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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mattox v. State, Dept. of Corrections (5/19/2017) sp-7170

Mattox v. State, Dept. of Corrections (5/19/2017) sp-7170

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

RICHARD  A.  MATTOX,                                         )  

                                                             )          Supreme  Court  No.  S-16031  

                    Appellant,                               )  


                                                             )          Superior Court No. 3PA-09-01695 CI  

          v.                                                 )  


                                                                        O P I N I O N  


STATE OF ALASKA,                                             )  




DEPARTMENT OF CORRECTIONS  )                                            No. 7170  - May 19, 2017  



                    Appellee.                                )


_______________________________ )


                     Appeal from the Superior Court of the State of Alaska, Third  


                     Judicial District, Palmer, Vanessa White, Judge.  


                     Appearances:  Benjamin I. Whipple, Palmer, for Appellant.  


                     Susan M. West, Assistant Attorney General, Anchorage, and  


                     Craig W. Richards, Attorney General, Juneau, for Appellee.  


                     Before:   Stowers, Chief Justice, Maassen, Bolger, Justices.  


                     [Winfree and Carney, Justices, not participating.]  


                     STOWERS, Chief Justice.  



                     In  July  2009  Richard  Mattox  filed  suit  against  the  Department  of  


Corrections (DOC) for injuries arising from an assault by  another prisoner.   Mattox  


alleged that DOC was negligent in failing to accommodate his requests for transfer to a  


different housing module prior to the assault and that DOC was negligent in permitting  


the correctional officer on duty to leave the module during the time the assault occurred.  

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"renew its request for immunity as to particular claims at the close of plaintiffs' case in                                                



                Consequently, OCS moved for a directed verdict on discretionary function  

                                47   The court denied that motion and concluded that the scope of  



immunity grounds. 

                                                                                                     48  While we did not base  

OCS's liability would be addressed through jury instructions.                                                                          


our decision on the superior court's approach to discretionary function immunity, we  


took the "opportunity to clarify the proper procedure for ensuring that the jury does not  


hold the [S]tate liable for its discretionary acts."49                                 Following our decision in  State,  


Department of Corrections v. Cowles, we explained,  


                      "[T]he allegedly negligent decisions in a particular case must  


                      be examined individually to determine if they are" protected  


                      by discretionary function immunity.  The trial court should  


                      attempt  to  rule  on  these  issues  during  pre-trial  motion  


                      practice.   But if specific factual questions necessary to the  


                      trial court's legal determinations need to be resolved by the  


                     jury, specific jury interrogatories should be used.  In short,  


                      although          the     jury      may        need       to    decide        the      factual  


                      underpinnings of the trial court's conclusions, discretionary  


                      immunity decisions must remain with the judge.[50]  


                      Mattox correctly observes that "the [superior] court made no pre-trial or  


mid-trial decisions on the application of the discretionary immunity defense" to DOC's  


policy permitting correctional officers to leavetheirmodules unattended for briefperiods  


of time, leaving the jury "free to decide for itself the scope and application of the state  


           46         Id.   

           47         Id.   

           48         Id.  


           49         Id. at 1043.  


           50         Id. at 1044 (quoting State, Dep't of Corr. v. Cowles, 151 P.3d 353, 359  


                      (Alaska 2006)).  


                                                                   -19-                                                               7170

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 discretionary function immunity doctrine."                                                                                                              During a hearing on Mattox's motion for                                                                                                   

 new trial the superior court also acknowledged in its oral ruling that                                                                                                                                                                         

                                               the proper procedure, which none of [them] followed, would                                                                                                                                 

                                               have been for the court to ideally hold an evidentiary hearing                                                                                                                         

                                               prior   to  trial   on   the   issues   the   parties   reasonably   could  

                                               identify as speaking to the issue of discretionary immunity                                                                   

                                               and   to   make   rulings   about   what  evidence   would   not   be  

                                               allowed, if any, because it was protected by that immunity.                                                                                                                                                        

                                               The alternative would have been a special verdict form that                                                                                                                                        

                                               helped   the    court    to    preserve    for    itself    the    issues    of  

                                               discretionary immunity.   

                                               We agree with the superior court that it is best practice to reserve questions                                                                                                                                                

 of discretionary function immunity for itself, but its failure to do so in this context was                                                                                                                                                                                                    

 not error, as it was in                                                 Mullins. In                              Mullins  OCS had expressly requested that the superior                                                                                                          

 court decide the scope and application of discretionary immunity twice, once through a                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                    51         This  

 summary judgment motion and again through a motion for a directed verdict.                                                                                                                                                                                                                 

 required the superior court to follow the procedures laid out in Mullins and decide the  


 issue for itself.52   Instead, the court refused to decide the matter and issued an erroneous  


jury instruction. 53  In contrast, Mattox made no summary judgment or directed verdict  


 motion regarding the issue, nor did he object to DOC's proposed instruction.  When the  


 superior court proposed a modified version of this instruction and presented it to both  


 parties Mattox again did not object.   Accordingly, the court gave the legally correct  


 statement of the law to the jury.  Thus, unlike Mullins, Mattox impliedly consented to  


 have the jury apply an accurate statement of the law of discretionary function immunity,  


                        51                     Id.  at 1040.   

                        52                     Id.  

                        53                     Id.  at 1043.                              

                                                                                                                                                 -20-                                                                                                                                         7170

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as articulated by the superior court, to the facts as the jury found them.                                                                                                                           We therefore   

conclude that the superior court's failure to apply the doctrine for itself sua sponte was                                                                                                                                       

not error, let alone plain error.                                                  54  


                                    Lastly, "we review denial of a new trial under  an  abuse of discretion  


standard wherein we disturb the trial court's discretion only in the most exceptional  

                                                                                                                                             55      "[G]enerally the verdict should  


circumstances to prevent a miscarriage of justice." 

stand unless the evidence clearly establishes a serious violation of the juror's duty and  


deprives a party of a fair trial."56   Given that the superior court did not commit error, the  


court's decision to deny Mattox a new trial was not an abuse of discretion.  In other  


words, disturbing the court's denial of a new trial is unwarranted and not necessary to  


prevent a miscarriage of justice.57  


V.                CONCLUSION  

                                    We AFFIRM the superior court's denial of Mattox's motion for a new trial.  


                  54                Under Alaska Civil Rule 51, Mattox could not "assign as error the giving                                                                                                              

or the failure to give an instruction unless [he] object[ed] thereto before the jury retire[d]                                                                                                                        

to consider its verdict, stating distinctly the matter to which [he] object[ed] and the                                                                                                                                           

grounds of the objection."                                                    Mattox had several opportunities to object, but did not.                                                                                                        

Instead he agreed with issuing the instruction. Now he alleges plain error on appeal, but                                                                                                                                          

we   conclude   that   neither   the   superior   court's  approach   to   discretionary   function  

immunity in this context nor the language of the instruction given was erroneous.                                                                                                                

                  55                Alaska Fur Gallery,  Inc.  v.  First Nat'l  Bank  Alaska,  345  P.3d  76,  83  


(Alaska 2015) (quoting Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska  



                  56                West v. State, 409 P.2d 847, 852 (Alaska 1966) (citing State v. Gardner,  


371 P.2d 558, 561 (Or. 1962)).  


                  57                We  have  not  been  asked  to  decide  whether  the  jury's  application  of  


discretionary function immunity to DOC's policy of allowing officers to leave modules  


unattended for short periods of time was correct and we do not decide the issue here.  


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