
are disrupted because of careless record
keeping or poorly programmed computers. We
see no justification for immunizing the
government from the damaging consequences of
its clerical employees failure to exercise
due care.[9]
Relying on this passage, Kinegak argues that his
imprisonment was also caused by negligent or careless record
keeping, and that his claim should therefore be reinstated just
as Zerbes was. DOC appears to concede that the complaint should
be reinstated if Zerbe is good law, but argues that Zerbe has
either been overruled by Stephens v. State, Department of
Revenue,10 and Waskey v. Municipality of Anchorage,11 or that it
ought to be overruled now in light of post-Zerbe decisions by the
United States Supreme Court.
Although we do not agree with DOC that Waskey and
Stephens have overruled Zerbe,12 we do agree that we should
overrule Zerbe now based on the federal case law. A prior
decision should be overruled only if the court is clearly
convinced that the precedent is erroneous or no longer sound
because of changed conditions, and that more good than harm would
result from overturning the case.13 We believe this standard is
met here, based primarily on changes in the federal cases in the
years since Zerbe was decided.
The Federal Tort Claims Act has language that is nearly
identical to the language in AS 09.50.250(3), and federal
decisions construing the FTCA are persuasive authority in
construing the Alaska statute.14 When Zerbe was decided, it
relied on a federal court of appeals decision, Quinones v. United
States, construing the federal governments immunity for claims
arising out of libel and slander.15 Quinones was a former federal
employee who alleged that he was injured when the government
provided false information about Quinones to a potential
employer.16 Quinones sued the government for negligent record
keeping, a tort in Pennsylvania, and the Third Circuit said the
federal governments libel/slander immunity did not cover the
claim because the elements required to make out a negligent
record-keeping claim were different from the elements for libel
or slander.17 Zerbe said it would adopt the reasoning of the
Third Circuit in the Quinones case, and hold that it was
negligent record keeping, rather than false imprisonment, which
caused Zerbes injuries.18 On this basis, the court in Zerbe
rejected the states immunity defense.
Since Zerbe and Quinones, federal law has changed
considerably. The most recent relevant decision by the United
States Supreme Court is Sheridan v. United States.19 In Sheridan
an obviously intoxicated off-duty serviceman fired a gun into a
car passing by him.20 The plaintiff claimed that the federal
government breached its good Samaritan duty to control the
serviceman, because several government employees saw him
wandering around with a loaded weapon and did not alert the
authorities.21 In response, the government sought to dismiss the
suit based on the immunity for claims arising out of assault or
battery. The Court rejected this argument, on the grounds that
(1) the FTCA as a whole (including the intentional torts
immunity) applied only if the injury was caused by acts committed
within the scope of government employment, and the off-duty
serviceman was acting outside that scope,22 and (2) the basis of
liability was the other government employees breach of their
independent good Samaritan duties.23 On the latter point, the
Court said that Congress, by immunizing the government from
assault and battery, could not have intended to make recovery for
good Samaritan breaches depend on whether the breach involved a
failure to protect the plaintiff from another person who happened
to be a federal employee, and who happened to act intentionally
instead of negligently.24
The majoritys rationale in Sheridan does not apply to
this case. Here the person responsible for the release of
Kinegak is the supervisor of the correctional center where he was
held. The supervisor thus is the person who committed the tort
of false imprisonment by failing to timely release Kinegak.25 In
committing this tort the supervisor was acting within the course
and scope of his or her state employment and thus was in a
different position from the off-duty serviceman in Sheridan. But
Justice Kennedy wrote a concurrence in Sheridan that addresses
cases in which the individual might be a government employee
acting within the scope of his or her employment.
Justice Kennedy accepted the majoritys argument that
injuries can arise from multiple causes, and that by immunizing
the government from intentional torts, Congress did not intend to
immunize the government from claims based on breaches of other
common-law duties (such as duties to protect others from
dangerous persons), even in cases where the immediate cause of
injury was a federal employee committing one of the torts for
which immunity was specifically retained in the FTCA (such as
assault or battery).26 But Justice Kennedy did not focus on
whether the tortfeasor was acting within the scope of his or her
employment, and he imposed one additional requirement on the
plaintiff that the majority had declined to address. He
concluded that the duty underlying the cause of action should be
a separate duty independent from the employment relation and
not, for example, a claim of negligent supervision of the
employee.27 Without this additional requirement, litigants could
avoid the substance of the exception because it is likely that
many, if not all, intentional torts of Government employees
plausibly could be ascribed to the negligence of the tortfeasors
supervisor. To allow such claims would frustrate the purposes of
the exception.28 In this way, Justice Kennedys concurrence
establishes two prerequisites to recovery: the plaintiff must
identify a government duty that is distinct from the intentional
tort, but that is also independent of the intentional actors
employment relationship with the government.29
Since Sheridan, Justice Kennedys concurrence has
carried the day in most federal courts. Most federal circuit
courts that have addressed the question have said that the
government is liable for harm caused by intentional torts,
provided the government breached some independent duty that has a
basis other than negligent supervision, training, or hiring of
government employees.30
These federal cases persuade us of two things. First,
Kinegaks claim that DOC negligently supervised the employees who
calculated his prison term (a claim not founded on anything in
Zerbe) is contrary to the weight of federal authority. We agree
with Justice Kennedy and the other federal judges who have
concluded that allowing negligent supervision claims to go
forward would be contrary to the legislatures intent in
immunizing the government from certain torts. Government almost
inevitably acts through employees supervised or hired by others,
which means that negligent supervision (or negligent hiring or
negligent training) could be alleged in most cases where a state
employee commits one of the torts listed in AS 09.50.250(3).
This would eliminate much conduct that fairly falls within the
scope of the statutory immunity, and so we are persuaded that the
superior court properly dismissed Kinegaks negligent supervision
claim.
Second, the current state of federal law helps clearly
convince[] us (within the meaning of the standard for overruling
precedents) that Zerbe was wrongly decided and ought to be
overruled.31 In Sheridan both the majority and Justice Kennedy
concluded that Congress, in immunizing the government from
assault claims, did not intend to immunize claims based on a
different duty,32 such as the good Samaritan duty to prevent
others from coming to harm even in cases where the immediate
cause of harm happened to be an assault by a federal employee.
Justice Kennedy referred to multiple causes for the same tort,
and the majority said it would seem perverse to exonerate the
Government because of the happenstance that [the serviceman] was
on a federal payroll.33
But here it is hardly happenstance that the Zerbe-based
tort pleaded by Kinegak also involved a false imprisonment. The
conduct involved in record keeping by DOC clerks is an integral
part of the states imprisonment function. The Zerbe theory of
liability under the facts and circumstances of this case is
dependent on the employment status of the person responsible for
the false imprisonment, given the prison superintendents
necessary reliance on accurate records and accurate record
interpretation. Moreover, the facts alleged by Kinegak
constitute false imprisonment, and would have constituted false
imprisonment when the FTCA and AS 09.50.250 were enacted. The
original version of the Restatement of Torts, the version
available when the FTCA and AS 09.50.250 were enacted, requires
the plaintiff to establish that the defendant knew that the
victim was imprisoned, without regard to whether the defendants
act was knowing, reckless, negligent, or ignorant.34 The
Restatement (Second), published only a few years after AS
09.50.250 was enacted, does not materially change the basic
elements of the tort,35 but it does add language explicitly
stating that failure to release a prisoner on time is false
imprisonment.36 In addition, numerous cases establish that
failure to release a prisoner was false imprisonment long before
the FTCA and AS 09.50.250 were enacted.37
And once it is established that DOCs negligent record
keeping amounts to a reasonably well-known predicate for false
imprisonment, Kinegaks claim fails. Kinegaks claim is quite
unlike the claim in Sheridan, where the wrong underlying the
claim that the government failed to control an armed,
intoxicated person was practically and morally different from
the wrong contemplated by the immunity for assault and battery.
(That the two wrongs were united in a particular case was the
result of the happenstance that the dangerous person was a
federal employee who ended up committing an enumerated tort.38)
Our understanding of AS 09.50.250(3) is supported by
the text of the statute, which applies to a claim that arises out
of . . . false imprisonment as opposed to a claim of false
imprisonment. By using this language, we believe that the
legislature that enacted AS 09.50.250(3) (and the Congress that
enacted the FTCA) meant to immunize the government from claims
arising out of the conduct constituting reasonably well-
recognized forms of false imprisonment. We also find support in
the only federal cases we know of concerning failures to release
an inmate on time. In these cases, claims of negligence were
rejected as essentially identical to a claim for false
imprisonment.39 Finally, common sense supports our reading:
retaining state immunity would be useless if plaintiffs could use
a different theory to attack conduct that would be traditionally
understood as false imprisonment and nothing more. Just as most
federal courts have characterized negligent supervision claims as
attempts to avoid the substance of the immunity provisions,40 we
think Kinegaks negligent record-keeping claim would avoid the
substance and frustrate the purposes of the false imprisonment
immunity.
The one clear thing about this list of
[intentional tort] exceptions is that the
plaintiffs characterization of his action as
one for negligence will not control and that
the courts will ignore this label and treat
the claim as one within the list of
exceptions if the pleaded facts seem to
warrant.[41]
This decision should not be read as an endorsement of
DOCs conduct, which the superior court described as abhorrent,
and which would be even more abhorrent in a case involving a more
significant miscalculation of a prisoners sentence. It should
also not be read as making the state immune in all cases where
its tortious acts could have been pleaded as one of the torts
enumerated in AS 09.50.250(3). There may be cases where the
states negligence constitutes a truly distinct wrong, even though
the victim was injured because of an act constituting an
enumerated tort.42 We hold only that the state has shown that
there is no wrong claimed in this case that is materially
distinct from false imprisonment, and that Kinegaks claim was
therefore properly dismissed.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
FABE, Justice, with whom CARPENETI, Justice, joins, dissenting.
I respectfully dissent because I do not believe that
the courts decision to overturn Zerbe v. State1 complies with our
rule of stare decisis. Under this well-settled rule, we must
adhere to our precedents unless clearly convinced (1) that a
decision was originally erroneous or is no longer sound, and (2)
that more good than harm would result from overruling it.2
Neither federal case law nor the legislative history of AS
09.50.250 indicates that Zerbe is no longer sound. Furthermore,
overruling this decision is likely to result in significantly
more harm than good, because doing so removes an incentive for
prison officials to avoid negligence in their most basic duties,
and invites precisely the type of negligence that led to Kinegaks
unjust imprisonment. Because I would adhere to our rule of stare
decisis, and hold that AS 09.50.250(3) does not immunize the
state from Kinegaks claim, I would reverse the judgment of the
superior court.
I. Federal Case Law
When we held in Zerbe that an action sounding in
negligent record keeping, rather than false imprisonment3 was not
barred by Alaskas sovereign immunity statute,4 we looked to
several federal cases interpreting 28 U.S.C. 2680(h).5 This
does not mean, however, that Zerbes soundness is contingent on
agreement with the majority of federal jurisdictions. Although
we acknowledged in Zerbe that the federal cases barring recovery
under 2680(h) are in the numerical majority, we explicitly
aligned ourselves with the better reasoned minority of cases.6
Thus, the appropriate inquiry is not whether Zerbe represents the
majority rule, but rather whether its view of sovereign immunity
still falls within the broad spectrum of federal interpretations
of the FTCA.
A. The independent duty doctrine
Since Zerbe was decided, federal courts have recognized
an independent duty exception to sovereign immunity. Under this
exception, a plaintiff may bring a claim of negligence against
the United States if the underlying duty does not derive from the
torts listed in 2680(h).7 The Supreme Court recognized this
exception in Sheridan v. United States, but it did not resolve
the question whether the FTCA bars negligence claims based on the
tortfeasors status as a government employee.8
Since Sheridan, the majority of federal jurisdictions
that have addressed this issue have declined to permit negligent
supervision claims against the government or have suggested that
such claims would be barred if they were brought.9 But the Ninth
Circuit, and a district court in the First Circuit, have
concluded that these claims are not barred.10 The D.C. Circuit,
like the United States Supreme Court, has so far refrained from
deciding whether the government can be held liable for negligent
hiring and supervision.11 Finally, the Third Circuit has taken
an intermediate position, venturing that even if the United
States cannot be held liable for [the tortfeasors] actions based
on its status as his employer, . . . it may be without sovereign
immunity for negligence by other [government] employees, who were
within the scope of their own employment, in not stopping the
injurious behavior.12
In sum, although FTCA case law has evolved
significantly since Zerbe was decided, and Zerbe continues to
represent the minority view, the conclusion that the FTCA does
not bar negligence claims based on the tortfeasors employment
relationship with the government has not been foreclosed.
Because some federal courts still maintain that such claims are
not barred, Zerbes position remains plausible in the context of
FTCA case law.
B. False imprisonment cases
Moreover, the vast majority of federal false
imprisonment cases involve claims that the plaintiff should never
have been arrested at all, rather than that the plaintiff should
have been released earlier. Wrongful arrest cases provide little
guidance to us in deciding this case because they involve very
different policy implications from failure-to-release cases. The
decision whether to arrest someone must often be taken on a
moments notice with incomplete information. For that reason,
permitting plaintiffs to sue the government for good-faith arrest
decisions that later prove to be incorrect could endanger public
safety by deterring the police from making proper arrests.
Requiring state officials to release inmates on time creates no
such danger: If the state officials are keeping accurate
records, the inmates release date is no surprise, and indeed
requires no decision at all from prison officials. The public
safety implications of releasing the prisoner have presumably
been taken into account by the sentencing court.
There appear to be no cases that analyze the false
imprisonment provision of 2680(h) in light of the independent
duty exception, and the two cases cited in footnote 39 of the
courts opinion provide little guidance on the subject. Both
cases involve claims similar to Kinegaks, and both courts
conclude that the claims are essentially . . . for false
imprisonment,13 but neither case discusses the independent duty
exception. Because these cases simply assume what they conclude
that a claim based on the failure to release an inmate on time is
necessarily a false imprisonment claim and because the vast
majority of federal jurisdictions have not addressed this issue,
it is likely that a claim analogous to Kinegaks would be allowed
to proceed in some federal jurisdictions.14 For this reason, the
two federal cases concerning failure to release an inmate on
time, like FTCA cases generally, have not left Zerbe a remnant of
abandoned doctrine.15
II. Legislative History
The legislative history of AS 09.50.250 is more
revealing for what has not happened than for what has. As of
October 2004 the legislature had amended the statute five times
without attempting to override Zerbe.16 It amended the statute
again in 200517 while the present case was pending, but again
made no attempt to override Zerbe. Thus, although it has
repeatedly modified the statute, the legislature has done nothing
to indicate that Zerbe was wrongly decided.
III. More Harm than Good Would Result from Overruling Zerbe.
Even if there had been a sea change in federal law,
this alone would not be sufficient to overrule Zerbe. The second
prong of this courts stare decisis rule forbids overruling a
prior case unless the court is clearly convinced . . . that more
good than harm would result from a departure from precedent.18
We have applied this standard repeatedly in a number of different
areas of law.19
The courts half-hearted attempt to address this prong
a single paragraph relegated to a footnote is both perfunctory
and tautological. To support its claim that overruling Zerbe
would do more good than harm, the court argues that the decision
is outmoded in light of Justice Kennedys rationale in Sheridan,
and that failing to overrule it would continue to cause outcomes
that are contrary to the legislative requirement that certain
categories of torts may not be maintained against the state.20
The claim that, unlike the majority of the United States Supreme
Court, we should adopt Justice Kennedys view of the independent
duty doctrine is no more than a restatement of the courts
argument that Zerbe is no longer sound in light of federal case
law. Similarly, the claim that Zerbe cause[s] outcomes that are
contrary to the legislative requirement that certain categories
of torts may not be maintained against the state,21 is nothing
more than a restatement of the courts conclusion that Zerbe was
wrongly decided.22 And this conclusion is also unsupported by
the states experience since 1978. Alaska courts have not been
faced with a deluge of claims based on prison officials failure
to release inmates on time,23 and they continue to reject claims
arising from the torts listed in AS 09.50.250(3).24
If liability for negligence prevented DOC from
fulfilling its function, as liability for false arrest might do
in the context of law enforcement, overruling Zerbe might be
beneficial. But when DOC is responsible for releasing a prisoner
on a predetermined date, its duties are almost synonymous with
avoiding negligence. Such a release, based on a decision made by
a sentencing court and kept on file by DOC, presents very little
room for discretion: either the prisoners sentence has ended or
it has not.25 For this reason, there is no set of choices
analogous to proper arrest decisions that could be chilled by
imposing liability on DOC for negligently miscalculating inmates
sentences.
Finally, overruling Zerbe could do significant harm,
because it would eliminate an incentive for DOC to fulfill its
duties in a non-negligent manner. As the courts opinion
concedes, DOCs conduct in the present case has been abhorrent,26
and if the miscalculation had been greater, it would be even more
abhorrent.27 But, by shielding DOC from liability for negligent
record keeping, the courts opinion invites more misconduct. The
most likely practical consequence of overruling Zerbe is
therefore an increase in negligence on the part of DOC and
future miscalculations may involve periods of unjust imprisonment
longer than seven days.
In sum, the courts decision to overrule Zerbe does not
comply with our rule of stare decisis. Changes in federal case
law have not rendered Zerbe a remnant of abandoned doctrine,28
the legislature has made no effort to override the case by
statute, and the main foreseeable consequence of abandoning this
precedent is an increase in negligent misconduct with regard to
DOCs most basic duties. I therefore respectfully dissent.
_______________________________
1 Matanuska Elec. Assn, Inc. v. Chugach Elec. Assn, Inc.,
99 P.3d 553, 558 (Alaska 2004).
2 Kiokun v. State, Dept of Pub. Safety, 74 P.3d 209, 213
(Alaska 2003).
3 See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,
258-59 (Alaska 2000).
4 Native Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d
41, 49 (Alaska 2004). See also 3 Richard J. Pierce, Jr.,
Administrative Law Treatise 19.4, at 1454 (4th ed. 2002) (urging
courts to narrow the scope of sovereign immunity for intentional
torts); United States v. Horn, 29 F.3d 754, 762 n.7 (1st Cir.
1994) ([T]he scholarly community has been overwhelmingly hostile
to the [immunity] doctrine.).
5 578 P.2d 597 (Alaska 1978).
6 Id. at 598.
7 Id.
8 Id. at 601.
9 Id. (footnote omitted).
10 746 P.2d 908 (Alaska 1987).
11 909 P.2d 342 (Alaska 1996).
12 Although Stephens and Waskey declared Zerbe overruled
to the extent that it was in conflict with those decisions, both
cases held only that the state does not have a common-law duty to
use due care in initiating civil or criminal proceedings.
Stephens, 746 P.2d at 912 n.5 (We believe that, in general, the
state does not owe its citizens a duty of care to proceed without
error when it brings legal action against them. To the extent
that this contradicts our decision in Zerbe . . . , that case is
overruled.); Waskey, 909 P.2d at 344 (finding above passage from
Stephens to be applicable to this case). Neither Waskey nor
Stephens construes the immunity statute at issue in Zerbe and in
this case, and neither case purports to speak to a situation
where a prisoner is held beyond his term of confinement. We
therefore think it fair to read neither Waskey nor Stephens as
overruling Zerbe, at least as Zerbe might apply here.
13 State v. Fremgen, 914 P.2d 1244, 1245-46 (Alaska 1996).
14 See P.G. v. State, Dept of Health & Human Servs., Div.
of Family & Youth Servs., 4 P.3d 326, 335 (Alaska 2000). The
exceptions to the FTCA are at 28 U.S.C. 2680. Subsection (h)
provides that the federal governments waiver of immunity shall
not apply to: [a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights[.]
15 Quinones v. United States, 492 F.2d 1269 (3d Cir.
1974); see also Zerbe, 578 P.2d at 600-01 (citing Quinones).
16 Quinones, 492 F.2d at 1272.
17 Id. at 1280-81.
18 Zerbe, 578 P.2d at 601.
19 487 U.S. 392 (1988).
20 Id. at 393.
21 Id. at 394.
22 Id. at 400-01 (relying on 28 U.S.C. 1346(b), which is
incorporated by reference in 28 U.S.C. 2680(h)). Although AS
09.50.250 is mostly identical to the FTCA, the scope of
employment language in subsection 1346(b) is absent from AS
09.50.250.
23 Id. at 401-02.
24 Id. at 402.
25 The defendant in a false imprisonment case must know
that the plaintiff is imprisoned but need not know that the
imprisonment is wrongful. See authorities discussed infra pages
14-15.
26 Id. at 406.
27 Id. The majority had said: Because [the servicemans]
employment status is irrelevant to the outcome, it is not
appropriate in this case to consider whether negligent hiring,
negligent supervision, or negligent training may ever provide the
basis for liability under the FTCA for a foreseeable assault or
battery by a Government employee. Id. at 403 n.8.
28 Id. at 407 (emphasis added).
29 Justice Kennedy stressed the latter by expressing it
several times in slightly different ways: [A] court must
ascertain whether the alleged negligence was . . . the breach of
some separate duty independent from the employment relation. Id.
at 406. On this theory [the good Samaritan duty], the Governments
negligence is independent of its employment relationship with
[the off-duty serviceman]. Id. at 407. This theory of liability
does not depend on the employment status of the intentional
tortfeasor. Id. at 407.
30 For example, in Bembenista v. United States, 866 F.2d
493 (D.C. Cir. 1989), the plaintiff was assaulted by a medical
technician while a patient in a government medical center, and
the court held that the government was not immune. This was
because the governments duty of protective care arose out of its
special relationship with [plaintiff]; the court went on to note
that [t]his theory of liability does not depend on the employment
status of the intentional tortfeasor. Id. at 498 (quoting
Sheridan, 487 U.S. at 407 (Kennedy, J., concurring)). Most
federal courts have specifically agreed with Justice Kennedy that
negligent hiring and supervision claims should be rejected. See
Guccione v. United States, 847 F.2d 1031, 1037 (2d Cir. 1988)
(duty must be independent of the governments supervision of its
employees), rehg denied, 878 F.2d 32 (2d Cir. 1989); Leleux v.
United States, 178 F.3d 750, 757 (5th Cir. 1999) (similar);
Billingsley v. United States, 251 F.3d 696, 698 (8th Cir. 2001)
(similar); Borawski v. Henderson, 265 F. Supp. 2d 475, 486
(D.N.J. 2003) (similar). Cf. Franklin v. United States, 992 F.2d
1492, 1499 n.6 (10th Cir. 1993) (doubtful whether negligent
supervision or training claim would fall outside the intentional
torts immunity, citing Guccione); LM ex. rel. KM v. United
States, 344 F.3d 695, 700 (7th Cir. 2003) (rejecting negligent
supervision and hiring claims, where district court in another
case had already determined that negligent supervision claim
against the government based on same actors conduct was barred by
intentional torts immunity) (citing Ryan v. United States, 156
F. Supp. 2d 900 (N.D. Ill. 2001)). The one federal court that
has embraced negligent supervision claims, notwithstanding
Justice Kennedys Sheridan concurrence, is the Ninth Circuit,
which has upheld claims of negligent supervision of intentional
actors and rejected Justice Kennedys position. See Bennett v.
United States, 803 F.2d 1502 (9th Cir. 1986); Senger v. United
States, 103 F.3d 1437 (9th Cir. 1996).
31 We also believe that the more good than harm element of
our test for overruling a prior decision is satisfied. Adopting
Justice Kennedys Sheridan rationale provides a method for
distinguishing between cases that plausibly arise out of
immunized torts. Some such cases should be given immunity, but
others should not. Justice Kennedys Sheridan rationale can be
employed to distinguish these two categories in a logical way
that is consistent with the language of the statute whereas Zerbe
contained no such method. If Zerbe were not overruled it would
continue to cause outcomes that are contrary to the legislative
requirement that certain categories of torts may not be
maintained against the state.
32 Sheridan, 487 U.S. at 406 (Kennedy, J., concurring).
33 Id.; id. at 402 (opinion of the Court).
34 Restatement of Torts 35 (1934).
35 Restatement (Second) of Torts 35 (1965); see also Zok
v. State, 903 P.2d 574, 577 n.4 (Alaska 1995) (following
definition of false imprisonment in Restatement (Second) of
Torts).
36 Id. 45; see also id. 45 cmt. a, illus. 1 (A is
confined in jail under a sentence for a term. At the end of the
term B, the jailor, is under a legal duty to release A, but
refuses to do so. B is subject to liability to A.).
37 See, e.g., Bath v. Metcalf, 14 N.E. 133, 136-37 (Mass.
1887) (Holmes, J.); Weigel v. McCloskey, 166 S.W. 944, 946 (Ark.
1914); Housman v. Byrne, 115 P.2d 673 (Wash. 1941).
38 Sheridan, 487 U.S. at 402.
39 Maurello v. United States, 111 F. Supp. 2d 475, 476
(D.N.J. 2000) (Maurellos claims . . . are essentially a claim for
false imprisonment); Puccini v. United States, 978 F. Supp. 760,
761 (N.D. Ill. 1997) (plaintiffs claim is essentially one for
false imprisonment).
40 Sheridan, 487 U.S. at 407 (Kennedy, J., concurring).
41 Prosser & Keeton on the Law of Torts 131, at 1039 (5th
ed. 1984) (footnote omitted).
42 Cf. Sheridan, supra (federal government was not immune
where government employee injured plaintiffs by shooting into
their car; notwithstanding its immunity for assault and battery,
government was liable for its breach of its independent good
Samaritan duty to disarm the employee); Lane v. United States,
225 F. Supp. 850, 852-53 (E.D. Va. 1964) (federal government was
not immune where government surgeon operated on wrong knee, even
though technical[ly] this was a battery).
1 578 P.2d 597 (Alaska 1978).
2 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).
In general, this court do[es] not lightly overrule [its] past
decisions. State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986); see
also Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 943
(Alaska 2004) (The stare decisis doctrine rests on a solid
bedrock of practicality: no judicial system could do societys
work if it eyed each issue afresh in every case that raised it. )
(quoting Pratt & Whitney Canada, Inc. v. United Techs., 852 P.2d
1173, 1175 (Alaska 1993)).
3 587 P.2d at 601.
4 Zerbe, 578 P.2d at 601 (Today, when various branches of
government collect and keep copious records concerning numerous
aspects of the lives of ordinary citizens, we are unwilling to
deny recourse to those hapless people whose lives are disrupted
because of careless record keeping or poorly programmed
computers. We see no justification for immunizing the government
from the damaging consequences of its clerical employees failure
to exercise due care.).
5 See id. at 598, 599 & n.4 (listing federal cases
supporting sovereign immunity); id. at 600-01 (discussing several
cases allowing actions for negligence against the federal
government). Like AS 09.50.250(3), 2680(h) immunizes the state
from [a]ny claim arising out of . . . false imprisonment.
6 578 P.2d at 599-600. In Zerbe, we discussed the better
reasoning of several federal cases. Id. at 600-01. See, e.g.,
Quinones v. United States, 492 F.2d 1269, 1276 (3d Cir. 1974)
(allowing an action for negligent failure to maintain records to
proceed where the resulting harm was defamation); Gibson v.
United States, 457 F.2d 1391, 1395 (3d Cir. 1972) (permitting an
action against the government for negligence in failing to
prevent a Job Corps trainee from assaulting a Job Corps
instructor); Rogers v. United States, 397 F.2d 12, 15 (4th Cir.
1968) (allowing an action for negligence where the government
released the teenage plaintiff from prison, but did not provide
transportation home, resulting in the plaintiff being trapped and
physically tortured by a third party).
7 See Sheridan v. United States, 487 U.S. 392, 402 (1988)
(holding that an action against the United States for injuries
that the plaintiff sustained when an off-duty serviceman fired
several shots into his automobile was not barred by 2680(h)
because the government had an independent duty to prevent a
foreseeably dangerous individual from wandering about
unattended).
8 Unlike Justice Kennedys concurrence, which advocates a
bright-line rule forbidding claims that the [g]overnment was
negligent in the supervision or selection of the employee and
that the intentional tort occurred as a result, id. at 406, the
Sheridan majority explicitly declines to reach the issue:
[b]ecause [the tortfeasors] employment status is irrelevant to
the outcome, it is not appropriate in this case to consider
whether negligent hiring, negligent supervision, or negligent
training may ever provide a basis for liability under the [FTCA]
for a foreseeable assault or battery by a [g]overnment employee.
Id. at 403 n.8. Although Justice Kennedys position was taken by
a plurality in an earlier case, it has never been adopted by a
majority of the Supreme Court. See United States v. Shearer, 473
U.S. 52, 54-58 (1985) (holding, by a plurality, that an action
based on negligent supervision of a serviceman who abducted and
murdered another serviceman was barred by the FTCA).
9 See LM ex rel. KM v. United States, 344 F.3d 695, 699
(7th Cir. 2003) (noting that the governments consent to suit
under the FTCA extends to cases claiming an injury that is in
part the result of an intentional tort, so long as the government
negligently allowed the independent tort to occur in a way that
is entirely independent of [the tortfeasors] employment status)
(citations and quotation marks omitted) (alteration in original);
Billingsley v. United States, 251 F.3d 696, 698 (8th Cir. 2001)
(concluding that [t]o find the government liable for negligent
hiring and supervision of an employee who commits a tort would
frustrate the purpose of 2680(h)); Leleux v. United States, 178
F.3d 750, 757 (5th Cir. 1999) (noting that Sheridan stands for
the principle that negligence claims related to a Government
employees 2680(h) intentional tort may proceed where the
negligence arises out of an independent, antecedent duty
unrelated to the employment relationship between the tortfeasor
and the United States); Franklin v. United States, 992 F.2d 1492,
1499 n.6 (10th Cir. 1993) (stating that it is doubtful whether a
claim ultimately derive[d] from the governments employment
relationship to the immediate tortfeasors would be permitted
under 2680(h)); Talbert v. United States, 932 F.2d 1064, 1066-67
(4th Cir. 1991) (holding that the plaintiffs negligent record
keeping claim was barred by the FTCA); Guccione v. United States,
847 F.2d 1031, 1037 (2d Cir. 1988) (noting that the independent
duty doctrine allows mixed claims of negligence and intentional
conduct in the relatively uncommon case in which the negligence
alleged was independent of the governments supervision of its
employees) (citation and quotation marks omitted); Verran v.
United States, 305 F. Supp. 2d 765, 775-76 (E.D. Mich. 2004)
(stating that negligent hiring and supervision claims involving
an employees intentional tort are barred by the FTCAs intentional
tort exclusion); Acosta v. United States, 207 F. Supp. 2d 1365,
1368-71 (S.D. Fla. 2001) (concluding that federal courts do not
have jurisdiction over negligent supervision, negligent hiring
[and] negligent retention claims against the United States).
10 See Senger v. United States, 103 F.3d 1437, 1442 (9th
Cir. 1996) (holding that 2680(h) does not immunize the
[g]overnment from liability for negligently hiring and
supervising an employee); Mulloy v. United States, 884 F. Supp.
622, 630 (D. Mass. 1995) (concluding that nothing in Sheridan
logically requires a rule barring all claims alleging negligent
hiring and negligent supervision by the government).
11 See Bembenista v. United States, 866 F.2d 493, 498
(D.C. Cir. 1989) (We need not reach the more troublesome question
whether the government would be liable for the mere negligent
retention and supervision of a medical technician known to be
psychologically disturbed.).
12 Matsko v. United States, 372 F.3d 556, 561 (3d Cir.
2004). Quinones has not been overruled by the Third Circuit, and
its emphasis on the differing elements of the negligence claim
and the tort of defamation could be viewed as an early version of
the independent duty doctrine. 492 F.2d at 1276.
13 Maurello v. United States, 111 F. Supp. 2d 475, 476
(D.N.J. 2000); Puccini v. United States, 978 F. Supp. 760, 761
(N.D. Ill. 1997).
14 Senger and Mulloy suggest that a claim like Kinegaks
could be brought in the Ninth Circuit and the District of
Massachusetts if the claim were based on the governments
negligence in supervising the employees responsible for keeping
records of inmates release dates. See Senger, 103 F.3d at 1442;
Mulloy, 884 F. Supp. at 630.
15 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996).
16 Ch. 30, 1, SLA 2003; ch. 32, 9, SLA 1997; ch. 119,
1, SLA 1992; ch. 57, 1, SLA 1989; ch. 106, 5, SLA 1986.
17 Ch. 54, 2, SLA 2005. The 2005 amendment clarified the
states immunity from certain types of lawsuits involving
emergency medical quarantines, and was part of legislation
defining the duties of the Department of Health and Social
Services as those duties pertain to public health and public
health emergencies and disasters. Id.
18 Fremgen, 914 P.2d at 1245.
19 See, e.g., Lawson v. Lawson, 108 P.3d 883, 887-88
(Alaska 2005) (applying both prongs of the courts stare decisis
test to a prior decision permitting judicial promulgation of
child support rules, and declining to overrule the decision);
State v. Semancik, 99 P.3d 538, 541-43 (Alaska 2004) (applying
both prongs to a previous decision permitting a criminal
defendant to challenge on appeal a burglary indictment that
failed to identify the defendants intended crime, and overruling
the decision); State v. Coon, 974 P.2d 386, 394-97 (Alaska 1999)
(applying both prongs to a prior case involving the admission of
scientific evidence under Alaska Rule of Evidence 702, and
overruling that case).
20 Slip Op. at 12 n.31.
21 Slip Op. at 12 n.31.
22 The court echoes this statement elsewhere in its
opinion, arguing that maintaining Zerbe would prevent courts from
effectively enforcing the states sovereign immunity statute
because retaining state immunity would be useless if plaintiffs
could use a different theory to attack conduct that would be
traditionally understood as false imprisonment and nothing more.
Slip Op. at 14.
23 Only a few cases of this type have arisen since 1978,
and these generally involve disputes about the calculation of
time off for good behavior, not simple clerical error. See,
e.g., Jackson v. State, 31 P.3d 105, 108-09 (Alaska App. 2001)
(construing the statute providing for time off for good behavior
to require that it be offset against composite sentences); see
also Charles v. State, Mem. Op. & J. No. 4762 (Alaska App.,
September 24, 2003), 2003 WL 22208498, at *1 (rejecting the
plaintiffs claim that his time off for good behavior was
miscalculated because the courts own calculations suggested a
longer period of imprisonment than DOCs calculations).
24 See, e.g., Blackburn v. State, Dept of Transp. & Pub.
Facilities, 103 P.3d 900, 908 (Alaska 2004) (affirming the
superior courts grant of summary judgment for the state on the
ground that Blackburns misrepresentation claim was barred by AS
09.50.250(3)).
25 In cases where DOC officials claim that a prisoner has
forfeited time off for good behavior by committing an infraction,
more room for discretion may be justified, but the present case
does not require the court to reach this issue.
26 Slip Op. at 15.
27 Slip Op. at 15. Although the primary harm from this
type of negligence is the prisoners unjustified loss of freedom,
it bears mentioning that the state also experiences harm: in
Kinegaks case, the state had to pay the costs of supporting a
prisoner for seven extra days.
28 Fremgen, 914 P.2d at 1245.
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