Notice: This opinion is subject to correction before publication in the PACIFIC 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.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JON GREGORY LANE, 

Appellant, 

v. 

CITY & BOROUGH OF 

JUNEAU, 

Appellee. 

) 

) Supreme Court No. S-16102 

Superior Court No. 1JU-12-00403 CI 

O P I N I O N 

No. 7238 – April 27, 2018 

) 

) 

) 

) 

) 

) 

) 

) 

) 

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

Judicial District, Juneau, Philip M. Pallenberg, Judge.
 

Appearances: Jeffrey J. Barber, Barber & Associates, LLC,
 

Anchorage, for Appellant. Michael L. Lessmeier, Lessmeier
 

& Winters, LLC, Juneau, for Appellee.
 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
 

and Carney, Justices.
 

MAASSEN, Justice.
 

STOWERS, Chief Justice, dissenting in part.
 

I. INTRODUCTION 

A municipality kept a campground open through the winter to 

accommodate the local homeless population. A campground resident was shot and 

severely injured. He sued the municipality for damages, arguing primarily that the 

municipality did not do enough to prevent alcohol-related violence at the campground. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

He also argued that the campground’s caretaker performed his duties negligently, that 

this negligence precipitated the shooting, and that the municipality was vicariously liable 

for the caretaker’s actions. 

The superior court granted summary judgment for the municipality on all 

these claims. The court concluded that the municipality could not, under the doctrine of 

discretionary function immunity, be liable for any decision requiring “deliberation” and 

“judgment.” It also concluded that the municipality was not vicariously liable for the 

caretaker’s alleged negligence because his challenged actions were outside the scope of 

his employment. 

The shooting victim appeals. We conclude that the application of 

discretionary function immunity to bar some of his claims was error, as they related to 

“operational” rather than “planning” decisions. We also conclude that genuine issues of 

material fact precluded summary judgment on the shooting victim’s claims for negligent 

supervision and vicarious liability. We therefore affirm the superior court’s judgment 

in part, reverse it in part, and remand the case for further proceedings. 

II. FACTS AND PROCEEDINGS 

A. Facts 

The City and Borough of Juneau (the City) maintained and operated Thane 

Campground, which in the summer was home to seasonal workers in the fishing and 

tourism industries. The City usually closed the campground for the winter, but in the fall 

of 2009 the City decided to keep it open to accommodate the local homeless population. 

According to Heather Marlow, the City official then in charge of the campground, the 

winter residents included alcoholics, the “chronically unemployed,” and “people [who 

-2- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

were not welcome] in homeless shelters” because of “previous incidents or violence.” 

Marlow typically hired a caretaker to stay at the campground through the 

summer season. The caretaker’s duties included keeping records, collecting rental fees, 

performing routine maintenance, and “interact[ing]” with campers. The caretaker was 

supposed to discourage noisy and disruptive behavior, but this duty stopped short of 

enforcing City ordinances or campground rules. The caretaker had no law-enforcement 

authority, and in the event of violence, “criminal activity,” or other “unreasonable 

behavior” he was supposed to call the police rather than intervene. The caretaker could 

and occasionally did ask troublesome campers to leave the campground, but he could not 

enforce these requests without appealing to City authorities or calling the police. 

Marlow hired Gordon Valle to serve as caretaker beginning in the summer 

of 2007. When the City decided in the fall of 2009 to keep the campground open, Valle 

agreed to stay on through the winter. Marlow had given him specific instructions 

regarding the consumption of alcohol at the campground. Although the campground 

rules expressly prohibited alcohol, Marlow testified it was “an understood premise” that 

Valle could drink in the privacy of his tent and should “turn a blind eye” to “minor” 

drinking by other campers as long as they did not “caus[e] a problem for others.” 

Jon Lane arrived at the campground in February 2010. On the evening of 

March 30, Lane and several other campers began drinking beer. Valle, believing he was 

“off the clock,” joined the group and contributed money to replenish the beer supply. 

Valle and Lane both drank until they were heavily intoxicated; Valle stated that 

“alcohol . . . took [his] judgment away.” At some point someone noticed that Valle had 

two pistols in his backpack. Valle testified that “[e]verybody wanted to look at” the 

guns, so he “passed them around.” According to Lane, Valle and a camper named Chris 

Barrios took turns shooting (though Valle testified he could not remember whether he 

-3- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

fired a gun that night). Lane testified that Valle was “shooting up in the air and carrying 

on.” 

For reasons not clear from the record, an argument erupted between Lane 

and Barrios, who pointed one of Valle’s pistols at Lane’s head. Valle begged Barrios to 

“put the dang [gun] down” and said, “You’re going to get me in so much trouble.” But 

Barrios told him to “go while you can,” and Valle ran away. Barrios then shot Lane in 

the face. Lane was seriously injured but survived. 

B. Proceedings 

Lane sued the City for damages under vaguely articulated theories of 

negligence and vicarious liability.1 He alleged, among other things, that the City created 

an unreasonable and foreseeable risk of violence at the campground and then failed to 

warn him of the risk or otherwise protect him from it. He alleged that the City was 

negligent in hiring and supervising Valle. He also alleged that Valle himself acted 

negligently or recklessly, and that the City was vicariously liable for Valle’s conduct. 

The City moved for summary judgment. It argued that it was immune from 

liability under the discretionary function doctrine because its decisions to keep the 

campground open for the winter and to hire a particular individual as caretaker were 

“discretionary” actions involving “judgment” and “deliberation.” The City argued in the 

alternative that it could not be held liable for the consequences of Barrios’s intentional 

criminal act, and that Lane could not maintain a premises liability (or “failure to warn”) 

1 Lane’s complaint named four defendants: the City, Valle, the owner of the 

land on which the campground was located, and the landowner’s agent. Claims against 

the latter two defendants were dismissed by stipulation. The City brought a third-party 

claim against Barrios, but neither he nor Valle appeared, and the superior court entered 

default judgments against them both. Only Lane’s claims against the City remained in 

contention on summary judgment. 

-4- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

claim because he was “solely responsible for his own safety.” Finally, the City argued 

that Valle was an independent contractor rather than a City employee, and that the City 

could not be liable for his actions on the evening of the shooting because they were 

outside the scope of his contractual duties. Lane argued in opposition that discretionary 

function immunity did not apply to “operational” conduct like Marlow’s supervision of 

Valle, that Valle was a City employee, and that the premises liability claims had merit 

because alcohol use at the campground created a foreseeable risk of violence. 

The superior court agreed with the City and granted summary judgment on 

all of Lane’s claims. Lane appeals, making two principal arguments: (1) that the 

superior court construed the City’s immunity under AS 09.65.070(d)(2) too broadly; and 

(2) that the court erred when it concluded that Valle was not acting within the scope of 

his employment at the time of the shooting. 

III. STANDARD OF REVIEW 

“We review grants of summary judgment de novo.”2 The party seeking 

summary judgment bears the initial burden of proving that there are no genuine issues 

of material fact and that it is entitled to judgment as a matter of law.3 “Once the moving 

party has made that showing, the burden shifts to the non-moving party ‘to set forth 

specific facts showing that he could produce evidence reasonably tending to dispute or 

contradict the movant’s evidence and thus demonstrate that a material issue of fact 

2 Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014) 

(citing Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013)). 

3 Id. at 517 (quoting Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 

760 n.25 (Alaska 2008)). 

-5- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

exists.’ ”4 Alaska has a “lenient standard for withstanding summary judgment,”5 and we 

will affirm a grant of summary judgment only when “no reasonable person could discern 

a genuine factual dispute on a material issue.”6 

IV.	 DISCUSSION 

A.	 “Discretionary Function” Municipal Immunity Is Provided By 

AS 09.65.070. 

1.	 The City enjoys immunity under AS 09.65.070(d)(2) for 

“planning” decisions; it does not enjoy immunity for 

“operational” acts. 

Alaska Statute 09.65.070(d)(2) provides that “[a]n action for damages may 

not be brought against a municipality or any of its . . . employees if the claim . . . is based 

upon the exercise or performance” of “a discretionary function or duty.” The superior 

court dismissed several of Lane’s claims against the City because it concluded that this 

“discretionary function” immunity extends to any action requiring municipal employees 

to exercise “personal deliberation” and “judgment,” relying on Pauley v. Anchorage 

School District. 

7 

However, a municipality’s immunity under AS09.65.070(d)(2)isdifferent 

from, and narrower than, a municipal employee’s immunity under the same statute and 

4 Id. (quoting State, Dep’t of Highways v. Green, 586 P.2d 595, 606 n.32 

(Alaska 1978)). 

5 Id. at 520 (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)). 

6 Id. (citing Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 

1990); Semlek v. Nat’l Bank of Alaska, 458 P.2d 1003, 1007 (Alaska 1969); Isler v. 

Jensen, 382 P.2d 901, 902 (Alaska 1963)). 

7 3l P.3d 1284, 1285 (Alaska 2001). 

-6-	 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in the same circumstances.8 “Discretionary” has a different meaning in the two different 

contexts. While municipal employees enjoy personal or “official” immunity for any 

action involving “deliberation” and “judgment,”9 municipalities themselves enjoy 

immunity only for “planning” decisions; they remain potentially liable for “operational” 

decisions, that is, those which do not involve “policy considerations” and which 

comprise the “day-by-day operation[] of the [municipal] government.”10 Because some 

of our past decisions do not clearly distinguish between these two different yet closely 

related forms of discretionary function immunity, we take this opportunity to clarify the 

scope of municipal immunity under AS 09.65.070(d)(2). We begin with the history of 

the statute. 

The Territory of Alaska had a statute waiving municipal immunity that 

continued after statehood in amended form. Without qualification or exception, the 

statute recognized tort claims “against any incorporated town . . . in its corporate 

character.”11 We interpreted this statutory waiver broadly, holding, for instance, that 

municipalities could be held liable for the negligence of their firefighters.12 And we drew 

8 Compare Gates v. City of Tenakee Springs, 822 P.2d 455, 459 (Alaska 

1991) (discussing municipality’s liability), with Samaniego v. City of Kodiak, 2 P.3d 78, 

83 & n.11 (Alaska 2000) (discussing municipal employee’s liability). 

9 Samaniego, 2 P.3d at 83. 

10 State v. Abbott, 498 P.2d 712, 720 (Alaska 1972) (quoting Swanson v. 

United States, 229 F. Supp. 217, 220 (N.D. Cal. 1964)); Urethane Specialities, Inc. v. 

City of Valdez, 620 P.2d 683, 687-88 (Alaska 1980). 

11 City of Fairbanks v. Schaible, 375 P.2d 201, 207 (Alaska 1962) (citation 

omitted). 

12 Id. at 208. 

-7- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

no distinction between “governmental” or “proprietary” functions.13 Put simply, Alaska 

municipalities “did not enjoy any immunity from tort liability” during this time.14 

This law remained in effect until 1977, when the legislature, responding to 

concerns that municipalities’ ability to govern was hampered by threats of tort liability, 

partiallyrestored municipal immunity.15 The1977 enactmentsincludedthelanguagenow 

codified at AS 09.65.070(d)(2), granting immunity for “discretionary” functions.16 The 

current municipalimmunitystatutecloselyresembles theAlaskaTort Claims Act,17 which 

protects the State from certain types of damages claims. Both statutes grant immunity for 

“discretionary” governmental functions; a difference is that the Tort Claims Act 

immunizes only the governmental entity (the State), while the municipal statute includes 

within its scope the “agents, officers, or employees” of a municipality.18 For the State, 

13 Id. 

14 Wilson v. Municipality of Anchorage, 669 P.2d 569, 571 (Alaska 1983). 

15 See id. at 571 n.4 (“AS 09.65.070 was . . . amended to confer 

immunity . . . for discretionary functions.” (citing ch. 37, § 3, SLA 1977, codified as 

amended at AS 09.65.070(d)(2))); see also J &L Diversified Enters., Inc. v. Municipality 

of Anchorage, 736 P.2d 349, 352 (Alaska 1987) (“The statute was part of an enactment 

expanding municipal immunity in 1977 in response to several decisions of this court 

holding cities liable in hotel fires based on their fire inspection programs.”). 

16 Wilson, 669 P.2d at 571 n.4. 

17 See AS 09.50.250(1). 

18 Compare AS 09.50.250(1) (“A person . . . may bring an action against the 

state . . . . However, an action may not be brought if the claim . . . is an action for tort and 

is based upon . . . the exercise or performance [of] . . . 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.”), with AS 09.65.070(d)(2) (“An action for damages may not be 

(continued...) 

-8- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

official immunity for individuals came by way of the courts’ recognition of the doctrine 

as an addition to the statutory protection for the governmental entity,19 whereas for 

municipalities, bothimmunity for theentity and immunity for theindividual areaddressed 

expressly by the immunity statute. 

Under the Tort Claims Act, the State’s immunity does not extend to all 

discretionary actions, at least as the term “discretionary” is commonly defined.20 In State 

v. Abbott we observed that the analogous discretionary function exception to the Federal 

Tort Claims Act had “been read so broadly on occasion . . . as to almost reinstate 

complete immunity.”21 We instead favored how the California Supreme Court, among 

others, had explained the exception: specifically that because “almost any act, even 

driving anail, involves some discretion,”weshould reject “a simply semantic inquiry into 

the meaning” of the word “discretionary” and instead focus “on the policy behind the 

discretionary immunity doctrine for guidance in determining whether a given act was 

18 (...continued) 

brought against a municipality or any of its agents, offices, or employees if the claim . . . 

is based upon the exercise or performance [of] . . . a discretionary function or duty by a 

municipality or its agents, officers, or employees, whether or not the discretion involved 

is abused.”). 

19 See Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702 (Alaska 1962) 

(applying “the well recognized rule that affords [immunity fromcivil liability]to a public 

officer, acting within the scope of his official duties, for damages caused by a mistake 

by him in the exercise of judgment or discretion, or because of an erroneous 

interpretation and application of the law”). 

20 State v. Abbott, 498 P.2d 712, 720-22 (Alaska 1972). 

21 Id. at 717 (citing Dalehite v. United States, 346 U.S. 15 (1953)). 

-9- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

discretionary or ministerial.”22 We approved of Justice Jackson’s dissenting view — in 

a case involving the Federal Tort Claims Act — that “there is no good reason to immunize 

the Government or its officers from responsibility for their acts, if done without 

appropriate care for the safety of others.”23 Balancing the policy goals of the Tort Claims 

Act against our concern that a literal interpretation would excuse any form of 

governmental carelessness, we concluded that the State’s planning functions enjoy 

immunity under the Act while its operational functions do not.24 And because the 

municipal tort claims statute, AS 09.65.070(d)(2), is analogous to the Tort Claims Act at 

AS 09.50.250(1), we have concluded that the distinction between planning and 

operational functions applies in the municipal context as well.25 

We have explained that planning decisions generally involve “the 

formulation of basic policy,”26 while operational decisions either leave “no room for 

discretion or involve only discretion free from policy considerations.”27 This test 

admittedly requires “delicate judgment” to apply.28 There is often no bright-line 

22 Id. at 720 (citing Johnson v. State, 447 P.2d 352, 360 (Cal. 1968)). 

23 Id. at 718 (quoting Dalehite, 346 U.S. at 60 (Jackson, J., dissenting)). 

24 Id. at 721. 

25 Urethane Specialties, Inc. v. City of Valdez, 620 P.2d 683, 687-89 (Alaska 

1980). 

26 R.E. v. State, 878 P.2d 1341, 1349 (Alaska 1994) (quoting Indus. Indem. 

Co. v. State, 669 P.2d 561, 563 (Alaska 1983)). 

27 Id. (citation omitted). 

28 Abbott, 498 P.2d at 721 (citing Johnson v. State, 447 P.2d 352, 360 (Cal. 

1968)). 

-10- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

distinctionbetween “planning”and“operation.”29 Courtsmust thereforeinquirecarefully 

into “the considerations that enter into” a government decision, and “appreciat[e] . . . the 

limitations on [a] court’s ability to reexamine” executive action.30 But while 

policymaking is an immune governmental function, the implementation or execution of 

policy is not; the government remains potentially liable for mistakes in its “normal dayby-day operations.”31 For example, “[o]nce the basic decision to maintain [a] highway 

in a safe condition throughout the winter is reached, the [S]tate” does not have “discretion 

to do so negligently.”32 

Municipal employees enjoy a different form of personal immunity under 

AS 09.65.070(d)(2). We have observed that the statute, in extending immunity to agents, 

officers, or employees, establishes “a type of official immunity.”33 And this official 

immunity is distinct fromthe sovereign immunity enjoyed by government entities.34 Both 

forms of immunity employ the term “discretionary function,” but “discretionary” carries 

29 See id. (“In drawing the line between the immune ‘discretionary’ decision 

and the unprotected ministerial act we recognize both the difficulty and the limited 

function of such distinction.”). 

30 Id. (quoting Johnson, 447 P.2d at 360). 

31 Id. at 720 (quoting Swanson v. United States, 229 F. Supp. 217, 220 (N.D. 

Cal. 1964)). 

32 Id. at 722. 

33 Pauleyv. AnchorageSch. Dist., 31 P.3d 1284, 1285 (Alaska2001); seealso 

Samaniego v. City of Kodiak, 2 P.3d 78, 83 (Alaska 2000). 

34 See Aspen Expl. Corp. v. Sheffield, 739 P.2d 150, 155 (Alaska 1987) 

(discussing the differences between sovereign immunity and official immunity). 

-11- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a different meaning in the two different contexts.35 For purposes of official immunity, we 

have defined “discretionary acts” as those requiring personal deliberation and judgment, 

and we have contrasted these with “ministerial acts,” which “amount ‘only to an 

obedience of orders, or the performance of a duty in which the officer is left with no 

choice of his own.’ ”36 Municipal employees enjoy qualified immunity for discretionary 

actsbutnotfor ministerial acts.37 And becausean individual employee’s officialimmunity 

extends to all acts requiring personal deliberation and judgment, official immunity covers 

a greater range of actions than the discretionary function immunity of government 

entities; many acts are not planning or policy decisions and yet require personal 

deliberation and judgment on the part of the individual employee.38 

The appropriate immunity analysis under AS 09.65.070(d)(2) therefore 

depends on whether the plaintiff brings a claim against a municipality or against its agent 

or employee. Either claim is governed by the same words in the same statute, but for the 

claim against the municipality we ask whether the challenged action carried out a 

35 See id. 

36 State v. Haley, 687 P.2d 305, 316 (Alaska 1984) (quoting W. PROSSER, 

HANDBOOK OF THE LAW OF TORTS § 132 (4th ed. 1971)). 

37 See, e.g., Samaniego, 2 P.3d at 83. 

38 Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281, 285 n.2 (Alaska 

1984) (Rabinowitz, J., concurring) (observing that “common-law individual immunity 

should sometimes be broader” than “the State’s ‘discretionary function’ immunity” 

(citing Owen v. City of Independence, 445 U.S. 622 (1980))). 

-12- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

planning or operational decision,39 whereas for the claim against the municipal employee 

we ask whether the decision in question involved personal deliberation and judgment.40 

The difference between sovereign immunity and official immunity “reflects 

the differing policy considerations which underlie the two forms of immunity.”41 

Discretionary function immunity for the State and municipalities serves three main policy 

goals: (1) respecting the separation of powers by limiting judicial oversight of coequal 

branches of government; (2) sparing courts the burden of investigating and evaluating the 

wisdom of executive or legislative decisions; and (3) protecting public resources fromthe 

demands of unlimited government liability.42 We have adopted the view, however, that 

these objectives do not justify absolute immunity, and we have generally adhered to the 

“basic policy” that “when there is negligence,” liability should be the “rule” and 

“immunity . . . the exception.”43 

39 See, e.g., Adams v. City of Tenakee Springs, 963 P.2d 1047, 1050 & n.3 

(Alaska 1998); Gates v. City of Tenakee Springs, 822 P.2d 455, 459 (Alaska 1991); 

Urethane Specialities v. City of Valdez, 620 P.2d 683, 688 (Alaska 1980). 

40 See, e.g., Samaniego, 2 P.2d at 83; see also Aspen, 739 P.2d at 155; Haley, 

687 P.3d at 316. 

41 Aspen, 739 P.2d at 155. 

42 State v. Abbott, 498 P.2d 712, 721-22 (Alaska 1972) (citing Osborne M. 

Reynolds, Jr., The Discretionary Function Exception of the Federal Tort Claims Act, 57 

GEO. L.J. 81, 121-23, 128-31 (1968)). 

43 Id. at 720 (quoting Muskopf v.Corning Hosp. Dist., 359 P.2d 457, 462 (Cal. 

1961)). 

-13- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Official immunity responds to different policy concerns and protects 

different actors and interests.44 Unlike sovereign discretionary function immunity, which 

insulates the policymaking functions of government, official discretionary function 

immunity protects individual government agents from the deterrent effects of personal 

liability.45 We accept the traditional justification for official immunity, which 

acknowledges that the threat of individual liability, along with the attendant burdens of 

litigation in an individual capacity, tends to “dampen the ardor of all but the most 

resolute, or the most irresponsible, in the unflinching discharge of their duties.”46 

But government employees are not completely insulated from the 

consequences of their actions. Official immunity in Alaska is qualified, not absolute; it 

applies only “when discretionary acts within the scope of the official’s authority are done 

in good faith and are not malicious or corrupt.”47 And we have not extended the personal 

immunity of government employees to automatically immunize their employers, having 

rejected the argument that the individual employee will be unacceptably restrained by the 

prospect of potential liability on the part of the employer.48 We have instead adopted the 

44 See Aspen, 739 P.2d at 155. 

45 Compare id. at 157-58 (discussing the history and purpose of official 

discretionary function immunity), with Abbott, 498 P.2d at 717-22 (discussing the 

purpose of sovereign discretionary function immunity). 

46 Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). 

47 Aspen, 739 P.2d at 158 (citing Trimble v. City and Cty. of Denver, 697 P.2d 

716, 729 (Colo. 1985)). 

48 See Earth Movers of Fairbanks, Inc. v. State, 691 P.2d 281, 282-84 (Alaska 

1984) (analyzing separately the immunity of the State and the immunity of an individual 

State Trooper); State v. Stanley, 506 P.2d 1284, 1291-92 (Alaska 1973) (analyzing 

(continued...) 

-14- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

view of the California Supreme Court that if “a deterrent effect takes hold” because of a 

government entity’s potential liability, “it may be wholesome,” because “the potential 

liability of a governmental entity, to the extent that it affects primary conduct at all, 

will . . . influence public employees” by “promot[ing] careful work.”49 

Some other jurisdictions follow a different approach, extending the 

government employee’sofficial immunity vicariouslyto thegovernmentemployer.50 But 

we have held that what “constitutes a discretionary function for the purposes of official 

immunity” is not the same as “what constitutes a discretionary function for the purposes 

of sovereign immunity.”51 And as discussed above, sovereign immunity and official 

immunity serve different interests and promote different policy objectives; the difference 

48 (...continued) 

separately the immunity of the State and the immunity of individual State employees); 

Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702-03 (Alaska 1962) (holding that 

individual government defendants enjoyed official immunity but allowing plaintiffs to 

recover damages from the State). 

49 Johnson v. State, 447 P.2d 352, 359-60 (Cal. 1968); see Abbott, 489 P.2d 

at 721 (recognizing Johnson as “a well-reasoned approach to the problem” of 

distinguishing between acts that are immune and those that are not). 

50 See, e.g., Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 

651, 663-64 (Minn. 2004) (“Generally, if a public official is found to be immune from 

suit on a particular issue, his or her government employer will be vicariously immune 

from a suit arising from the employee’s conduct.”); Everitt v. Gen. Elec. Co., 932 A.2d 

831, 847 (N.H. 2007) (“Official immunity, when available to individual public officials, 

generally may be vicariously extended to the government entity employing the 

individual, but it ‘is not an automatic grant.’ ” (quoting Sletten v. Ramsey Cty., 

675 N.W.2d 291, 300 (Minn. 2004))). 

51 Aspen, 739 P.2d at 155. 

-15- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

between the two forms of immunity “is more than mere semantics.”52 We therefore 

decline to follow these other jurisdictions, and we reiterate here that a municipality does 

not automatically share the protection of its employees’ personal immunity. 

Our cases have not always clearly distinguished between the two forms of 

discretionary function immunity. In at least two cases cited by the superior court, we 

analyzed claims against government entities using language appropriate to official rather 

than sovereign immunity, asking whether the actions in question involved “deliberation” 

and “judgment” and concluding that, because they did, the sovereign itself was immune.53 

Reframing the analysis is unlikely to have changed the results in those two cases, but we 

disavow their implication that when individual municipal employees act with discretion, 

the municipality is vicariously immune. 

Applying this discussion to this case, we reject the City’s argument that the 

challenged actions it took through Marlow, its employee, are immune under 

AS 09.65.070(d)(2) because she acted with “deliberation” and “judgment.” Official 

immunity could protect her if she were an individual defendant. But Lane did not sue 

Marlow; he sued the City. A claim against a municipality or the State raises an issue of 

sovereign immunity, and the government defendant is immune only if the claim 

52 Id. 

53 Pauley v. Anchorage Sch. Dist., 31 P.3d 1284, 1285-86 (Alaska 2001) 

(concluding that because a school principal, when deciding to release a child to a noncustodial parent, “acted with deliberation and made a considered judgment, . . . both [the 

principal] and the . . . [s]chool [d]istrict were protected by qualified immunity”); Mills 

v. Hankla, 297 P.3d 158, 173 (Alaska 2013) (concluding that because a city “act[ed] with 

‘deliberation, decision and judgment,’ ” its hiring decision “f[ell] within the protection 

of discretionary function official immunity” (quoting Pauley, 31 P.3d at 1285)). 

-16- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

challenges a “planning” decision.54 Thus, the superior court should have considered 

whether the actions complained of — Marlow’s allegedly inconsistent instructions 

regarding alcohol use and her alleged “failure to properly supervise” Valle — were 

“planning” or “operational,” not whether they involved Marlow’s “deliberation” and 

“judgment.” We consider this question next. 

2.	 It was error to dismiss Lane’s negligent supervision claim on the 

basis of discretionary function immunity. 

To reiterate, “planning” generally refers to policymaking while 

“operational” generally refers to the implementation of policy or the “day-by-day 

operations of the government.”55 Lane’s claims appear to involve both. According to 

Lane, Marlow gave Valle “mixed messages” about alcohol use at the campground. The 

campground rules strictly prohibited alcohol, but Marlow testified there was a common 

understanding that Valle could drink in the privacy of his tent and should ignore “minor” 

drinking by others as long as it did not bother anyone else. Lane argues that Marlow’s 

instructions misled and confused Valle, and that as a result Valle did not “intervene” to 

“shut down [the] drinking part[y]” at which Lane was shot. Lane argues that Marlow’s 

allegedly negligent supervision of Valle was “an operational failure” for which the City 

is liable. 

Marlow’s decision to allow some limited drinking at the campground 

required her and other City officials to evaluate different policy goals and balance 

competing interests, including the campers’ safety on the one hand and their personal 

54 Urethane Specialities v. City of Valdez, 620 P.2d 683, 688 (Alaska 1980); 

State v. Abbott, 498 P.2d 712, 720-22 (Alaska 1972). 

55 Abbott, 498 P.2d at 720 (quoting Swanson v. United States, 229 F. Supp. 

217, 220 (N.D. Cal. 1964)). 

-17-	 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

autonomy and privacy on the other. The City also had to consider how operating the 

campground through the winter would affect its limited financial resources. Marlow 

testified that the City decided to keep the campground open in fall 2009 after a property 

owner evicted a large number of homeless people who then had “no place to go” because 

the local shelters were full. The City Manager decided that keeping the campground open 

was “the best of the limited alternatives.” 

Once the City made this decision, it was Marlow’s responsibility to 

“manage” the winter campground and its population. The City chose not to provide 

additional services such as security patrols, because “making a meaningful change in the 

services offered would involve considerable expense at a time when the City had many 

other financial needs.” Besides, Marlow testified that the City intended to “provide a 

housing option for people,” not “run[] some sort of detention center.” She therefore 

determined that strict prohibition of alcohol was neither practicable nor desirable, and she 

chose not to enforce the rule prohibiting alcohol consumption against people who weren’t 

“causing any problem.” 

We have observed that “[i]mmunity remains if the injury results from a 

deliberate choice in the formulation of policy.”56 Marlow’s decision concerning alcohol 

use at the campground was the result of deliberation and took into account various 

interests and objectives. We conclude that the decision to allow “minor” alcohol 

consumption so long as it did not “caus[e] . . . problem[s]” was a planning decision for 

which the City is immune. 

But once the City decided to leave the campground open and allow some 

drinking in limited circumstances, it did not have the discretion to carry out these choices 

56 Id. (quoting Joe R. Greenhill & Thomas V. Murto III, Governmental 

Immunity, 49 TEX. L. REV. 462, 472 (1971)). 

-18- 7238 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

negligently.57 Accordingly, we conclude that the City could be liable for Marlow’s 

supervision of Valle, including her allegedly inconsistent instructions regarding alcohol 

use. The routine supervision of personnel generally falls under the heading of the “dayby-day” business of government, for which the City does not enjoy sovereign immunity.58 

And we do not think that allowing Lane’s negligent supervision claim to proceed on the 

merits would frustrate the purposes of sovereign immunity. The claim does not, for 

instance, require a court to second-guess the wisdom of allowing “minor” alcohol 

consumption; it merely asks whether Marlow exercised reasonable care in carrying out 

that policy.59 Such a matter is well within the expertise of Alaska trial courts.60 And our 

decisionherewill not exposemunicipalities to excessiveor unwarranted liability, because 

the City’s discretionary policymaking functions remain insulated from judicial review.61 

WeconcludethatLane’snegligentsupervision claim,allegingthatMarlow’s 

explanation of the campground alcohol policy to Valle was inconsistent and confusing, 

concerns an operational matter rather than a planning decision. We therefore reverse the 

57 Id. at 720-22. 

58 See State v. Stanley, 506 P.2d 1284, 1291 (Alaska 1973) (concluding that 

State’s “failure to exercise proper care,” including the negligence of a supervisor, did 

“not rise to the ‘level of governmental policy decisions’ to which discretionary function 

immunity . . . applies”). 

59 See Abbott, 498 P.2d at 721-22. 

60 See id. 

61 See id. 

-19- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

superior court’s grant of summary judgment on this issue and remand for further 

proceedings.62 

B.	 There Are Genuine Issues Of Fact As To Whether Valle Was Acting 

Within The Scope Of His Employment. 

Lane also argues that the superior court erred in concluding that Valle’s 

actionable conduct — specifically Valle’s “failure” to disperse the “drinking party” at 

which Lane was shot — did not fall within the scope of Valle’s employment with the 

City.63 The superior court concluded that Valle was “simply socializing outside the scope 

of his work responsibilities,” and that he did not intend by his conduct to “promot[e] the 

[City’s] interests.” But Valle’s job duties as caretaker arguably required him to socialize 

with other campground residents. And while we agree that Valle neglected some of his 

work responsibilities on the evening of the shooting, we cannot conclude as a matter of 

law that Valle was acting outside the scope of his employment. 

Before holding an employer legally responsible for an employee’s conduct, 

a court must determine whether the employee’s conduct was “so connected to his 

62 Lane also argues that the City’s “failure to employ security was not . . . 

protected by immunity.” He contends that the City had a “special relationship” with 

campground residents similar to that of a landowner or a common carrier, and that this 

special relationship “creat[ed] a duty to act.” But the City’s choice to forgo additional 

services like private security patrols was fundamentally a matter of resource allocation; 

it was therefore a planning decision for which the City is immune. See Adams v. City of 

Tenakee Springs, 963 P.2d 1047, 1051 (Alaska 1998) (“Decisions about how to allocate 

scarce resources are matters of policy immune from judicial review.”). 

63 Although the parties disputed whether Valle was a City employee or an 

independent contractor, we assume for this analysis that Valle was an employee, as did 

the superior court. See Lockwood v. Geico Gen. Ins. Co., 323 P.3d 691, 696 (Alaska 

2014) (“We review rulings on motions for summary judgment de novo, ‘reading the 

record in the light most favorable to the non-moving party and making all reasonable 

inferences in its favor.’ ” (quoting Lum v. Koles, 314 P.3d 546, 552 (Alaska 2013))). 

-20-	 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

employment as to justify requiring . . . the employer [to] bear [the plaintiff’s] loss.”64 We 

have therefore followed the traditional rule that an employer is liable for the torts of an 

employee only “while the [employee] is acting in the scope of his employment.”65 “[T]he 

scope of employment is a fact specific inquiry for the jury unless the facts are undisputed 

or lend themselves to only one conclusion.”66 

An employee’s conduct does not fall outside the scope of employment 

simply because it is discouraged, or even prohibited.67 We have noted that even crimes 

and intentional torts may be within the scope of employment if they serve the employer’s 

interests, albeit “in a perverted sense.”68 For example, we have held that a union steward 

who incited a violent confrontation with a rival union was “motivated, at least in part,” 

to serve his union’s interests;69 that a therapist’s abusive sexual relationship with a patient 

could be found to be “incidental” to the therapist’s professional duties;70 and that a school 

64 Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 349 (Alaska 1982) 

(quoting Fruit v. Schreiner, 502 P.2d 133, 141 (Alaska 1972)). 

65 Id. (citing Kastner v. Toombs, 611 P.2d 62, 63 (Alaska 1980)). 

66 Ondrusek v. Murphy, 120 P.3d 1053, 1057 (Alaska 2005) (citing Taranto 

v. N. Slope Borough, 909 P.2d 354, 359 (Alaska 1996)). 

67 Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1099 (Alaska 

2002) (“A wrongful act committed by an employee while acting in his employer’s 

business does not take the employee out of the scope of employment, even if the 

employer has expressly forbidden the act.” (quoting Ortiz v. Clinton, 928 P.2d 718, 723 

(Ariz. App.1996))). 

68 Williams, 650 P.2d at 350. 

69 Id. 

70 Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348 (Alaska 1990). 

-21- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

bus driver with “trace amounts of marijuana” in her system acted within the scope of her 

employment because she nonetheless “carried out the very function [she] was hired to 

perform — driving a school bus.”71 In each of these cases we noted the “flexible” and 

fact-specific nature of the scope-of-employment question.72 

Lane alleges that Valle was supposed to “help . . . shut down drinking 

parties,” that he failed to do so on the night of the shooting, and that his failure was 

therefore reasonably incidental to his job responsibilities. Some facts appear to favor his 

position. 

According to the Second Restatement of Agency, an employee acts within 

the scope of employment if the employee (1) performs the kind of work the employee was 

hired to perform, (2) acts within the employer’s “authorized time and space limits,” and 

(3) acts in order to further the employer’s interests.73 Marlow testified that Valle was 

supposed to “interact” with guests and “be available” to them in the evening. Valle also 

did not have established work hours. A “reasonable person could discern a genuine 

71 Laidlaw Transit, Inc., 53 P.3d at 1096, 1099. 

72 Id. at 1098-99 (“This court does not follow a rigid rule for determining 

when tortious conduct occurs within the scope of employment; rather, we apply ‘a 

flexible, multi-factored test.’ ” (quoting Doe, 791 P.2d at 346)); Doe, 791 P.2d at 346 

(“Applicability of respondeat superior will depend primarily on the findings of fact in 

each case.” (quoting Fruit v. Schreiner, 502 P.2d 133, 141 (Alaska 1972))); Williams, 

650 P.2d at 349 (“The determination as to when an employee’s tort will be attributed to 

the employer depends primarily on the facts and circumstances of each case.”). 

73 Williams, 650 P.2d at 349 n.10 (quoting RESTATEMENT (SECOND) OF 

AGENCY § 228(1)-(2) (AM. LAW. INST. 1958)). We have “rejected the Second 

Restatement’s view that each of the [section] 228(1)[] factors must be satisfied 

prerequisite to recovery, and noted instead that the importance of various factors” should 

be weighed by the fact-finder in each case. Doe, 791 P.2d at 347 (emphasis omitted) 

(citing Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764 & n.14 (Alaska 1973)). 

-22- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

factual dispute”74 as to whether by “socializing” with other campground residents in the 

evening Valle was performing the kind of work he was hired to perform and was acting 

within “authorized time and space limits.” 

The superior court concluded, however, that Valle did not act to further the 

City’s interests. The court’s conclusion has significant support in the record. As 

caretaker, Valle was supposed to tell groups of campers drinking in the open to “take it 

elsewhere” or “shut it down.” But rather than doing this with Lane and the others on the 

night ofLane’s injury, Valle joined them. The campground rules prohibited drinking, and 

Marlow told Valle to “turn a blind eye to minor consumption.” But Valle did far more 

than “turn a blind eye,” and Lane’s group apparently consumed more than a “minor” 

amount of alcohol. Valle provided the group with money to buy beer, and he drank so 

much that it “took [his] judgment away.” The campground rules strictly prohibited 

firearms, but Valle nevertheless gave the group of intoxicated campers access to his two 

loaded pistols. 

We cannot, however, conclude as a matter of law that Valle’s conduct was 

not “reasonably incidental” to his employment. Valle was supposed to “be available” to 

campers; he was essentially the City’s regular liaison and representative at the 

campground. He testified that he was “off the clock,” but in fact he had no set work 

hours; he was neither on nor off the clock at any given time. And as Lane points out, 

Valle’s mere presence at the campground may have benefitted the City. Our precedent 

has established that an employee who exercises poor judgment or does his job while 

intoxicated may nevertheless act within the scope of his employment.75 And Valle’s poor 

74 Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). 

75 See, e.g., Laidlaw Transit, Inc., 53 P.3d at 1099. 

-23- 7238 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

judgment in this case does not conclusively demonstrate that his behavior on the night of 

the shooting was not “reasonably incidental” to his work responsibilities. One could 

argue that Valle was doing his job but doing it poorly. 

We therefore conclude that the superior court erred in granting summary 

judgment on Lane’s vicarious liability claim. “[T]he scope of employment is a fact 

specific inquiry for the jury unless the facts are undisputed or lend themselves to only one 

conclusion.”76 Some of the facts in the record support the superior court’s conclusion, but 

others do not. We will affirm a grant of summary judgment only when “no reasonable 

person could discern a genuine factual dispute.”77 Because a genuine factual dispute 

exists here, we reverse the superior court’s grant of summary judgment on Lane’s 

vicarious liability claim and remand for further proceedings.78 

76 Ondrusek v. Murphy, 120 P.3d 1053, 1057 (Alaska 2005) (citing Taranto 

v. N. Slope Borough, 909 P.2d 354, 359 (Alaska 1996)). 

77 Christensen, 335 P.3d at 520 (citing Yurioff v. Am. Honda Motor Co., 803 

P.2d 386, 389 (Alaska 1990); Semlek v. Nat’l Bank of Alaska, 458 P.2d 1003, 1007 

(Alaska 1969); Isler v. Jensen, 382 P.2d 901, 902 (Alaska 1963)). 

78 As an alternative ground for affirmance, the City argues that it cannot be 

held liable for Barrios’s intentional criminal act absent a special relationship between 

itself and Lane, citing authority including Hurn v. Greenway, 293 P.3d 480, 483-84 

(Alaska 2013), for the proposition that “a person generally has no duty to protect others 

from harm by a third party.” But at the very least there is an exception to these general 

rules “where the actor’s own affirmative act has created or exposed the other to a 

recognizable high degree of risk of harm through such misconduct, which a reasonable 

man would take into account.” Id. at 484 (quoting RESTATEMENT (SECOND) OF TORTS 

§ 302B cmt. e (AM. LAW INST. 1965)). An example of such an “affirmative act” is when 

“[t]he actor provides the instrument of the crime to the criminal.” Id. (quoting 

RESTATEMENT (SECOND) OF TORTS § 302B cmt. e.) On the record before us, we are not 

convinced of the absence of a genuine issue of material fact as to whether Valle’s 

(continued...) 

-24- 7238
 
 

 

 

 

 

 

 

 

 

 

V. CONCLUSION 

We REVERSE the superior court’s grant of summary judgment on 

(1) Lane’s claim that Marlow negligently supervised Valle by sending “mixed messages” 

about alcohol; and (2) Lane’s vicarious liability claim against the City based on Valle’s 

conduct. We conclude that both claims raise genuine issues of material fact, and we 

therefore REMAND to the superior court for further proceedings consistent with this 

opinion. We otherwise AFFIRM the judgment of the superior court. 

78 (...continued) 

provision of the pistols exposed other campers “to a recognizable high degree of risk of 

harm.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 302B cmt. e). We also note 

Marlow’s testimony that the campground’s residents included people who had been 

excluded from homeless shelters because of previous incidents of violence. 

-25- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STOWERS, Chief Justice, dissenting in part. 

There is an adage that no good deed goes unpunished. The court’s decision 

holding that there is a genuine issue of material fact whether the City is vicariously liable 

for Valle’s conduct perfectly illustrates this point. The City, in an effort to provide some 

type of winter housing for homeless people in the City, kept open over the winter a 

campground that generallyserved to provideaccommodations for transient workers in the 

summer. The City evidently recognized the need for a point of contact between itself and 

the campground residents and hired a campground caretaker, asking him to interact with 

campground residents as part of his duties. Presumably because the City saw the 

necessity of its caretaker interacting with campground residents and the need for the 

caretaker to be effectively on call all the time, the City did not set explicit work hours for 

the caretaker.1 All of the City’s decisions were reasonable. In fact it is hard to imagine 

a caretaker of any campground who would not be available more or less at all times to 

interact with campground guests or in the event of emergencies. 

Under the court’s decision today, the City is unable to prevail on summary 

judgment on the issue of vicarious liability precisely because it made reasonable choices 

about staffing the campground. The court holds today that the City might be vicariously 

liable for the caretaker’s action because he was expected to “socialize with other 

campground residents,” to “ ‘interact’ with guests and ‘be available’ to them in the 

evening.” Under this rule, no rational policymaker would ever make the decision the City 

made here because there is simply no way to cut off the City’s potential for vicarious 

liability involvingsocial interactionwithoutexpensiveandtime-consuminglitigation that 

takes public resources from other public needs. 

1 Like the court, I assume for purposes of this analysis that the caretaker was 

a City employee and not an independent contractor. 

-26- 7238 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Valle, the campground caretaker here, thinking he was “off the clock,” 

actively participated in a drinking party that was unquestionably a violation of the City’s 

campground rules and, because the drinking “took [his] judgment away,” showed other 

members of the party loaded guns he had brought to the campground, also in violation of 

City campground rules. Another resident, Barrios, used one of these guns to shoot Lane, 

who survived but was injured. I cannot agree that the facts of this case can lead to any 

other conclusion but that Valle’s actions did not further his employer’s interests. In fact 

his actions were detrimental to the City’s interests in providing homeless individuals a 

place to camp legally during the winter. Because I see no material factual dispute on this 

question, I would hold that the City cannot be vicariously liable for Valle’s actions. 

The way the court frames the issue about both Valle’s actions and the City’s 

interests leads to its erroneous analysis. As we said in Williams v. Alyeska Pipeline 

Service Co., when considering an employer’s vicarious liability, the question is whether 

the employee’s “acts were sufficiently associated with the [employer] to justify imposing 

liability on the [employer].”2 While the court emphasizes the benefits to the City of 

Valle’s socializing with campground residents and attempts to characterize the issue as 

whether Valle’s participation in thedrinking partywasmerely“poor judgment”that could 

show only “that Valle was doing his job but doing it poorly,” it neglects to explain how 

allowing his companions, most of whom were drunk, to “pass[] . . . around” loaded guns 

and then “shooting [the guns] up in the air and carrying on” himself could possibly be 

sufficiently associated with his employment to impose liability on the City. Even 

accepting that a campground caretaker is effectively never outside “authorized time and 

2 650 P.2d 343, 349 (Alaska 1982). 

-27- 7238 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

space limits” while at the campground,3 sharing loaded firearms with campground 

residents cannot reasonably be considered conduct Valle was employed to perform.4 Nor 

does the court explain how Valle’s shooting in the air and allowing another resident to 

take turns shooting with himcould ever serve the City’s purpose and not his own personal 

interests.5 

We may have a very liberal standard for surviving summary judgment,6 but 

there must be some point at which common sense comes into play to foreclose finding a 

material issue of fact. Here Valle’s actions went beyond interacting with guests and being 

available to them in the evening. He drank excessively and contributed money so that he 

and other revelers could continue drinking. Valle — at least according to Lane — shot 

the gun into the air himself and allowed Barrios to take turns shooting with him before 

Barrios turned the gun on Lane. These actions, which were crucial links of the causation 

chain in Lane’s injury, can by no stretch of the imagination be considered part of Valle’s 

job, nor can they be said to further the City’s interests. Only by ignoring Valle’s firearms 

misconduct and concentrating on his drinking can the court reach the untenable 

conclusion that a material issue of fact remains about whether the City is vicariously 

3 See id. at 349 n.10 (setting out factors to evaluate employee conduct for 

vicarious liability). 

4 Id. 

5 Id. 

6 See Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 521 (Alaska 

2014) (describing summary judgment standard as “low”). 

-28- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

liable for Valle’s actions. In deciding whether a genuine issue of material fact exists, we 

cannot exclude critical facts to discern a material factual dispute.7 

If the court’s result in this case is compelled by our precedent — and I 

would hold that it is not so compelled — then it may be time to reexamine the rules we 

have established. We have liberally construed the “motivation to serve” test, interpreting 

it to be met by showing that the “tortious conduct arises out of and is reasonably 

incidental to the employee’s legitimate work activities.”8 We elaborated by saying that 

“the act which leads to the tortious behavior cannot be different in kind from acts the 

employee is authorized to performin furtherance of the employer’s enterprise.”9 Thus we 

held that a counselor who, in order to do his job effectively, needed to establish 

“transference” with his patient but then abused the “transference phenomenon” had 

engaged in conduct that met the standard.10 And in the case of a school bus driver who 

negligently drove a school bus after using marijuana, we noted that negligent driving, not 

7 For the same reasons, I disagree with the court’s dismissal of the City’s 

argument that it cannot be held liable for Barrios’s intentional criminal act of shooting 

Lane. Leaving aside the fact that we have never adopted the “general rules” the court 

discusses, see Hurn v. Greenway, 293 P.3d 480, 484 (Alaska 2013) (“Unlike § 315, we 

have never adopted § 302B.”), the question whether “Valle’s provision of the pistols 

exposed other campers ‘to a recognizable high degree of risk of harm’ ” does not resolve 

the question of the City’s liability for the shooting. Even if Valle’s actions did expose 

other campers to a recognizable degree of risk of harm, for the City to be vicariously 

liable, giving others access to loaded firearms must have reasonably been related to 

Valle’s job or the City’s interests. 

8 Doe v. Samaritan Counseling Ctr., 791 P.2d 344, 348 (Alaska 1990). 

9 Id. at 348 n.7. 

10 Id. at 345, 348. 

-29- 7238
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

drug use, was “the conduct giving rise to the punitive damages award.”11 Finally, we held 

that a union was vicariously liable for the actions of its steward who incited the violent 

beating of another union’s member when the steward (1) used his position of authority 

to call a union meeting at a time and place intended to provoke a confrontation, (2) “had 

no personal motive for his activities,” and (3) “was, in a perverted sense, resolving a 

grievance held by some of the union’s members.”12 

Why is it that bringing loaded guns into the campground, showing them to 

fellow inebriates, and shooting them are not “different in kind from acts [Valle was] 

authorized to perform in furtherance of [the City’s] enterprise”?13 Why did Valle not 

have a personal motive for his actions? Or to put it another way, what motivation to serve 

the city prompted Valle’s weapons misconduct?14 While the City may have expected 

Valle to “interact” with guests, the type of interaction that led to this shooting was well 

beyond anything the City might have contemplated. If this conduct can reasonably be 

considered socializing or interacting with campground guests that served the City’s 

purpose, we may need to reconsider our legal test for vicarious liability. And if our 

summary judgment standard is so low as to require a trial on the facts presented here, it 

may also be time to consider whether we have set the “summary judgment survival” bar 

too low. 

11 Laidlaw Transit, Inc. v. Crouse ex rel. Crouse, 53 P.3d 1093, 1098 (Alaska 

2002). 

12 Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 350 (Alaska 1982). 

13 See Doe, 791 P.2d at 348 n.7. 

14 See Veco, Inc. v. Rosebrock, 970 P.2d 906, 924 n.36 (Alaska 1999) 

(modifying Doe to explicitly require some purpose to serve the employer). 

-30- 7238
 
 

 

 

Because I cannot agree that a material issue of fact remains on the question 

of vicarious liability, I respectfully dissent from part IV.B of the court’s opinion. I agree 

with the remainder of the court’s opinion. 

-31- 7238