Carlson v. State
| Decision Date | 24 August 1979 |
| Docket Number | No. 3919,3919 |
| Citation | 598 P.2d 969 |
| Parties | Julie CARLSON and James Carlson, Appellants, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Michael J. Schneider, Elliott T. Dennis, Johnson, Christenson & Glass, Anchorage, for appellant.
Sanford M. Gibbs, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.
This case involves a bear attack. The issue is whether the State of Alaska may be held liable for personal injuries inflicted by a bear, when the bear is attracted to the site of the attack by garbage that had accumulated on state-owned property. The superior court granted summary judgment in favor of the State on the ground that the State was immune from liability under the Alaska Tort Claims Act, AS 09.50.250. We conclude that the State was not immune under the Act and that, depending on the facts to be established, the State may be liable for personal injuries resulting from the attack. We therefore reverse the decision of the superior court and remand the case for further proceedings.
On the evening of October 22, 1975, appellant Julie Carlson was attacked and mauled by a bear at the Robe River turnout at Mile 2 of the Richardson Highway near Valdez. The Robe River turnout is a state-owned roadside area built and designed for tourist use. It was equipped with six to ten fifty-five gallon drums, without lids, for use as litter barrels. The Carlsons lived in a camper which had been removed from their pick-up and placed on the ground in a rented space. They had lived there for about six months. Every day the Carlsons drove the pick-up truck from the camper space and parked it at the Robe River turnout. From there they rode a bus into town. The turnout was the closest available parking area to the bus stop. 1 In the mornings the turnout was usually full of cars belonging to people who caught the bus, but in the evenings, by the time the Carlsons returned from town, there were usually only one or two cars there. The State and the City of Valdez were apparently aware that the turnout was used for such parking.
On the day of the attack, the Carlsons had had to park some distance from the road, next to the litter barrels. The barrels were running over, and garbage and trash were scattered around on the ground. 2 The attack occurred as the Carlsons were walking to their pick-up truck from the bus-stop in the evening. As they crossed the turnout toward their truck, a bear appeared. It threw James into the woods then attacked Julie. Julie was severely wounded, suffering a broken leg and lacerations on her back, and it appears that she now may be suffering permanent partial disability.
The Carlsons filed a suit for damages against the State of Alaska. 3 Their basic contention was that the State was negligent in allowing garbage to accumulate at the turnout, since it knew that there were bears in the area, and it knew or should have known that garbage would attract bears and pose a danger to people who used the turnout. They also alleged that the State was negligent in failing either to warn users of the turnout of the danger of bears or to fence the area to keep bears out or to take other measures to protect the users of the turnout. The State pled as affirmative defenses (1) that Julie Carlson was comparatively negligent and (2) that the State was protected by sovereign immunity.
The superior court granted the State's motion for summary judgment. The court had before it undisputed evidence that it was the State's normal practice to cease all litter barrel pick-up at roadside turnouts around October 1 and that pick-ups at the Robe River turnout had been discontinued around October 1, 1975, in accordance with that practice. The court reasoned that the State's decision regarding maintenance of highway turnout areas was a discretionary function for which the State was immune from suit under AS 09.50.250(1). 4 Following denial of their motion for reconsideration, the Carlsons filed this appeal.
The first issue that we address is whether, on the undisputed facts of this case, 5 the State was entitled to summary judgment as a matter of law. Rule 56(c), Alaska R.Civ.P.; Moore v. State, 553 P.2d 8, 15 (Alaska 1976).
The evidence which was before the trial court pertaining to the State's decision not to pick up trash at the Robe River turnout established the following facts: The State had entered into an agreement with the City of Valdez under which the City agreed to service the litter barrels at five locations, including the Robe River turnout. For this service the State agreed to pay the City one hundred fifty dollars per month for two pick-ups per week at each location. This agreement, however, terminated October 1, 1975, apparently in accordance with the State's normal practice. The State's responses to interrogatories submitted by the Carlsons provided the following information:
1. Was the State of Alaska, or any departmental subdivision thereof, responsible for garbage pick up at the Robe River turnout, approximately Mile 2 of the Richardson Highway, on or about the 22nd of October, 1975?
ANSWER: As far as can be determined, garbage pick-up at Mile 2 of the Richardson Highway was disbanded around October 1, 1975, and the only State agency responsible for garbage pick-up at Robe River turnout after this time would be the Department of Highways. It is normal practice to cease all litter barrel pick-up at roadside turn-offs around October 1 of each year. No other State agency is responsible after that date as far as we can determine.
8. Does the State of Alaska have any Standard Operating Procedures relating to the removal of refuse, or to the State's obligations or standard procedures relating to the maintenance of roadside areas where garbage customarily accumulates?
ANSWER: Not to our knowledge.
Despite the "normal practice" of not picking up turnout trash after October 1, the State did pick up the trash at the Robe River turnout two days after Julie Carlson was attacked by the bear.
The standards for applying the discretionary act exception of the Alaska Tort Claims Act 6 have been extensively discussed in three cases: Jennings v. State, 566 P.2d 1304 (Alaska 1977); State v. I'Anson, 529 P.2d 188 (Alaska 1974); State v. Abbott, 498 P.2d 712 (Alaska 1972). In those cases we adopted and reaffirmed the planning-operational test, under which decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational in nature are not considered to be discretionary acts and therefore are not immune from liability. See, e. g., State v. I'Anson, 529 P.2d at 193.
The distinction between planning decisions and operational decisions does not depend merely on Who made the decision. Rather the distinction is based on the Type of decision that is being made, examined " within an analytical framework which is sensitive to the policies underlying the discretionary function or duty exception." Id. The reason for preserving sovereign immunity for certain acts of the State is the necessity for judicial abstention in certain policy-making areas that have been committed to other branches of government. Id. In I'Anson, for example, we held that the State's failure to properly mark and stripe a portion of a highway at a campground entrance did Not come within the discretionary act exception because "functions of this nature do not involve broad basic policy decisions which come within the 'planning' category of decisions which are expressly entrusted to a coordinate branch of government." Id. at 193-94. Similarly, in Abbott we held that the State's failure to maintain a highway adequately in the winter was Not within the exception because decisions on how to maintain a highway "simply do not rise to the level of governmental policy decisions calling for judicial restraint." 498 P.2d at 722 (footnote omitted). We recognized that the initial decision whether to maintain highways in the winter at all is a policy determination but held that the subsequent decisions on how that policy was to be carried out were Operational decisions, aimed at implementing the Policy decision. Id.
We believe that the reasoning in Abbott is controlling here. The State's decision on the broad question of whether to maintain highway turnouts in the winter at all is indeed a policy determination that cannot give rise to tort liability. However, the decisions made pursuant to that policy, on how to implement it that is, decisions on how to Cease maintenance are operational decisions. As to these the State is under a duty to act with reasonable care. Thus, for example, a decision not to remove the litter barrels from the turnout after October 1 when trash pick-up was discontinued was an operational decision, not a policy decision. If the State negligently implemented the decision to cease trash pick-up at the Robe River turnout, the discretionary act exception to the waiver of sovereign immunity does not shield the State from liability. We therefore reverse the decision of the superior court.
Although we have determined that the decision of the superior court was incorrect as a matter of law, we may nevertheless uphold that decision if there is any other ground which, as a matter of law, would support the result reached by the superior court. Stordahl v. Government Employees Insurance Co., 564 P.2d 63, 67 n.16 (Alaska 1977). We therefore must consider the other possible ground for summary judgment which is presented by the record and determine whether there is any basis for affirming the judgment. See Moore v. State, 553 P.2d 8, 21 (Alaska 1976); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).
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