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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ramsey Barton v. City of Valdez (1/21/2022) sp-7579
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
RAMSEY BARTON, )
) Supreme Court No. S-17691
Appellant, )
) Superior Court No. 3VA-18-00016 CI
v. )
) O P I N I O N
CITY OF VALDEZ, )
) No. 7579 - January 21, 2022
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Valdez, Patrick J. McKay, Judge.
Appearances: Cris Rogers, Rogers & Wirschem LLC, and
Brian Heady, Law Office of Brian Heady, Anchorage, for
Appellant. Michael D. Corey and Laura S. Gould, Brena,
Bell & Walker, P.C., Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
Ramsey Barton sued the City of Valdez after she was severely injured by
falling from a tire swing overhanging a cliff in an undeveloped area of a city park. The
swing was not built by the City, and Barton alleged the City was negligent in failing to
remove it. The superior court assumed on summary judgment that the City had imputed
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knowledge of the swing. Yet it concluded that because there was no evidence the City
had a policy to inspect or remove hazards from undeveloped areas of the park, the City
was entitled to discretionary function immunity. The court therefore dismissed Barton's
lawsuit against the City.
The purpose of discretionary function immunity is to prevent "judicial
intrusion on the policy-making powers committed to the legislative and executive
1 Because there are no conceivable policy reasons for declining to remove the
branches."
unauthorized swing - a human-made hazard that was known, easily accessible, and
simple to remove - the failure to remove it is not protected by discretionary function
immunity. We therefore reverse the superior court's decision and remand for further
proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
The Dock Point Trail is a short loop trail located near Valdez.2 From the
trailhead, the trail moves up a short steep hill before dropping down to a small meadow;
fromthere, wooden boardwalks lead to two viewing platforms overlooking Harbor Cove
and the Port of Valdez to the south. These platforms are known as the East and West
Overlooks. The trail then loops back to the trailhead after a gradual descent. The map
1 Haight v. City & Borough of Juneau , 448 P.3d 254, 257 (Alaska 2019).
2
This recreation area is described in different ways by materials in the
record. The City of Valdez Parks & Recreation Department refers to it only as the "Dock
Point Trail" in its Summer Trail Map Guide (as of April 2015). A photograph showed
that there was an official sign in 2016 that called the area "Dock Point." A 2019 travel
guide also referred to the area as "Dock Point Park." Because of this factual discrepancy,
we refer to the recreation area overall as "Dock Point Area" and the marked main trail
as "Dock Point Trail."
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of the trail shows no side trails or paths off this loop other than a private road to the east,
which is marked by a locked gate and "no trespassing" signs.
The trail is gated and marked by a sign. Part of the trail is a treated timber
walkway over marshland. The City's maintenance department erects summer signage,
including "Bear Aware" signs and interpretive signs that discuss the flora and fauna in
the area. A substantial portion of the trail is on a roadway, which the City maintains.
The maintenance department also clears brush from the main trail and maintains the
wooden structures (e.g., fence lines and decking) on and along the trail.
About 73 yards away from the East Overlook is a clearing with a bluff. The
path to the clearing, while not an official part of the trail, is well worn and trampled; but
unlike the trail to the East Overlook, there is no boardwalk, handrail, or fence built on
it. At the time of Barton's injury, a tire swing hung by a bright red rope from a tree in
the clearing; the tire could swing out beyond the edge of the bluff. The City did not
install the tire swing.
In May 2015 Barton, then a junior at Valdez High School, was at Dock
Point Area with three of her friends. The group went to the clearing, where Barton stood
by the edge of the bluff and took pictures of the view. Meanwhile, one of her friends
climbed onto the tire swing, which another friend then started pushing. The friend on
the swing bumped into Barton, who was still taking pictures. Barton fell over the bluff
and approximately 70 feet down to the rocks and water below. She suffered serious
injuries that have left her partially paralyzed and in a wheelchair.
After rescuing Barton, a police officer went back to the scene and took
follow-up photographs. By the time he had returned to the scene, the Valdez Fire
Department had removed the tire swing.
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B. Proceedings
Barton sued the City, alleging that it was liable for her injuries due to its
negligent failure to take down the tire swing. In response the City claimed immunity
under AS 09.65.200, which provides immunity from ordinary negligence on
"unimproved land." After the parties concluded discovery, the City moved for summary
judgment.
Less than a week before oral argument was to be held on the City's
3
summary judgment motion, this court decided Haight v. City & Borough of Juneau . In
that case we held that the municipal government's decision to not regulate safety on a
popular lake was protected by discretionary function immunity.4 The superior court
requested additional briefing on discretionary function immunity, which the parties
provided.
At oral argument the City argued that its failure to remove the tire swing
was a non-decision protected by discretionary function immunity. Barton argued that
the City had an affirmative duty to her to maintain the clearing and abate the tire swing,
which was a known hazard for Dock Point Area users. She also argued that any decision
to leave the tire swing in place was an "operational" decision outside the scope of
discretionary function immunity.
The superior court issued its oral decision on the record. It ruled that there
was a dispute of material fact as to whether the City knew of the swing and therefore, for
the purposes of summary judgment, assumed that the City had imputed knowledge of its
existence. But the court granted summary judgment for the City, observing that there
was "no evidence that the City of Valdez maintained anything other than the main trail
3 448 P.3d 254.
4 Id. at 259, 261.
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and the overlooks[, or] . . . ever considered any policy to inspect, maintain, or remove
hazards on any similar situated land or off the trail systems on any city owned land." It
reasoned that because the City had not adopted a policy of inspecting and maintaining
parts of the Dock Point Area off the developed trail, it could not be held liable for failure
to remove the swing. The court made no findings or conclusions about whether the City
was immune against negligence occurring on "unimproved land" under AS 09.65.200.
Barton moved for reconsideration, which the superior court denied, and now appeals.
III. STANDARD OF REVIEW
Whether a particular act or omission is protected by discretionary function
immunity is a question of law that we review de novo. 5 Grants of summary judgment
6
In doing so "[w]e review the facts in the light most
are also reviewed de novo.
favorable to the non-moving party and draw all factual inferences in the non-moving
7
party's favor." The trial court's ruling is affirmed "when there are no genuine issues of
8
material fact and the prevailing party . . . [is] entitled to judgment as a matter of law."
IV. DISCUSSION
A. A Governmental Decision Is Not Entitled To Discretionary Function
Immunity Unless It Is A "Planning" Decision That Implicates Policy
Considerations.
Alaskalawgenerally allowsdamagesclaims againstmunicipalities but bars
claims for damages "based upon the exercise or performance or the failure to exercise
5 Steward v. State , 322 P.3d 860, 862 (Alaska 2014) (citing Kiokun v. State,
Dep't of Pub. Safety , 74 P.3d 209, 212 (Alaska 2003)).
6 Christensen v. Alaska Sales&Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).
7 Jovanov v. State, Dep't of Corr., 404 P.3d 140, 145 (Alaska 2017) (quoting
Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013)).
8 Id. (alterations in original) (quoting Kalenka, 305 P.3d at 349).
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or perform a discretionary function or duty by a municipality or its agents, officers, or
9
employees . . . ."
We refer to this immunity as discretionary function immunity.
The purpose of this immunity is to "preserve[] the separation of powers"
- to guard "against judicial intrusion on the policy-making powers committed to the
10 "[T]hese powers include assessing the costs and
legislative and executive branches."
benefits of a proposed course of action, budgeting, and distributing scarce government
resources."11 Immunizing such actions "prevents the judicial branch from adjudicating
the soundness of policy decisions that it lacks the institutional capacity to make."12 It
also "protects public resources against unforeseeable and overwhelming liability that
mightresult frommakinggovernmentalpolicydecisions generallysubject todamages."13
To distinguish those decisions that are protected by discretionary function
14
immunity from those that are not, we have adopted the "planning-operational test."
This "test requires courts to 'isolate those decisions sufficiently sensitive' to separation
9 AS 09.65.070(a), (d)(2); see also Freeman v. State, 705 P.2d 918, 920
(Alaska 1985) ("[L]iability is the rule; immunity is the exception.").
10 Haight v. City & Borough of Juneau, 448 P.3d 254, 257 (Alaska 2019)
(citing Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 976 (Alaska
2005)).
11 Id.
12 Id. ; see also Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983)
("The judicial branch lacks the fact-finding ability of the legislature, and the special
expertise of the executive departments.").
13 Haight, 448 P.3d at 257.
14 Id. at 256 (quoting Japan Air Lines Co. v. State, 628 P.2d 934, 936 (Alaska
1981)).
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of powers concerns and 'protect those decisions worthy of protection without extending
15
the cloak of immunity to an unwise extent.' "
Decisions entitled to protection are "planning" decisions that entail
" 'formulation of basic policy' including consideration of financial, political, economic,
or social effects of the policy."16 "[D]ecisions that rise to the level of planning or policy
formulation will be considered discretionary acts which are immune from tort
liability . . . ."17
By contrast, "decisions that are merely operational in nature, thereby
implementing policy decisions, will not be considered discretionary" and are therefore
"not . . . shielded from liability."18 "Operational" decisions typically involve the
"[n]ormal day-by-day operations of the government."19 For example, "when a planning
decision has been made to follow a particular course of action, decisions carrying out that
course of action and governed by . . . standards are unprotected operational decisions."20
"Such decisions are unprotected because they do not involve policy judgments and
15 Id. at 257 (quoting Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982)).
16 Steward v. State, 322 P.3d 860, 863 (Alaska 2014) (citing Estate of
Arrowwood ex rel. Loeb v. State, 894 P.2d 642, 644-45 (Alaska 1995)).
17 Haight, 448 P.3d at 256 (quoting Japan Air Lines Co., 628 P.2d at 936).
18 Id. at 256-57 (quoting Japan Air Lines Co., 628 P.2d at 936).
19 Steward, 322 P.3d at 863 (quoting State v. Abbott , 498 P.2d 712, 720
(Alaska 1972)).
20 Haight, 448 P.3d at 258.
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because reviewing the government's adherence to standards falls within the traditional
21
competence of the courts."
22 Because almost any act
This test is admittedly "somewhat imprecise."
involves some discretion, whether a decision is planning or operational is evaluated in
light of its nature and the totality of the circumstances.23
Even if the decision challenged is of the planning type - because it
involves "consideration of financial, political, economic, or social effects"24 - it may
not be immune if the government has nevertheless affirmatively assumed the duty to act
in a certain way.
[O]nce it is determined that the decision at issue is of the type
entrusted to the planning level of government, a claimant
must show that an affirmative assumption of duty has been
made by the [government] in order to have a claim for relief
for alleged operational negligence in performing that duty.[25]
21 Id.
22 Id. at 257.
23 Id.
24 Steward, 322 P.3d at 863 (citing Estate of Arrowwood ex rel. Loeb v. State,
894 P.2d 642, 644-45 (Alaska 1995).
25 Indus. Indem. Co. v. State, 669 P.2d 561, 566 (Alaska 1983); see also
Haight, 448 P.3d at 259 ("[W]e conclude - as did the superior court - that not
regulating lake safety was a planning decision protected by discretionary function
immunity. Absent the assumption of an affirmative duty, the City may not be held liable
for the decision not to act.").
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Such an assumption of duty need not be express: An assumption of duty may be
discerned if the government has adopted regulations or standards requiring it to act in a
26 Failure to adhere to those regulations or standards would not be immune.
certain way.
We recently applied this framework in Haight v. City & Borough of
27
Juneau . In Haight a teenager died in a motorized watercraft accident on Auke Lake,
which was managed in part by the municipality.28 The teenager's mother sued the
municipality, claiming that it negligently failed to take measures to ensure the safe
operation of motorized watercraft on the lake.29 The municipality claimed that it was
protected from suit by discretionary function immunity.30 We agreed.31 We concluded
that "not regulating lake safety was a planning decision protected by discretionary
functionimmunity"becauseit "involved basicpolicyconsiderationsregarding allocation
32 We also considered whether the
of scarce resources and which uses to allow."
municipality had nevertheless assumed the duty to regulate lake safety.33 Observing that
state law did not require the municipality to regulate lake safety and that the
municipality's own ordinances and land use plans did not address lake safety, we
26 See Haight , 448 P.3 at 259-260.
27 Id . at 254.
28
Id. at 255-56.
29 Id. at 256.
30 Id.
31
Id. at 261.
32
Id. at 259-60.
33 Id.
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34
concluded that the municipality had not affirmatively assumed the duty to regulate.
For that reason the municipality was immune from liability for its lack of safety
regulation at the lake: "Unless dictated by a plan or regulation, the decision not to act
is fundamentally discretionary, as are its consequences, because scarce resources mean
that not every possible course of action can be funded and because of the threat of
35
unpredictable and overwhelming liability."
Applying this framework to Barton's case, we must first consider whether
not removing the tire swing is a planning-type decision - the kind of decision that
entails balancing policy considerations. If so, then the City is immune unless it
affirmatively assumed the duty to remove the swing. If not, then discretionary function
immunity does not apply.
B. Assuming The City Knew Of The Tire Swing's Existence, Its Failure
To Remove The Swing Is Not A Planning Decision Entitled To
Immunity.
Determining whether a decision is planning or operational requires first
identifying the precisedecision at issue. The superior court identified the City's decision
as whether to maintain and inspect areas of the park outside of the developed site. It
reasoned that although the "removal of hazards" is generally an operational decision, the
decision whether to maintain a given area is a planning decision. Absent "evidence that
the City of Valdez ever considered whether to inspect and maintain areas off the main
Dock Point Trail," the court reasoned that the City's failure to do so was entitled to
immunity. But because the superior court assumed for purposes of summary judgment
that the City in fact knew of the swing's existence, the more precise way to describe the
City's decision is whether to remove a known hazard on the City's property.
34 Id.
35 Id. at 260.
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Our decisions have recognized that whether to abate a known hazard is
often a planning-type decision because it involves policy considerations. In Estate of
Arrowwood ex rel. Loeb v. State we held that the State's refusal to close a highway due
to icy conditions was a planning-level decision entitled to immunity because this
36
decision requires officials to balance safety against the need for reliable transportation.
And in Freeman v. State we held that although the State had assumed a duty to maintain
the Dalton Highway in a safe condition, its decision to forgo dust abatement procedures
was entitled to immunity because it involved "such basic policy factors as the cost of
such a program, alternative uses for the money . . . , and . . . environmental detriments
which would be inherent in the several dust control alternatives . . . ."37
The budgetary implications of a decision are often enough to make it a
planning decision entitled to immunity. We have held multiple times, for instance, that
the State's decision to not install a guardrail is one of policy.38 We similarly have found
36 894 P.2d 642, 646 (Alaska 1995) ("If we ruled [against immunity], the
result would be that state officials would be forced to close state highways upon
receiving notice of the first accident which resulted from adverse weather and road
conditions, or else risk incurring liability for failure to do so. Given the long winters and
harsh weather conditions which occur throughout most of Alaska, such a decision would
make road travel at best unreliable.").
37 705 P.2d 918, 920 (Alaska 1985).
38 E.g., Steward v. State, 322 P.3d 860, 863-64 (Alaska 2014) (finding
discretionary immunity applied to State's decision not to reinstall a removed guardrail);
Wells v. State, 46 P.3d 967, 969 (Alaska 2002) ("[T]he State is immune from suit for
claims based on its decision to install or not install guardrails." (citations omitted));
Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983) ("[T]he question of whether
or not to install a guardrail . . . was one of policy, and . . . an affirmative decision to go
ahead with the installation had to be made at the discretionary level in order to advance
the chain of events to the operational stage." (footnote omitted)).
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that decisions on whether to install sequential stop lights or traffic safety devices were
39
policy decisions and not operational ones.
By contrast, once a decision is made to abate a particular hazard, the
decisions involved in implementing that policy are typically deemed operational. In
State v. Abbott we affirmed a decision that the State was not entitled to immunity for
inadequately sanding an icy curve despite a policy of "work[ing] overtime if necessary
to keep sharp curves well sanded."40 We reasoned:
Once the initial policy determination is made to maintain the
highway through the winter by salting, sanding and plowing
it, the individual district engineer's decisions as to how that
decision should be carried out in terms of men and machinery
is made at the operational level; it merely implements the
basic policy decision.[41]
Unfortunately "the dividing line between planning and operational decisions may often
be hard to discern."42 Because "almost any act, even driving a nail, involves some
'discretion' . . . decisions made while implementing a planning decision are not
39 See, e.g., Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982) (holding
that decision to not install sequential traffic light at intersection was a planning decision
because placement of traffic safety devices depended on priorities set by the Department
of Transportation and safety engineers); Rapp v. State, 648 P.2d 110, 110-11 (Alaska
1982) (applying Wainscott to decision to install stop sign instead of sequential traffic
light).
40 498 P.2d 712, 716-17 (Alaska 1972).
41 Id. at 722.
42 Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 977
(Alaska 2005).
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43
necessarily unprotected operational decisions." The distinction "depends on the
44
particular circumstances" of the case.
Although the distinction between planning and operational decisions is not
always clear, this much seems plain: Assuming the City was aware of the tire swing's
existence, the decision whether to remove the swing does not implicate any of the policy
considerations that would justify discretionary function immunity. A "decision not to
act is protected because limited budgets entail tradeoffs between competing needs -
decisions involving basic policy considerations."45 The City has not identified and we
cannot conceive of any policy considerations at play in deciding whether to cut down an
easily accessible, unauthorized, and hazardous tire swing.
Taking the evidence in the light most favorable to Barton, as we must on
summary judgment, there is no indication that the swing would have been difficult, risky,
or expensive to remove. The swing was only 73 yards away from the main trail, and the
trail to it was easily visible. The swing consisted of a tire hanging by a rope from a tree.
Immediately after Barton was injured, the Fire Department simply cut down the swing.
Although it is easy to see how abating some hazards in undeveloped parklands would be
expensive, time-consuming, or dangerous for staff - and thus implicate "tradeoffs" and
"basic policy considerations"46 - it is hard to see how abating this particular hazard
would do so.
43 Haight v. City & Borough of Juneau, 448 P.3d 254, 257 (Alaska 2019)
(citing Abbott , 498 P.2d at 720; Kiokun v. State, Dep't of Pub. Safety, 74 P.3d 209, 218
(Alaska 2003); Guerrero, 123 P.3d at 977).
44 Id.
45 Id. at 258.
46 Id .
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47
Furthermore, the tire swing was an unauthorized human-made hazard, as
opposed to a natural one or a structure intentionally created to serve the park's purpose.
Deciding whether to cut down a particular tree, abate dangerous wildlife, or place signs
near scenic but dangerous features like cliffs involves aesthetic, ecological, and
48 Park managers'
recreational tradeoffs that may make these decisions immune.
decisions about whether to create structures like public use cabins and mountain bike
trails may involve similar policy considerations. Such policy considerations are not
implicated by this unauthorized and hazardous rope swing.
Thesuperior courtcorrectlyreasoned that agovernment's decision whether
to maintain particular areas of parkland or to inspect those areas for hazards is generally
a planning decision because it entails "tradeoffs between competing needs - decisions
49 Holding the state and municipal governments
involving basic policy considerations."
liable for failure to discover hazards in undeveloped areas of parkland would be
improper "judicial intrusion on the policy-making powers committed to the legislative
47 The undisputed evidence is that the City did not install the tire swing.
Several city officials including a park maintenance supervisor for the City claimed to not
know of its existence.
48 Cf. Lam v. United States, 979 F.3d 665, 681 (9th Cir. 2020) (observing that
the decision to cut down a tree is susceptible to competing policy considerations,
including scenery and wildlife preservation); Chadd v. United States, 794 F.3d 1104,
1113 (9th Cir. 2015) (observing that the National Park Service's decision to not
exterminate a "problematic" mountain goat was susceptible to a policy to protect the
animal "to facilitate the public's enjoyment of the species"); Merry v. Nat'l Park Serv.,
985 F. Supp. 2d 90, 95 (D.D.C. 2013) (finding that the National Park Service's decision
to minimize the amount of signage so "as not to detract from aesthetics of the historic
location" of Ford's Theater fell under the discretionary function exception to the Federal
Torts Claims Act).
49 Haight, 448 P.3d at 258.
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and executive branches" and could result in "unforeseeable and overwhelming
50
liability."
But because the City was deemed aware of the rope swing, the decision
facing it was not whether to scour undeveloped areas for unknown hazards; it was
51 That decision is not the type that implicates
whether to remove that particular hazard.
policy considerations of any kind and thus is not entitled to immunity.52
V. CONCLUSION
We REVERSE the trial court's decision and REMAND the case for further
proceedings consistent with this opinion.
50 Id. at 257.
51
It is worth noting that the City's Parks Director at the time of the accident
testified that the maintenance staff took down unauthorized zip lines that had been set up
on City property.
52 Given the procedural posture of the case, the superior court correctly
assumed, in light of what it described as "contested facts," that the City had "imputed
notice" of the tire swing. Our analysis of discretionary function immunity rests on this
assumption. We express no opinion whether the City is entitled to discretionary function
immunity if it is later found that the City had no notice of the tire swing's existence.
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