discretionary function exception in Alaska

1991The Urethane court also cited State v. Abbott, 498 P.2d 712 (Alaska 1972), applying the discretionary function exception to the waiver of state sovereign immunity, in which the court said: Once the basic decision to maintain the highway in a safe condition ... throughout the winter, ... is reached, the state should not be given discretion to do so negligently.

1981However, no action may be brought under this section if the claim (1) is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused . ...” We have addressed the discretionary function exception to governmental tort liability in several cases. 35 Beginning with *64 State v. Abbott, 498 P.2d 712, 717-22 (Alaska 1972), reaffirmed in State v. I’Anson, 529 P.2d 188 , 192 n.12, 193 (Alaska 1974), and in Jennings v. Stat

1998Co. v. State, 669 P.2d 561, 565 (Alaska 1983); see also Sanders, 944 P.2d at 458-59 ("Because the governing regulation provides no standards that a court might use to analyze the ... decision, [that] decision is protected by the discretionary function exception. ...”). 61 .

1994Co. v. State, 669 P.2d 561, 563 (Alaska 1983). 14 Actions that are operational in nature, and therefore not entitled to discretional immunity, are those that involve either no room for discretion or involve only discretion free from policy considerations.

1994See Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982).

1994See Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982).

2003See Sanders, 944 P.2d at 458-59 ("Because the governing regulation provides no standards that a court might use to analyze the non-enforcement decision, the non-enforcement decision is protected by the discretionary function exception in AS 09.50.250(1)."). 63 .

1998Co. v. State, 669 P.2d 561, 565 (Alaska 1983); see also Sanders, 944 P.2d at 458-59 ("Because the governing regulation provides no standards that a court might use to analyze the ... decision, [that] decision is protected by the discretionary function exception. ...”). 61 .

1981However, no action may be brought under this section if the claim (1) is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused . ...” We have addressed the discretionary function exception to governmental tort liability in several cases. 35 Beginning with *64 State v. Abbott, 498 P.2d 712, 717-22 (Alaska 1972), reaffirmed in State v. I’Anson, 529 P.2d 188 , 192 n.12, 193 (Alaska 1974), and in Jennings v. Stat

1981However, no action may be brought under this section if the claim (1) is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused . ...” We have addressed the discretionary function exception to governmental tort liability in several cases. 35 Beginning with *64 State v. Abbott, 498 P.2d 712, 717-22 (Alaska 1972), reaffirmed in State v. I’Anson, 529 P.2d 188 , 192 n.12, 193 (Alaska 1974), and in Jennings v. Stat

1983Confusion of this nature appears to be present in Jennings v. State, 566 P.2d 1304 (Alaska 1977), where we held that the state’s failure to provide a crosswalk several hundred feet from an intersection near which a grade school was located came within the discretionary function exception.

1983Confusion of this nature appears to be present in Jennings v. State, 566 P.2d 1304 (Alaska 1977), where we held that the state's failure to provide a crosswalk several hundred feet from an intersection near which a grade school was located came within the discretionary function exception.

1994See Freeman v. State, 705 P.2d 918, 920 (Alaska 1985) ("Decisions concerning the allocation of available funding are often immune from suit under the discretionary function exception.") The other factors relied on by DFYS are also policy based.

1994See Freeman v. State, 705 P.2d 918, 920 (Alaska 1985) (“Decisions concerning the allocation of available funding are often immune from suit under the discretionary function exception.”) The other factors relied on by DFYS are also policy based.

1981See also Urethane Specialties, Inc. v. City of Valdez, 620 P.2d 683, 688 (Alaska 1980); Carlson v. State, 598 P.2d 969, 973 (Alaska 1979); Wallace v. State, 557 P.2d 1120, 1124 (Alaska 1976); State v. Stanley, 506 P.2d 1284, 1291 (Alaska 1973).

1978This holding is consistent with previous decisions in which we have narrowly construed other exceptions to Alaska’s government claims statute; e. g., State v. Abbott, 498 P.2d 712 (Alaska 1972) (narrowly construing AS 09.-50.250(1), the discretionary state function exception); State v, Stanley, 506 P.2d 1284, 1291 (Alaska 1973) (negligence on the part of government employees “does not rise to the ‘level of governmental policy decisions’ to which the discretionary function immunity from suit applies.”) See also Professor Van Alstyne’s commentary in California Government Tort Liability Supplemen

1981However, no action may be brought under this section if the claim (1) is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused . ...” We have addressed the discretionary function exception to governmental tort liability in several cases. 35 Beginning with *64 State v. Abbott, 498 P.2d 712, 717-22 (Alaska 1972), reaffirmed in State v. I’Anson, 529 P.2d 188 , 192 n.12, 193 (Alaska 1974), and in Jennings v. Stat

1981However, no action may be brought under this section if the claim (1) is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused . ...” We have addressed the discretionary function exception to governmental tort liability in several cases. 35 Beginning with *64 State v. Abbott, 498 P.2d 712, 717-22 (Alaska 1972), reaffirmed in State v. I’Anson, 529 P.2d 188 , 192 n.12, 193 (Alaska 1974), and in Jennings v. Stat

1972In Rogers v. State, 51 Haw. 293 , 459 P.2d 378, 381 (1969), for example, the court held that such matters as the placing of road signs and center line stripes “did not require evaluation of policies but involved implementation of decisions made in everyday operation of governmental affairs” for which liability would attach. 27 Analogously, Professor Reynolds argues that the planning-operational distinction adequately serves what he regards as the main purposes of the discretionary function exception: (1) the need to preserve separation of powers by limiting judicial reexamination of decisions

1972In Rogers v. State, 51 Haw. 293 , 459 P.2d 378, 381 (1969), for example, the court held that such matters as the placing of road signs and center line stripes “did not require evaluation of policies but involved implementation of decisions made in everyday operation of governmental affairs” for which liability would attach. 27 Analogously, Professor Reynolds argues that the planning-operational distinction adequately serves what he regards as the main purposes of the discretionary function exception: (1) the need to preserve separation of powers by limiting judicial reexamination of decisions

1997Id. at 283 .

1997In this ease, if those officials did not take reasonable steps 6 to implement the planning decision in a non-negligent manner, the State may be liable. 7 Contrary to the State’s arguments, our conclusion is not inconsistent with Earth Movers v. State, 691 P.2d 281 (Alaska 1984), or Estate of Arrowwood v. State, 894 P.2d 642 (Alaska 1995).

1994Neakok, 721 P.2d at 1134-35 ; Adams, 555 P.2d at 243-44 . *1349 In our previous decisions construing the discretionary function exception of AS 09.50.250(1), "we have employed a `planning level-operational level' test to distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity." Industrial Indem.

1982Id.; Adams v. State, 555 P.2d 235, 244 (Alaska 1976).

1991Urethane, 620 P.2d at 688 (citing Abbott, 498 P.2d at 722 ).

1981See also Urethane Specialties, Inc. v. City of Valdez, 620 P.2d 683, 688 (Alaska 1980); Carlson v. State, 598 P.2d 969, 973 (Alaska 1979); Wallace v. State, 557 P.2d 1120, 1124 (Alaska 1976); State v. Stanley, 506 P.2d 1284, 1291 (Alaska 1973).

1983Id. at 66 . 1 In Japan Airlines Co., Ltd. v. State, 628 P.2d 934 (Alaska 1981) we held that the alleged failure of the state to build an airport taxiway having a width meeting certain safety standards was not immune.

1983Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982); Japan Air Lines Co. v. State, 628 P.2d 934, 936 (Alaska 1981); State v. I’Anson, 529 P.2d 188, 193-94 (Alaska 1974).

2012It does not exempt agency regulatory action from APA compliance. . 145 P.3d 561, 572-73 (Alaska 2006). .

2003Cf. Angnabooguk, 26 P.3d at 459 ("[Clertain on-the-scene firefighting tactical decisions may be considered discretionary because they entail resource allocation decisions or considered decisions of firefighting policy that are properly vested in the officials in charge."). 64 .

1994Id. at 498-99 (footnote omitted). 7 Morry contends that Owsichek is inapplicable on two grounds.

1994See Johnson v. Alaska Dep’t of Fish & Game, 836 P.2d 896, 904-06 (Alaska 1991). .

1986Cf. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (sentencing is a discretionary judicial function which involves the judicious balancing of the many and ofttimes competing factors encompassed within the constitutional touchstones of reformation and protection of the public). . "[I]t is the nature of the conduct, rather than the status of the actor that gdverns whether the discretionary function exception applies in a given case.” United States v. Varig Airlines, 467 U.S. 797, 813 , 104 S.Ct. 2755, 2765 , 81 L.Ed.2d 660, 674 (1984).

1986Nukapigak's violent acts cannot therefore be viewed as a cause of the injuries independent of the state's negligence. [1] Cf. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (sentencing is a discretionary judicial function which involves the judicious balancing of the many and ofttimes competing factors encompassed within the constitutional touchstones of reformation and protection of the public). [2] "[I]t is the nature of the conduct, rather than the status of the actor that governs whether the discretionary function exception applies in a given case." United States v. Varig Airlines, 46

1986Cf. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (sentencing is a discretionary judicial function which involves the judicious balancing of the many and ofttimes competing factors encompassed within the constitutional touchstones of reformation and protection of the public). . "[I]t is the nature of the conduct, rather than the status of the actor that gdverns whether the discretionary function exception applies in a given case.” United States v. Varig Airlines, 467 U.S. 797, 813 , 104 S.Ct. 2755, 2765 , 81 L.Ed.2d 660, 674 (1984).

1986Cf. State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (sentencing is a discretionary judicial function which involves the judicious balancing of the many and ofttimes competing factors encompassed within the constitutional touchstones of reformation and protection of the public). . "[I]t is the nature of the conduct, rather than the status of the actor that gdverns whether the discretionary function exception applies in a given case.” United States v. Varig Airlines, 467 U.S. 797, 813 , 104 S.Ct. 2755, 2765 , 81 L.Ed.2d 660, 674 (1984).