Kinegak v. State, Dept. of Corrections, No. S-11315.

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Matthews
• Citation: 129 P.3d 887
• Decision Date: 17 February 2006
• Docket Number: No. S-11315.
• Parties: Lloyd KINEGAK, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee.

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129 P.3d 887 Lloyd KINEGAK, Appellant,
v.
STATE of Alaska, DEPARTMENT OF CORRECTIONS, Appellee. No. S-11315. Supreme Court of Alaska. February 17, 2006.

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.

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Because of an oversight the Department of Corrections did not realize that Lloyd Kinegak's 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

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his sentence with due care, a duty he said existed independently of the false imprisonment tort. Converting DOC's motion to dismiss into a motion for summary judgment, the superior court rejected Kinegak's 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 plaintiff's 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 Kinegak's loss of liberty. According to the complaint, this injury was

caused by the negligence of the defendant, including ... failing to correctly compute Lloyd Kinegak's 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 plaintiff's 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 DOC's 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 injury's causal chain. Kinegak's damages do not spring from DOC's 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 state's 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

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the state has.³ The question presented is whether Kinegak's negligence claim "arises out of ... false imprisonment" within the meaning of AS 09.50.250(3). In answering this question, we will construe the state's immunity narrowly, because "liability is the rule, immunity the exception" in claims against the state.⁴

Kinegak's main argument is that his complaint should be reinstated under Zerbe v. State.⁵ Zerbe's 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 Zerbe's 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 Zerbe's 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 Zerbe's 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 Zerbe's injuries."⁸ The decision concluded with a broad statement about the state's 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 Zerbe's 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

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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 government's 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 government's 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 Zerbe's injuries."¹⁸ On this basis, the court in Zerbe rejected the state's 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...