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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Estate of Elsie Logusak v. City of Togiak (06/13/2008) sp-6275
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
| ESTATE OF ELSIE LOGUSAK, by | ) |
| its Personal Representative | ) |
| Frank Logusak, FRANK LOGUSAK, | ) |
| and FANNIE LOGUSAK, | ) |
| ) Supreme Court No. S- 12533 | |
| Appellants, | ) |
| ) Superior Court No. | |
| v. | ) 3DI-05-00020 CI |
| ) | |
| CITY OF TOGIAK, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6275 - June 13, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Dillingham, Fred Torrisi, Judge.
Appearances: Russell L. Winner and Marc A.
Jakubovic, Winner & Associates, Anchorage,
and Myron Angstman, Bethel, for Appellants.
Frank S. Koziol, Anchorage, and Howard S.
Trickey, Jermain, Dunnagan & Owens,
Anchorage, for Appellee.
Before: Matthews, Eastaugh, and Carpeneti,
Justices. [Fabe, Chief Justice and Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
The parents of a sixteen-year old who killed herself
shortly after being released from police custody to her parents
sued the city for wrongful death and negligent infliction of
emotional distress. The parents alleged that police officers
were negligent in failing to detain their daughter in protective
custody. The superior court granted summary judgment to the
city, concluding that the police officers had no duty to keep the
girl in protective custody. Although the police did have a duty
to act reasonably in releasing the girl to her parents, we affirm
the decision of the superior court because the police did not
breach this duty and because they are immune from suit.
II. FACTS AND PROCEEDINGS
A. Facts
Because the Logusaks appeal a superior courts grant of
summary judgment, we draw all permissible factual inferences in
favor of the Logusaks.1
Elsie Logusak grew up in Togiak, a small village where
Elsie and the events of her childhood were well known to the
police officers of the town. While Elsie was a child, one of her
brothers died in a snow-machine accident and another brother
attempted suicide by shooting himself in the shoulder.
Elsies parents had a difficult time handling their
rebellious sixteen-year old daughter. They were unable to
control where Elsie lived, and she moved back and forth from her
parents house to her sisters house as she pleased. Elsie began
drinking at a young age and spent at least two evenings sobering
up in protective custody at the Togiak village jail. On previous
occasions when police officers notified the Logusaks after they
found Elsie drinking, the Logusaks requested that the police keep
her until she sobered up. While in jail on one occasion, she
talked about missing her deceased brother and she envisioned her
funeral.
On September 3, 2004, the Logusaks returned to Togiak
from a week-long fishing trip. During their absence, Elsie had
stayed with her sister, Desiree Green, as she usually did during
those weeks in the summer when her parents were away fishing.
She intended to move back with her parents to live with them
during the school year. On the evening of her parents return,
Elsie moved her belongings from Desirees house to her parents
home.
Around 10 p.m., Elsie left Desirees house. Elsies
brother, Jim, recalls that Elsie was sober at that point. At
approximately 12:30 a.m., Officer William Ferris found Elsie
walking along the road. He administered a breath test, which
showed that Elsie had a blood alcohol level of .056 percent.
Ferris called John Nick, the Togiak police department dispatcher,
and asked Nick to call Elsies parents to tell them that she had
been drinking. Ferris also reported that he planned to pick up
Elsie for underage drinking and curfew violation. Despite
Ferriss orders, Elsie refused to get into his police car and ran
away from him. Unable to follow Elsie, Ferris called Nick and
asked him to notify the Logusaks that she had been drinking and
had fled.
Approximately forty-five minutes after Elsie ran away,
Ferris found Elsie lying on the side of Togiaks main road. Elsie
was non-responsive to Ferriss attempts to wake her. Ferris then
called Nick for assistance because Elsie appeared to be passed
out. Nick sent Officer Molly Gust to the scene. Gust, also
unable to revive Elsie, bent down to check to see if Elsie was
breathing. At that point, Gust noticed that Elsie was breathing
and staring off, but still non-responsive. After the police had
attempted to wake Elsie for over five minutes, Elsie responded
with a smile and told them she had tripped. Both officers later
testified that they believed that Elsie was playing games with
them. The officers noticed [k]ind of a strong odor of alcohol,
but did not administer a new breath test.
After reviving Elsie, the officers picked her up and
walked her to the police car. Elsie could stand, but had trouble
walking without assistance. Elsie told the officers that her
parents were not home, and they drove her to Desirees house.
When they arrived at Desirees house, they found that Desiree was
not there. Although her brother Jim was there, they did not
leave Elsie with Jim because he too was underage and he was known
to consume alcohol. The officers then decided to take Elsie back
to her parents house. Gust radioed Nick and asked him to tell
the Logusaks that the officers were bringing Elsie back to their
house. Nick spoke with Elsies father, Frank Logusak. Frank
asked that the police keep Elsie in the can until she was sober.
Nick replied that the police could not hold her because she was
underage (even though the police had previously kept Elsie in
custody while she was intoxicated).
Elsie rode with Gust to her parents house. Elsie told
Gust that she would join her brother if taken home to her
parents. When the officers arrived at the Logusaks house, Elsie
again told the officers that she did not want to go home. Elsie
then tried to run away, but tripped and fell. The officers
restrained Elsie as she struggled to escape and handcuffed her
arms behind her back. They together picked Elsie up by her
shoulders and took her into the house. Meanwhile, Frank asked
the officers if they could take Elsie to the town jail until she
sobered up. Ferris again told Frank that the town jail was not
an appropriate place to hold minors.
The officers removed Elsies handcuffs and she
immediately fell. She then quickly stood up and ran into her
brothers bedroom. As Frank Logusak argued with Ferris about
leaving Elsie at the Logusak house, Fannie Logusak said she heard
scuffling and feared that Elsie might try to leave the house
through the bedroom window. As Frank Logusak and Ferris tried to
get the bedroom door open, Elsie shot and killed herself.
B. Proceedings
On February 16, 2005, the Logusaks filed a suit against
the City of Togiak. The Logusaks alleged claims of wrongful
death and negligent infliction of emotional distress due to the
Togiak officers negligence in releasing Elsie to her parents
while she was intoxicated.
The city denied all allegations and subsequently moved
for summary judgment. The city argued that it had no duty to
prevent Elsies suicide because the officers did not know nor
reasonably should have known that Elsie was suicidal. Togiak
further asserted that it was immune under AS 09.65.070(d)(2),
which provides municipalities immunity from suits based on
discretionary acts.
The superior court granted the citys motion for summary
judgment, finding that the city and its police officers did not
owe a duty; as a result, the court declined to reach the immunity
question. The Logusaks appeal this award of summary judgment.
III. STANDARD OF REVIEW
We review a courts award of summary judgment de novo.2
We will affirm a grant of summary judgment where no genuine issue
of material fact exists and the prevailing party is entitled to
judgment as a matter of law, drawing all reasonable factual
inferences in favor of the non-prevailing party.3
IV. DISCUSSION
We first analyze whether the police officers owed Elsie
a duty. In negligence cases, we treat duty as the threshold
issue because [c]onceptually, the question of the applicability
of a statutory immunity does not even arise until it is
determined that a defendant otherwise owes a duty of care to the
plaintiff and thus would be liable in the absence of such
immunity.4
A. Togiak Police Officers Did Not Breach Their Duty To Act
Reasonably in Releasing Elsie to Her Parents.
The superior court awarded summary judgment to Togiak
after finding that Ferris and Gust did not have a duty to keep
Elsie in custody. The Logusaks appeal this finding, claiming
that the police have a heightened duty to protect all persons
taken into protective custody, and that therefore Ferris and Gust
had a duty to protect Elsie from self-inflicted injury.
When determining whether there is an actionable duty of
care, we first look to common law principles and statutes that
may dictate such a duty.5 The Logusaks contend this duty arises
from the common law jailer and parole officer duties of care as
well as statutes regulating police custody of individuals
incapacitated by alcohol and of minor runaways. We are not
persuaded that these common law or statutory duties apply to this
case. Temporary police custody of an intoxicated minor presents
a much different situation than custody of a jail detainee where
we have found a heightened duty of care due to the confinement of
a person away from an environment the person knows and
understands6 and a much different situation than release of a
parolee where we have imposed a duty based primarily on parole
officers enhanced knowledge of the behavior and habits of their
parolees.7 Instead, we look to the Alaska legislatures clear
effort to address the situation before us: release of an
intoxicated juvenile to her parents under AS 12.25.030. Alaska
Statute 12.25.030(b)(3)(B) provides that a peace officer without
a warrant may arrest a person when the peace officer has
reasonable cause for believing that the person has violated AS
04.16.050 [the prohibition against minors consuming alcohol];
however, unless there is a lawful reason for further detention, a
person who is under the age of 18 . . . shall be cited for the
offense and released to the persons parent . . . . (Emphasis
added.) The legislature recognized a heightened need to release
a minor to her parents in situations where the minor is suspected
to have consumed alcohol. Accordingly, we examine the police
officers actions under AS 12.25.030.8
The existence of a statute addressing the situation
before us is not the end of the inquiry, however. Under the
doctrine of negligence per se, we may impose a duty of care where
a statute applies and certain requirements are met. In Morris v.
Farley Enterprises, Inc.,9 we adopted the Second Restatement of
Torts definition of negligence per se:
The court may adopt as the standard of
conduct . . . the requirements of a
legislative enactment . . . whose purpose is
found to be exclusively or in part (a) to
protect a class of persons which includes the
one whose interest is invaded, and (b) to
protect the particular interest which is
being invaded, and (c) to protect that
interest against the kind of harm which has
resulted, and (d) to protect that interest
against the particular hazard from which the
harm results.[10]
Alaska Statute 12.25.030 serves to protect a minor arrested by
peace officers by calling for her detention, as opposed to
release to her parents, only where the peace officers have a
lawful reason for further detention. We read into AS 12.25.030
the duty of police officers to act reasonably when releasing a
detained minor to her parents. Under this statute, a police
officer will have acted non-negligently where the officer
reasonably believed that there was no lawful reason for further
detention.
Turning to the facts of this case, it is clear that
Ferris and Gust acted reasonably in releasing Elsie to her
parents instead of detaining her. Under AS 12.25.030, the police
officers initially properly took Elsie into custody based on
their reasonable belief that Elsie had violated AS 04.16.050, a
belief supported by the result of her breath test. Once the
officers detained Elsie, they were then governed by AS 12.25.030,
which indicated that the police must release a minor to her
parents unless there is a lawful reason not to do so.
The Logusaks fail to present any facts to support their
argument that there was a lawful reason to keep Elsie in custody.
The only other law that Elsie violated that evening was a city
curfew ordinance a law that does not provide for detention under
any circumstances. In addition, the two statutes that the
Logusaks argue mandate detention, AS 47.37.170 and AS 47.10.141,
are not applicable here and therefore are not lawful reasons for
further detention. The former does not apply because Elsie was
not incapacitated by alcohol as that term is defined by law.11
Elsie was not a runaway and therefore AS 47.10.141(b)(1)(A) does
not apply.
In addition to the reasonableness of the officers
actions in this particular case, general policy considerations
support encouraging police officers to return a potentially
suicidal minor to her parents. Putting an allegedly suicidal
minor in jail, instead of returning her to her parents, runs
counter to previous decisions of this court. In Kanayurak v.
North Slope Borough, a case examining the duty of care of
jailers, we overturned a lower courts grant of summary judgment
to a municipality following the suicide of a detainee in the
municipalitys jail.12 In reasoning that there was a genuine issue
as to the duty owed by the jailer to the detainee, we relied on
expert testimony that Eskimo women and incarcerated persons are
particularly prone to suicide; we relied also on the fact that
confinement and isolation are often factors that increase the
likelihood of suicide.13 Under Kanayurak, and especially in light
of testimony that Elsie had previously expressed fatalistic
thoughts while in jail, the police did not breach their duty in
releasing Elsie to her parents.
We therefore conclude (1) that the police officers did
have a duty to act reasonably in releasing Elsie to her parents
and (2) that, indulging all reasonable inferences in favor of the
Logusaks, the police did not breach that duty but rather acted
reasonably in releasing Elsie to her parents.
B. The Police Officers Acted Within Their Discretion and
Therefore Togiak Is Immune from Suit.
We affirm the superior court for a second reason: Apart
from the question of duty, we hold that the officers and Togiak
are immune from suits of this sort.
Alaska Statute 09.65.070 exempts municipalities from
civil liability for claims based upon the exercise or performance
or the failure to exercise or perform a discretionary function or
duty by a municipality or its agents . . . whether or not the
discretion involved is abused. This statutory grant of immunity,
which we previously characterized as discretionary function
official immunity,14 is a type of qualified immunity.15 Under this
qualified immunity, a public official is shielded from liability
. . . when discretionary acts within the scope of the officials
authority are done in good faith and are not malicious or
corrupt.16
We have previously described discretionary functions as
actions that require personal deliberation, decision, and
judgment.17 In Pauley v. Anchorage School District, we granted
immunity to a school district under AS 09.65.070 after the school
released a child to his non-custodial parent.18 In holding that
the release of the child was a discretionary act, we considered,
among others, the following factors: (1) the principal acted with
deliberation and made a considered judgment; (2) the principal
reviewed relevant court documents and identification presented by
the non-custodial parent; and (3) the principals actions were in
no sense malicious, corrupt, or taken in bad faith.19 Although
the facts of Pauley differ considerably from the events in this
case, we find the analysis for classifying an act as
discretionary instructive to the case at hand.
We recently clarified our test for determining whether
an officer is entitled to qualified immunity for performing a
discretionary act in Sheldon v. City of Ambler.20 In Sheldon we
explicitly adopted the federal immunity standard, as articulated
by the United States Supreme Court in Saucier v. Katz, for
granting discretionary function official immunity to police
officers.21 The Supreme Court, in Saucier, set out a two-part
test for qualified immunity. In determining whether an officer
is immune, a court considers (1) whether an officers actions were
objectively reasonable and (2) whether the officer might have
reasonably believed that his actions were reasonable.22 In
Sheldon, we found that a city was immune from suit after a
village police officer (VPO), faced with an intoxicated man
posing a violent threat to the mans girlfriend and others, in an
escalating emergency situation, used a bear hug to take the man
down.23 Injuries resulting from this bear hug led to the mans
death.24 Because the VPO did not reasonably know that a bear hug
could result in death and because the act itself was not on its
face excessive or egregious, we held that he had acted reasonably
and that therefore the city was immune.25
In this situation, even drawing all factual inferences
in the Logusaks favor, the decision of the police to take Elsie
home to her parents was clearly discretionary. Under the Pauley
factors for characterizing discretionary acts personal
deliberation, decision, and judgment it is manifest that the
police were exercising discretion. As discussed above, Alaska
law required that they release Elsie to her parents rather than
retain her in custody unless there was a lawful reason not to do
so. Here, there was no lawful reason not to release Elsie to her
parents. Indeed, the officers decision to release her to her
parents exhibited reasoned judgment. The uncontroverted
testimony shows police officers who simply tried to take an
intoxicated minor to her family so they could care for her. They
first drove Elsie to her sisters house so that her sister could
care for her. Upon learning her sister was not home and that
Elsies parents were in town, the police declined to leave Elsie
with her brother, who was an inappropriate chaperone as he was
underage and known to drink, and instead drove her home so that
she could be released to her parents. Even given that Elsies
parents had requested that the police detain her to control her
and even assuming that the officers understood Elsies cryptic
remark about her brother to hint at suicide, there is no shred of
evidence suggesting that the polices decision not to detain her
was in bad faith. Without any showing of capriciousness or
maliciousness, the Logusaks have failed to show that Ferris and
Gusts decision was not an exercise of discretion.
We turn now to the Sheldon inquiry: whether the police
acted reasonably in performing this discretionary act. Ferris
and Gust relied on a reasonable interpretation of AS 47.37.170
that prohibited placing minors in jail and encouraged the release
of intoxicated minors to their parents. They also acted pursuant
to AS 12.25.030(b)(3)(B), which as noted above provides that the
police must release a minor who has consumed alcohol to her
parents unless there is a lawful reason for further detention.
The officers followed the law and placed Elsie in the care of her
parents, who would presumably be better equipped to handle Elsie.
This situation thus presents an even clearer case for immunity
than Sheldon where there were no applicable laws regulating the
VPOs behavior.
The City of Togiak, therefore, is immune under
discretionary function official immunity.
V. CONCLUSION
Because the police officers acted reasonably in
releasing Elsie to her parents and thus did not breach their duty
to protect her, and because the police officers were immune from
suit for their discretionary acts, we AFFIRM the superior courts
award of summary judgment to the City of Togiak.
_______________________________
1 See Perkins v. Doyon Universal Servs., LLC, 151 P.3d
413, 415-16 (Alaska 2006).
2 Brannon v. Continental Cas. Co., 137 P.3d 280, 284
(Alaska 2006).
3 Perkins, 151 P.3d at 415.
4 Div. of Corr., Dept of Health & Soc. Servs. v. Neakok,
721 P.2d 1121, 1125 (Alaska 1986) (quoting Davidson v. City of
Westminster, 649 P.2d 894, 896 (Cal. 1982)).
5 See DeNardo v. Corneloup, 163 P.3d 956, 961 (Alaska
2007).
6 See Joseph v. State, 26 P.3d 459, 466 (Alaska 2001);
Kanayurak v. N. Slope Borough, 677 P.2d 893, 897 (Alaska 1984);
Wilson v. City of Kotzebue, 627 P.2d 623, 628 (Alaska 1981).
7 Neakok, 721 P.2d at 1126-27, partially overruled on
other grounds by State v. Cowles, 151 P.3d 353, 363-65 (Alaska
2006).
8 Compare AS 12.25.030 with AS 47.12.250(a)(2)(A)
(general delinquent minor detention statute providing that a
police officer may release a minor to her parents if detention is
not necessary to protect the minor or the community). We examine
the officers actions under AS 12.25.030 rather than AS 47.12.250,
following our practice of giving precedence to specific statutes
over general statutes. Petrolane, Inc. v. Robles, 154 P.3d 1014,
1034 (Alaska 2007) (internal citations omitted) (quoting City of
Cordova v. Medicaid Rate Commn, Dept of Health & Soc. Servs.,
State of Alaska, 789 P.2d 346, 352 (Alaska 1990)) (It is a maxim
of construction that specific statutes should be given precedence
over more general ones.).
9 661 P.2d 167 (Alaska 1983).
10 Id. at 168 (quoting Restatement (Second) of Torts 286
(1965)).
11 Although the evidence shows that Elsie was intoxicated,
she was not incapacitated by alcohol as defined by AS
47.37.270(11). AS 47.37.270(11) provides that incapacitated by
alcohol means a person who, as a result of alcohol or drugs, is
unconscious or whose judgment is otherwise so impaired that the
person (A) is incapable of realizing and making rational
decisions with respect to the need for treatment and (B) is
unable to take care of the persons basic safety or personal
needs, including food, clothing, shelter, or medical care. When
the police officers released Elsie to her parents, she was not
unconscious and did not otherwise meet the statutory definition
of incapacitated by alcohol.
12 677 P.2d 893, 897-99 (Alaska 1984).
13 Id. at 897.
14 Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1286
(Alaska 2001).
15 Id.
16 Id. (quoting Aspen Exploration Corp. v. Sheffield, 739
P.2d 150, 158 (Alaska 1987)).
17 Id. at 1285 (quoting Samaniego v. City of Kodiak, 2
P.3d 78, 83 (Alaska 2000)).
18 Id. at 1285-86.
19 Id. at 1286.
20 178 P.3d 459 (Alaska 2008).
21 Id. at 463 (citing Saucier v. Katz, 533 U.S. 194
(2001)).
22 Id. (citing Saucier, 533 U.S. at 205) (emphasis in
original).
23 Id. at 466-67.
24 Id. at 462.
25 Id. at 467.
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