C.J., Petitioner, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS, Respondent. State of Alaska, Department of Corrections, Petitioner, v. C.J., Respondent.
Nos. S-11298, S-11300
Supreme Court of Alaska
Dec. 15, 2006
151 P.3d 373
LIABILITY WHERE THERE IS NOTICE OF IMMINENT PERIL.
I do not suggest that parole officers should, in all circumstances, be immune from tort liability. If a parole officer has knowledge of a specific threat of imminent harm to a person or class of persons, the parole officer should have a tort duty to take appropriate action. Such a rule would bring the tort duties of parole officers in line with parents and police officers. A parent, for example, owes a duty to restrain a child only when there is reason for the parent to know that the child poses an imminent and foreseeable risk of harm.25 Similarly, police officers owe “a duty of reasonable care ... to respond to threats of imminent, life-threatening, assaultive conduct when given sufficient specific information to respond.”26
For these reasons, I respectfully dissent in part from Justice Fаbe‘s opinion.
Kirsten Tinglum Friedman, Christine S. Schleuss, and Margaret Simonian, Friedman, Rubin & White, Anchorage, for Petitioner/Respondent C.J.
Stephanie Galbraith Moore, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Respondent/Petitioner State of Alaska.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
FABE, Justice.
I. INTRODUCTION
The rape victim of a parolee sued the State for negligent parole supervision. The State sought summary judgment on the grounds that (1) it owes no duty of care in supervising parolees; (2) it is immune from suit; and (3) it is entitled to judgment as a matter of law on the issue of causation. We conclude that the State owes a duty of care to a parolee‘s victim, but vacate the denial of summary judgment and remand to the superior court to address the questions of discretionary function immunity and causation in light of the principles set forth in State of Alaska, Department of Corrections v. Cowles.1
This case also presents the question whether the cap on noneconomic damages in
II. FACTS AND PROCEEDINGS
A. Factual History
In 1987 Luke Carter committed a violent rape. Carter was convicted of sexual assault in the first degree and sentenced to a fifteen-year presumptive term. He was released on mandatory parole on July 29, 1997.
Joseph Murphy, Carter‘s institutional parole officer, met with him before his release from prison to discuss his plans. Carter initially planned to settle near his home village of Noorvik. Carter was informed that he could not be released to the Kotzebue area because his parole conditions required him to live in a place where sex offender treatment was available. Carter chose Anchorage. Carter and Murphy did not develop a detailed release plan; Carter‘s notification of release to supervision did not list an address or employer for Carter in Anchorage.
On July 29, 1997, Carter was released from prison subject to twenty-seven standard and special conditions of mandatory parole. Prior to his release, Carter was told that he was required to report to his field parole officer
Field Parole Officer Linda Heyward was assigned to Carter‘s case and reviewed his field file a few days before his release. On the morning of July 30, Carter reported as required for the intake interview, but Heyward was not present. The office clerk asked Carter to complete a monthly report form and instructed him to return the next day for the interview. On the form, Carter listed no residence: he provided only a Noorvik mailing address and an unidentified Anchorage telephone number. Carter failed to report on July 31. Carter also failed to register as a sex offender within seven days of his release. Heyward took no immediate action to report these violations or pursue revocation.
On August 11 a state trooper contacted Heyward regarding a report that Carter might have stolen a key to a hobby locker. Heyward told the officer that she had not been in contact with Carter for the past several weeks and gave him some Anchorage telephone numbers at which Carter might be reached. The officer was unable to contact Carter and placed a “locate” for Carter on the state police computer system. Also on August 11 Heyward called the phone number listed on Carter‘s form, but Carter was not there. Heyward noted in her log that she would give Carter two weeks to remedy his violations before taking any further action.
Two days later, on August 13, Heyward received Carter‘s complete institutional file. After reviewing it, Heyward copied medical testimony into her log regarding Carter‘s dangerous personality. She attempted to contact Carter‘s cousin again, as well as Carter‘s father, without success. That same day, Heyward completed a рarole violation report which described Carter‘s failure to report and to register as a sex offender and stated her opinion that Carter was a danger to the public and likely to flee. This report led to the immediate issuance of an arrest warrant. Also on August 13 Heyward notified the Kotzebue probation office that Carter might be headed in their direction and promised to fax them a copy of the arrest warrant. Once the arrest warrant was issued, Heyward did not take any further action to locate or arrest Carter.
At approximately 8:30 a.m. on August 27, 1997, Carter attacked C.J. while she was jogging along Anchorage‘s Tony Knowles Coastal Trail.2 Carter grabbed her by the neck and dragged her into the bushes. The court of appeals described the incident in the criminal action:
He said that he had a weapon and would kill her if she screamed. He pushed her sweatshirt and sports bra over her head. He penetrated her vagina with his fingers. He then removed her shorts and underwear, and he performed cunnilingus. He рenetrated her vagina with his penis. These three distinct penetrations led to the three counts of first-degree sexual assault.3
Carter was charged and convicted by a jury of three counts of first-degree sexual assault. At sentencing, Carter‘s attorney argued that even though Carter had been convicted of three sexual assaults he should only be subjected to a single sentence because there “was no break in the event; it was a continuous episode.” The State sought thirty years on each count with five years suspended, imposed consecutively. The judge rejected the defense‘s argument, finding it “significant that this victim was assaulted in different ways.” As a result, Carter received three partially consecutive sentences, totaling forty-five years.4
B. Procedural History
On July 13, 1999, C.J. filed an action against the State for negligence. On February 14, 2000, the State filed a third-party complaint against Carter for equitable apportionment of fault under
On September 15, 2003, the State moved for summary judgment. In its accompanying
On September 30, 2003, C.J. filed a motion asking the court to find that (1) the caps on noneconomic damages in
On November 17, 2003, Superior Court Judge Sharon L. Gleason held oral argument on the motions regarding summary judgment and the damages cap. On November 18, 2003, Judge Gleason denied the State‘s motion for summary judgment. Judge Gleason also issued an order finding that C.J.‘s injuries “shall be treated as a single injury for purposes of On January 27, 2004, we granted both the State‘s pеtition for review of the denial of summary judgment and C.J.‘s petition for review of the superior court‘s ruling on the damages cap. “We review denials of summary judgment motions de novo to determine whether there are genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law, viewing all facts in the light most favorable to the non-movant.”6 Issues relating to a statute‘s constitutionality and interpretation are also legal questions subject to de novo review.7 The State argues that it is entitled to summary judgment because it owed no duty to protect C.J. from Carter. It urges us to overrule our contrary holding in Neakok.8 The State also argues that it is immune from suit under As we discuss in our opinion in Cowles, we decline to overrule our holding in Neakok that the State has a duty to exercise due care in supervising parolees. We also set forth in Cowles the boundaries of discretionаry function immunity as it relates to decisions involving parole supervision. Our discussion in Cowles of when the State is immune from liability for a parole officer‘s failure to seek parole revocation is particularly relevant since C.J. alleges that Heyward should have pursued revocation when Carter failed to report on July 31 and failed to register as a sex offender. As we explained in Cowles, a parole officer‘s decision whether or not to pursue revocation in response to a known parole violation is immune from liability unless DOC policy explicitly requires the officer to seek revocation under these circumstances.10 On remand, the superior court should determine whether each of DOC‘s allegedly negligent decisions is a discretionary function based on the principles The State also argues that it is entitled to summary judgment because no reasonable jury could find that DOC‘s alleged negligence caused Carter‘s assault. Our decision requires the superior court to reexamine whether the State is entitled to discretionary function immunity for some of its allegedly negligent acts. That reexamination may affect the superior court‘s causation analysis, for C.J. may only rely on non-immune acts to establish causation. We decline to decide in the first instance whether the State is entitled to judgment as a matter of law on the issue of causation and remand the case to the superior court for a ruling on this question. C.J. argues that the noneconomic damages cap in We analyze equal protection claims under a “sliding scale approach”13 which “place[s] a greater or lesser burden on the state to justify a classification depending on the importance of the individual right involved.”14 If the right impaired by the challenged legislation is not very important, the State need only show that its objectives are “legitimate” and that the legislation bears a “substantial relationship” to its purpose.15 At the other end of the continuum, legislation that impairs one of the most important individual interests will be upheld only if it furthers the State‘s “compelling interest” and if it is the “least restrictive means” available to achieve the State‘s objective.16 We considered a facial equal protection challenge to the noneconomic damages caps in C.J. urges us to reject the reasoning of the plurality opinion in Evans. She also argues that the particular circumstances of her case enhance the cap‘s unfairness and support a finding that the cap is unconstitutional as applied to her. We adopt the equal protection analysis of the plurality opinion in Evans, and respond to each of C.J.‘s arguments in turn. C.J. first makes the same argument as the Evans dissent that the interest implicated in this case is not merely an economic interest in money damages but the more fundamental right of equal access to the courts.22 But we have consistently held that restrictions on the types or amounts of damages that a plaintiff can pursue in court impair economic interests only and are therefore subject to minimum scrutiny review.23 As we noted in Evans, the right of access to the courts “is impaired only by state action that actually limits or blocks access to the courts,” not by regulations that “simply limit plaintiff‘s recovery in civil court.”24 C.J. also contends that the cap “creates a practical and effective barrier to filing suit” because plaintiffs with little or no economic loss will have insufficient incentive to file suit and will have diffi- culty finding a lawyer to take the case. But in every case where the cap is applied, the plaintiff‘s recovery for noneconomic damages will be at least $400,000 plus Civil Rule 82 attorney‘s fees, guaranteeing sufficient incentive to exercise the right to access the courts.25 C.J. repeats the Evans dissent‘s argument that Alaska‘s sliding-scale approach permits economic interests to qualify for close scrutiny in some circumstances.26 But the cases cited by C.J. and the Evans dissent for the proposition that economic interests can qualify for heightened scrutiny involve the “right to engage in an economic endeavor,” which is a special and quite different kind of economic interest from the one at issue in this case.27 As we explained in Wilkerson v. State, the right to engage in an economic endeavor is important because it involves a source of sustaining income that individuals depend on to supply “the basic necessities of life.”28 In Wilkerson, we explicitly contrasted the important interest in engaging in an economic endeavor with the interest in other payments, such as the permanent fund dividend or a foster parent stipend, that are not “a source of sustaining income” and are therefore mere economic interests entitled to mini- C.J. also contends that the damages cap cannot be sustained even under minimum scrutiny analysis because the State has failed to show the required fit between the cap on damages and the State‘s objective of lowering insurance premiums.31 In making this argument, C.J. does not question whether the damages cap will actually result in lower insurance premiums. Rather, her argument is that it is irrational to single out the most severely injured tort victims to pay for the reduction in premiums. The dissent in Evans made the same argument.32 To begin, we agree that the legislature may not use a suspect or arbitrary method in identifying the group that will bear the brunt of an otherwise legitimate policy.33 But because the damages cap imposes only economic burdens, and allocates these burdens using criteria that are not presumptively suspect, our scrutiny of the underlying rationale is minimal. Minimum scrutiny has traditionally meant two things in assessing the “means” chosen to effectuate the statutory goal. First, although the scheme should be “substantially” related to some legitimate purpose, we have not required “a perfect fit between a legislative classification and the government objective it is intended to further.”34 For example, we have upheld school funding schemes that were not the “most protective of tax equality,” but that were “close enоugh.”35 We have also upheld foster parent application restrictions even though we conceded the restrictions “do[ ] not have to be meaningful in all cases,”36 and have emphasized that policies reviewed under minimum scrutiny are not unconstitutional simply because a litigant is able to propose a regulation that would further the legislative goal in a more rational manner.37 The second principle is that although the rationale underlying the legislation should be logically plausible, there is no requirement that it be proved in court. For example, in considering a challenge to a new limit on prejudgment interest, we upheld the limit because we agreed that a policy of reducing malpractice insurance “can reasonably be thought to be furthered” by the scheme.38 Similarly, we accepted, without evidence, the assertion that legislation narrowing employers’ liability for stress-related mental injuries would save employers money by eliminating unusually susceptible claimants and minimizing fraud and abuse in claims for stress-related mental injuries.39 C.J. argues that the “arbitrariness and harsh effect” of the damages caps is “exacerbated” when applied to her because (1) as a rape victim, her injury involves a “disproportionate amount of pain and suffering compared to monetary loss” and (2) as a low-wage earner her “recovery will depend almost entirely on noneconomic damages.”41 We are sympathetic to C.J.‘s particular circumstances. But while limiting the noneco- nomic damages for such a grievous injury may seem harsh, we have held that “under a minimum scrutiny analysis, we do not determine if a regulation is perfectly fair to every individual to whom it is applied.”42 Rather, “we must decide only if the regulation bears a fair and substantial relationship to a legitimate government objective.”43 As we have explained, the damages cap satisfies this standard. A final consideration is that the arguments advanced by C.J. and the Evans dissent would have far-reaching implications that are inconsistent with established law. Legislation frequently reduces or eliminates certain tort remedies, and often the rationale for making a subgroup of injured people pay the price of legitimate legislative goals could not survive close scrutiny. We have already mentioned some precedents that illustrate this point, but some more general examples also come to mind. Workers’ compensation statutes base damages entirely on wages, essentially eliminating all noneconomic damages.44 At oral argument, C.J. responded to this example by noting that while a damages cap is an unmitigated detriment to tort victims, workers’ compensation has given workers a streamlined, no-fault system in return for the lower recovery. But C.J.‘s characterization works only at a high level of generality. Workers whose wages are low, who have been the victims of blatantly negligent conduct, or who suffer exceptional noneconomic injuries bear the brunt of a system that may benefit their co-workers or employers but certainly does not benefit them. Similarly, where someone is injured by the negligence of a state official, sovereign immunity and official immunity may bar recovery entirely.45 This immunity exists to promote vigorous Notwithstanding the foregoing, we appreciate that there will be severely injured persons who are under-compensated as a result of this legislation, and we are under no illusion that this result will seem fair to them. In deciding that the cap is constitutional, we express no opinion about whether damages caps are good policy.48 As we noted in Evans, “[i]t is not a court‘s role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people.”49 Because the State has met its burden under minimum scrutiny of showing that the damages caps are substantially related to the legitimate interest of reducing insurance premiums, we hold that the cap does not violate C.J.‘s right to equal protection. C.J. arguеs that the superior court erred in limiting her potential damages to the single cap amount of $400,000. She contends that if the damages cap is applied to her she is entitled to recover the cap amount for each of the three types of sexual penetrations that formed the basis of Carter‘s three convictions. The State argues that the superior court correctly applied a single cap because C.J.‘s injuries occurred as part of a single criminal episode. Alaska Statute 09.17.010(b) imposes a cap on claims “arising out of a single injury or death,” and The Indiana Court of Appeals reached a similar conclusion in a case involving a stat- ute capping damages for each “occurrence of [medical] malpractice.”53 The court interpreted “occurrence” to mean each negligent act and its resulting injury,54 and held that where a doctor committed two separate acts of negligence resulting in two separate injuries in the course of a single medical procedure, the plaintiff was entitled to the equivalent of two cap amounts.55 The court noted that to impose a single cap on two distinct acts resulting in two distinct injuries “would undermine fundamental principles of tort law.”56 Here, Carter committed three distinct acts, each an intentional tort, each causing a separate injury. In applying The multiple sexual penetrations in this case are analogous to the multiple sexual violations that occurred in Kodiak Island Borough v. Roe.60 We held in Kodiak Island that each occurrence of rape caused a separate injury and therefore the plaintiff was entitled to damages for each assault.61 Although the sexual assaults in this case occurred within a more compressed time frame, each sexual assault constitutes a separate incident for purposes of the cap. Moreover, it would be anomalous to conclude one damages cap applies because the rape was a single continuous episode when the State successfully defeated precisely that theory in the criminal case and obtained separate sentences for each penetration.62 At sentencing, Carter‘s attorney argued that even though Carter had been convicted of three sexual assaults he should only be subjected to a single sentence beсause there “was no break in the event, it was a continuous episode.” The State opposed this argument, seeking thirty years on each count imposed consecutively. The judge rejected the defense‘s argument for a single sentence, finding that it was “significant that this victim was assaulted in different ways.” As a result, Carter received three partially consecutive sentences totaling forty-five years. Given that each type of penetration was found to constitute a separate criminal act meriting separate punishment, it would be unjust to conclude that the victim of these separate violations is limited to a single cap amount. We therefore hold that if C.J. prevails in her civil suit, she is entitled to recover up to the cap amount for each of the three types of sexual penetration. We hereby REVERSE the superior court‘s order that C.J.‘s potential noneconomic damages be capped at $400,000 under BRYNER, C.J., and CARPENETI, J., concurs and dissents. MATTHEWS, Justice, dissents in part. BRYNER, Chief Justice, concurring and dissenting. I write separately to address two points. First, although I agree with the court‘s decision, I rely on a somewhat different rationale. In today‘s companion case, State, Department of Corrections v. Cowles,1 we construed Neakok2 to impose an actionable duty on parole officers only when the officer knew or reasonably should have known of a focused danger to an identifiable victim or class of victims — a present danger focusing on something “more than simply members of the general public.”3 As I indicated in my concurring opinion in Cowles, I would hesitate to conclude that the population of Anchorage qualifies as an identifiable class of victims under this standard.4 Given the state‘s failure to demonstrate that it was entitled to summary judgment on the specific ground it asserted below, I agree that the superior court properly declined to grant the state‘s motion for complete summary judgment; I further agree that the superior court‘s ruling on the issue of summary judgment must be reconsidered on remand in light of our opinions here and in Cowles. But in addition to other questions today‘s opinion identifies for consideration on remand, I would include the question whether C.J. can meet Neakok‘s focused-danger requirement. I concur in Part IV.A. of today‘s opinion on this basis. Second, as to the opinion‘s ruling on the issue of capping noneconomic damages, I adhere to my dissenting opinion in Evans v. State5 and thus dissent from Part IV.B. of the opinion. I join the opinion in all other respects. CARPENETI, Justice, concurring and dissenting. I agree with the court‘s opinion in all respects exсept Part IV.B. For the reasons expressed in Justice Bryner‘s dissent in Evans ex rel. Kutch v. State,1 in which I joined, I would conclude that MATTHEWS, Justice, dissenting in part. In my dissenting opinion in State of Alaska, Department of Corrections v. Cowles, I concluded that tort liability should not be imposed on parole officers or the State for negligent supervision of parolees.1 The main premise of the case holding to the contrary, Division of Corrections v. Neakok — that parole officers have a substantial ability to control the conduct of parolees2 — has been shown in subsequent years to be false and therefore Neakok should be overruled. I would thus reverse the superior court‘s denial of the State‘s motion for summary judgment concerning the duty issue and remand for an entry of judgment in favor of the State. That result would moot the additional questions addressed in today‘s opinion as to whether the cap on noneconomic damages in Alaska Statute 09.17.010 caps noneconomic losses at the greater of $400,000 or the injured person‘s life expectancy multiplied by $8,000, except in cases of severe permanent physical impairment or severe disfigurement. The cap is triggered by “a single injury or The term “single incident” should be interpreted in a manner that is consistent with its common usage.4 In common usage, a rape or sexual assault occurring in a brief period of time is referred to as an “incident” without regard to the details of the assault. This usage is well illustrated by the opinion of the court of appeals in Yearty v. State.5 The defendant there had raped a woman at a supermarket.6 In the process he had engaged in several types of penetrations.7 The court referred to this assault as “the Carrs Supermarket incident.”8 Similarly, the same defendant had engaged in another multi-crime sexual assault near a bike path at Goose Lake.9 The court of appeals described this assault as “the Goose Lake incident.”10 The same usage is reflected in another single incident, multiple-penetration case of the court of appeals, Erickson v. State.11 There the court stated: In the present case, the jury found that Erickson had engaged in four distinct types of sexual penetration with the victim. To paraphrase Dunlop, “[w]hen several [distinct types of sexual penetration] occur in the course of a single incident, the offense prohibited by the statute has been violated several times over.”12 In Kodiak Island Borough v. Roe a mentally disabled resident of a residential facility was sexually assaulted by two employees of the facility.13 There were four separate assaults, two by each employee, each on different days and in different locations in the facility.14 We referred to each event as an “incident of assault.”15 We employed the same usage in referring to a Montana case where there had been three rapes of a patient on three separate occasions, describing The usage reflected by these cases applies here. Just as the multi-crime bike path sexual assault in Yearty was described as an “incident,” and just as the multi-penetration assault in Erickson was described as a “single incident,” the rape that took place in this case is most readily described in the same way. This interpretation is also consistent with the purpose of the damage cap statute. The statute is meant to limit damage awards in order to lower, or at least control, insurance premiums.17 This purpose is furthered by employing the common-usage meaning reflected in the above cases because the resulting noneconomic injuries suffered by a victim are limited to a single cap. On the other hand, subdividing a sexual assault into discrete penetrations runs counter to the purpose of the statute by effectively taking the damage cap out of play. Apart from the general usage of the word “incident” and the purpose of the statute, how else could one determine whether a series of acts consist of a single incident or two or more separate incidents? A sensible approach is to use the same test used to determine whether a set of facts constitutes a single transaction or occurrence, or more than one. This is the test that we use when determining whether a counterclaim is compulsory and thus must be asserted in response to a complaint, and when determining whether a cause of action has been impermissibly split. “Incident” and “occurrence” are synonyms,18 and our endeavor here is much like what we try to do when we use the same transaction or occurrence test: determine what combinations of facts should be tried together, if they are tried at all. The “same transaction” or “occurrence” test consists of a list of factors that are useful in determining whether various claims arise from the same transaction or occurrence. These factors “include whether the facts are related in time, space, origin, or motivation; whether they form a convenient trial unit; and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.”19 These factors indicate that the rape that occurred in this case is one transaction or occurrence rather than more than one. Most importantly the facts here are closely related in time, space, origin, and motivation. Further, they would form a cоnvenient trial unit. As to the parties’ expectations or usage, I think it would be unprecedented to conduct separate trials for each type of penetration that took place in the course of a sexual assault. So these factors also point to the conclusion that what we have here is a single transaction or occurrence. Based on all these factors, it seems clear that a victim of a multiple-penetration rape could not try a civil case based on a complaint limited to only one penetration and then subsequently bring a new case based on a second penetration. Doing so would run afoul of the rule prohibiting splitting a cause of action. It follows that each penetration is part of the same transaction or occurrence and, by analogy, also a part of a single incident. The fact that the criminal law may count each type of penetration as a separate crime seems to me to be irrelevant. Alaska Statute 09.17.010 applies to civil not criminal cases. There is no analogous statute or legal principle in criminal law that mandates that multiple affronts sustained by one person as a result of a single incident must be considered a single crime.20 The purposes of the crimi- In summary, the brutal act that gave rise to this case was a single incident within the common usage of that term. This usage controls the meaning of For these reasons I would uphold the determination of the superior court that the injuries suffered by the victim in this case are subject to a single cap.III. STANDARD OF REVIEW
IV. DISCUSSION
A. Duty, Immunity, and Causation
B. The Cap on Noneconomic Damages in AS 09.17.010 Does Not Violate C.J.‘s Right to Equal Protection Under the Alaska Constitution.
C. C.J.‘s Damages Should Not Be Limited to a Single Cap Amount Under AS 09.17.010(d).
V. CONCLUSION