*1 allege financial or commercial infury chil- sure does not to their thereby personal caused subject is not misrepresentations advance and so purport do not The Greens dren. 09.50.250(8). According misrepresen- of for the tort dismissal under AS separate claim superior ly, court's sum tation. we REVERSE REMAND for mary judgment orders and Su- the California In Johnson v. proceedings.41 further noted that preme Court lends itself potentially "misrepresentation" EASTAUGH, Justice, participating. elusive inter extremely expansive and automobile who pretations. A of an driver misleading signal, for exam turn
makes in "misrepresented" literally
ple, has of conduct. subsequent course
tentions and hold the state it would be senseless
Yet any failed to make employee if
liable its "nonrepresentation," but arguably a signal, affirmatively if he opposite result
reach the intentions.[39] SHEARER, Appellant, Daniel P. "misrepresented" here to hold Similarly, it be senseless would gather failing to liable for the state ANCHORAGE, MUNICIPALITY OF potential fos- relevant information disclose Appellee. immunity for parents, providing ter Billy's affirmatively misrepresenting suitabil- No. A-7467.
ity placement. for foster Appeals of Alaska. Court agree California thus with the " 'misrepresen Supreme view that Court's 23, 2000. June general tation, from the as a tort distinct wrongs, intentional negligent milieu financial and
applies to interferences with interests." We conclude commercial 09.50.250(3) only exempts the state from
AS misrepresentation claim. Be type of against DFYS does the Greens' claim
cause from an invasion of financial
not arise 09.50.250(8) interests, does
commercial AS superior court's apply. We reverse summary
grant judgment based on this
provision.
IV. CONCLUSION duty care to disclose
DFYS owes a of due prospective foster
relevant information here,
parents. taken The evidence Greens, would
light favorable to the most jury
permit a to find DFYS duty its breach caused and that
breached injuries. foreseeable
the Greens to suffer negligent claim for nondisclo-
The Greens'
782,
240,
unnecessary
to consider
Cal.Rptr.
41. Our reversal makes
Cal.2d
-
challenge
superior
court's
(1968).
Greens'
prevailing party
awarding
attor-
order
the state
ney's
award must be vacated because
fees. The
Cal.Rptr.
On midnight, after Anchorage Anthony Police Officer driving toward the northbound Glenn Highway exit on Muldoon Road when he Jeep pull observed black Cherokee out of a strip partially mall and obstruct the oncom- ing lane of traffic. Provost attempt did not Jeep already because he was Highway. committed to the Glenn just finished way his shift and was on his Eagle home to River. He was unmarked Ford Aerostar van. right
Provost was
hand lane
Highway
on the Glenn
when he noticed a
Jeep
vehicle similar to the
he had
seen
pass him in
"high
the left lane at a
rate of
speed."
Jeep
Provost then observed the
speed
per
slow down to a
of 55 miles
hour as
approached
Jeep
two other vehicles. The
pulled
right
over
passed
hand lane and
those vehicles. Provost testified that he
Jeep
watched the
move back and forth be-
lanes, generally
tween
signaling
without
first
(although at
signal
times the driver would
lane).
after he entered a
point,
new
At one
Jeep
Provost observed the
.
move into the
Cole,Anchorage,
R.
Appellant.
Brent
for
right
signal
lane with its left
on.
ClarkWeeks,
Carmen E.
Assistant Munici-
Provost testified
training;
that based on his
Prosecutor,
pal
Mary Hughes,
and
K.
Munic-
officer,
years
his 20
of experience
as a
ipal Attorney, Anchorage,
Appellee.
for
"speeding,
slowing,
passing,
and
changes,
the lane
the movement
...
from
COATS,
Judge,
Before
Chief
STEWART, Judges.
signal
one lane to another and
MANNHEIMER and
then
lane,"
comes on and then back into the first
impression
was that
the driver of the
P I N I N
O
Jeep was intoxicated. Provost characterized
COATS,
Judge.
Chief
Jeep's
"gross weaving"
movement as
Highway.
over several lanes of the Glenn
charged
Daniel Shearer was
with one
minutes,
observing
Jeep
After
for several
(DWI).1
count of
while intoxicated
telephoned Anchorage
Police De-
suppress
Shearer moved to
on the
evidence
(APD)
partment
dispatch and advised them
grounds
off-duty police
that an
officer's en
suspected
Jeep
that the driver of the
driveway
counter with
consti
was intoxicated. Provost asked APD to run
investigatory stop.
tuted
invalid
After
Jeep's
plates
check on
license
Judge Sigurd Murphy
District Court
E.
de
f
eventually
for
called
assistance.
motion,
to,
nied
pled
no
contest
of,
guilty
ap
According
found
DWI.2 Shearer
Jeep
took the
peals, claiming
Judge Murphy
Highland
erred in
Road exit and traveled at an exces-
denying
suppress
the motion to
speed
proceeded
ewdence
sive rate of
as it
down the
We affirm.
Loop
Eagle
Road toward
River. Provost
AMC 9.28.020.
of whether
the district court erred in
denying
suppress
his motion to
evidence.
preserved
appeal, pursuant
2. Shearer
Co
(Alaska 1974),
oksey v.
noted DWI, in violation of AMC 9.28.020. into with then back left lane and right into the suppress the evidence ob- post- moved to traveling than the faster right lane Provost. initial contact with As the after his Loop Road. tained limit down the speed ed evidentiary hearing, *3 Provost) Following an (and Kantishna approached Jeep subse- the motion. Shearer Road, dispatch reported Murphy denied Loop on the Drive pled no contest to DWI. quently the vehicle to which the address to Provost dispatch Provost advised registered. was question us is whether before that headed to appeared to be driver that the an in suspicion standard the reasonable Kantishna Jeep turned left on address. by adopted supreme the vestigatory stop, out, degrees. turning 270 spun and Drive State,3 in was in v. satisfied Coleman turn and continued corrected the The driver Coleman, investigatory this case. Under to his residence. only in where the permitted situations Jeep used Although the driver of suspicionthat "a reasonable policeofficer has door, garage he open the control to remote danger serious exists or imminent driveway. Provost Jeep in his parked the recently property has persons to harm of the he contacted driver testified 4 "argu admits that he occurred." Shearer Shearer) (Daniel stepped out of as he Jeep public danger" when ably posed an as a identified himself Provost the vehicle. Nevertheless, driving home. Shearer to APD and asked Shearer with the detective Jeep in his parked that because claims Provost con- away the vehicle. step from and was headed driveway, exited the vehicle obtained and pat a down search ducted Provost contacted home when towards his testified identification. Shearer's - reasonably him, to sus Provost had no basis of alcoholic bever- the odor that he detected pose to an immi continued pect that Shearer asked person. ages on Shearer's Judge motoring public. danger to the nent alphabet and to balance Shearer Murphy disagreed. and sobriety The alcohol odor field tests. addressing of reasonable In difficulty performing the field Shearer's Judge Murphy found that suspicion, im- initial confirmed Provost's information, on his obser- enough based intoxicated. pression that Shearer reasonably driving, to vations of Shearer's ini- of his a different account Shearer had intoxi- while Shearer driveway. with Provost tial contact what Judge Murphy next addressed cated. got of his car that he out testified Shearer and arrived home happened once Shearer driveway to enter his up the and walked nothing prevent found garage. He had through the basement home into his vehicle getting back from he heard garage, when entered Thus, Judge night. driving again that and "hey buddy." someone call out continued Murphy concluded that Shearer man in civilian and saw a turned around driv- pose potential him. testified signaling at clothes car though parked he had ing public, even in trouble and thought the man was that he driveway. garage help, he walked out of needed so got approached the man. When Shearer Murphy's findings are consis Judge driveway, the man identi- of the to the end of this court and prior decisions tent police officer. fied himself as a applied the Cole that have supreme court stops. As transported to man standard was arrested concedes, In- for an Eagle River substation it is well established poses a breath toximeter test. Shearer submitted the crime the public.5 In addi dangers to significant aleohol resulting .172 blood sample, with a (Alaska 1976). P.2d 701 (Alaska 577 5. See Ebona 553 P.2d 1978); Moran, State v. at 46. Id. tion, place."1 suspect a DWI upheld We actually does not have to judge's trial finding be pose vehicle in order to immi that the defendant would have resumed driv ing at point public.6 a later nent Nevertheless, and that the officer was Judge Shearer claims Murphy's finding not unreasonable in believing change that the posed drivers did not that he continuing danger eliminate the need to make investigatory stop.14 motoring public supported is not by the rec ord because there is no evidence that he Similarly,in this case Murphy found again would have driven night. that Provost had suspicion, based rejected arguments similar in Larson v. on his observations of driving, v. Anchorage.8 State7 and Romo posed an imminent danger safety. Judge Murphy recognized Larson, that the officer observed *4 stopped defendant's car danger the element of middle of did a terminate when road, dirt exited his Although vehicle. the defendant Shear- behind the wheel. The er claims he was home officerwatched as the defendant night, for the Murphy found that nothing was pulled up next to pedestrians, two talked to prevent Shearer going from them inside and then drove his north on wrong the side coming out, back and driving again. We of the road.9 The officer decided to follow agree that the danger the defendant and subsequently witnessed posed to the driving public did not several cease suspicious instances of driving by the simply pulled because Shearer into his drive- Finally, defendant. the officer saw the de way and exited his vehicle. Our conclusion pull fendant over next pedestrians. two supported by our decision in Romo. got One of them into the driver's seat and the defendant slid into Romo, passenger In seat.10 officer decided to follow The proceeded new driver the defendant after recognizing prostitute to drive down the road stopped by the officer. The in the front seat of his vehicle. The officer officer immediately went passenger saw no indication from defendant's side, contacted the defendant and arrested that he was intoxicated. The defendant him for DWI.11 pulled into a parking lot. The officer fol lowed, but did not activate lights.15 his primary appeal issue on in Larson defendant voluntarily got out ofhis vehicle was whether the officer made a valid investi approached officer, who then noticed gatory stop. agreed We with the trial the odor of alcohol on the defendant. finding court's the officer had reason response questioning officer, from the (based suspicion able on his observations of defendant admitted that he had been drink driving) defendant's that the defendant's ing. The officer then asked the defendant to driving posed an public tests, sobriety field which he failed.16 safety and that stop justified.12 But, we also addressed the argument defendant's facts, Based on the above we found that "requisite element of termi officer had "sufficient reasonable nated when [the defendant] ap allowed an suspicion" that the defendant in Romo was parent stranger to drive the car his while intoxicated. We thus conclud- (Alas- 6. See Jacobson v. State, 10. Id. at 1336. 935, 551 P.2d 938 1976) ("An ka seated behind steering wheel of a motor vehicle [that is not 11. Id. moving] is a safety threat and welfare of (citations omitted). public) State, See also 12. Id. Department Safety Conley, Public 754 P.2d (Alaska 1988); 236 Lathan v. 707 P.2d 13. Id. at 1337. (Alaska App.1985). 14. Id. (Alaska
7.
App.1983).
exited Coleman, with Shearer. contact by made believe, required as ably as any longer danger" existed immaterial. public this distinction "imminent case-whether driving: in this issue from The ultimate that "immi reasonably believe no Provost could case, made Judge Finn In the instant after to exist danger" continued nent to the likelihood finding as specific affir answered his vehicle-is exited reasonable or the driving again argues also matively by immi Romo.20 belief Plummer's ness of Officer know the defen didn't in Romo as are satisfied the officer danger. We nent complex next to apartment lived dant that an law matter of lot, start the defendant nor did parking The fact in this case. proper However, his house. walking to his encoun towards driving just prior Romo that, like change the fact does not distinction demonstrated Plummer with Officer ter Romo, *5 still Shearer in his current to drive the defendant willingness encounter, the encounter time of at the to his car time of access At the condition. just Further, had Shearer his car Provost. possession of with Romo retained drive while willingness to him to for his immediately accessible demonstrated remained reasonably Thus, could there Provost circumstances intoxicated. these drive. Under public of imminent risk of a sufficient risk was a sufficient that there believe investigatory justify an stop.18 to investigatory public an warrant danger to stop .21 reasoning in Romo is our that We Provost's obser case. to this applicable also above, we discussed the reasons For suspicious of miles several of
vations denied properly Murphy Judge clude particular a him with provided by Shearer The suppress evidence. motion Shearer's suspect objective basis ized and AF- is the district judgment intoxicated. driving while FIRMED. the fact Murphy found head his vehicle exited had dissenting. MANNHEIMER, Judge, not eliminate home did his towards ed law, who has police officer a Alaska vehi Under get back would that Shearer risk is a reason driving. do not believe We and resume cle stop the motorist can intoxicated The while clearly erroneous. finding is this State1, su In Ebona investigate. Jeep prior drove fact that Shearer this held that preme court demonstrated with his encounter person who a justified because Fur intoxicated. while drive willingness to pub "imminent an presents encounter ther, at the time case is in this question danger". The lic possession retained justi stop remains an "immediately whether accessi it remained vehicle and car, parks the motorist that, after fied even conclude him to drive. ble" away, with no engine, and walks off the turns risk of Romo, a sufficient there under re intends to motorist indication to war case this that, such under driving. I conclude stop.19 sume rant Id. 21. at 1069. 17. Id. Id. at 1069-1070.
18. 1978). 698, 700-701 P.2d Id. Id. cireumstances, arrest. Municipality The is no imminent further concedes danger, and so an stop is not that Provost coerced perform Shearer to allowed. field sobriety through tests display of au- thority. part, For his that, Shearer concedes
Underlying facts
by the end of
tests,
the field sobriety
Anthony
Police
enough
Officer
obtained
Provost saw Daniel
information
about
Shearer's level of
justify
driving erratically just
intoxication to
after mid
night
January
is,
on
arrest.
by
1999. Shearer
That
con
the end of the field
cedes that his
driving gave
sobriety
erratic
probable
Provost a
Provost had
cause to
suspect
reasonable basis to
that Shearer was
believe that Shearer was under the influence.
driving while intoxicated. Because
problem
The
is the manner in which Provost
suspicion,
Provost would have obtained this information.
justified
been
in stopping Shearer's vehicle to
voluntarily
walked down the drive-
investigate
potential
crime.2 But
way
speak
to Provost. Had Provost mere-
traffic
would have been difficultbecause
ly engaged in
Shearer,
conversation with
off-duty:
Provost was
he was dressed in
officer conceivably
gleaned
could have
suffi-
clothes,
civilian
and he was driving
private
cient information from
speech,
de-
vehicle
emergency lights
without
or a siren. meanor, and balance to
probable
establish
So
performing
instead of
stop,
traffic
Pro
cause to make an arrest. But Provost imme-
vost followed Shearer. He called for a back
diately displayed
badge
and directed
up officer, and he
also asked
dispatch
field
tests.
to run a check on
registra
Shearer's vehicle
These actions constituted an investigative
tion.
stop-a
seizure for Fourth
pur-
Amendment
dispatcher
told
poses.
is whether this seizure
lived on Kantishna
Eagle
Drive in
River.
legal.
*6
him,
With Provost behind
Shearer drove to
parked his own vehicle on the street. As
the Kantishna Drive
driveway,
and
parked
address,
his car.
turned into the
Provost
7,eg
requirement
"imminent
public
dan-
watched,
Provost
Shearer used a
remote con-
Coleman v. State
Supreme
the Alaska
open
trol
garage
to
his
door. He
Court
then
was asked to decide whether the Alas
walked toward the
preparing to enter
ka
permits
police
Constitution
officer to
through
garage.
the
investigative
conduct an
stop based on rea
(i.e.,
suspicion
sonable
probable
less than
point,
At this
Provost called out to cause). The court ruled that
investigative
and asked him to come back down the drive-
stops based on
suspicion
per
are
way. Shearer did not know that Provost was
mitted in two instances: when the officer has
officer;
he assumed that Provost was
reason to believe that
public
"imminent
dan
a motorist who was either
having
lost or was
ger exists", or when the officer has reason to
car trouble. But as soon as Shearer walked
believe that
persons
"serious harm to
or
up
to
displayed
badge.
property
recently
has
occurred".4
He
directed Shearer
to
field sobri-
ety tests.
performance,
Based on Shearer's
points
Shearer's case
out a erucial distinc-
Provost arrested him
for
while intoxi-
tion between
categories.
these two
If an
cated.
investigative
justified
stop is
because there is
The Municipality Anchorage
concedes
reason to believe that "serious harm ... has
that, before
performed
the
recently occurred",
field so-
it does not matter wheth-
briety
only
Provost had
a reasonable
er the
continuing
crime is
or has been com-
suspicion that Shearer was under the
pleted.
case,
influ-
In either
Coleman authorizes
ence
probable
rather
than
cause to make
investigative
the
stop.
investiga-
But if the
Ebona,
2. See
to believe
category
first
Coleman's
justified
establish
under
must
government
ists",
then the
Moreover,
the
ongoing
(imminent
danger).
or
public
is
crime
that the
reason
that
in its
in motion
this issue
raise
Municipality
set events
did not
has
the crime
Instead,
Municipality
the
crime is
this court.
the
public-unless
brief to
endanger
will
interrupted.
during oral
events
time
or the
the first
revealed
this issue
raised
circumstances,
these
argument. Given
court
nor this
court
supreme
Neither
its contention
waived
Municipality has
driv
crime of
whether
ever decided
has
categor
second
falls within Coleman's
DWI
Coleman's
falls within
intoxicated
ing while
y.
persons
to
harm
category of "serious
second
6, the
v. State
in Ebona
But
property".5
remaining contention is
Municipality's
who
a motorist
held
supreme
court
stopped driv-
had
that,
though Shearer
even
an "immi
constitutes
drives
pose a
ing, he continued
Thus,
when
danger".
public
nent
investi-
upheld the
The district
public.
driving a motor vehicle
sees a
officer
ruled
The court
on this basis.
gative stop
has reason
and the
parked his car
had
that,
though Shearer
even
authorized
intoxicated,
the officer
driver
house, it
at
way
into
on his
investigate.7
stop and
a traffic
conduct
shortly
might
re-
possible
least
is different:
But Shearer's case
again.
begin
and
turn to his car
vehicle when
driving a motor
longer
no
stop.
performed
Municipality
I conclude
Why
residence,
had
he
reached
suspicion
a reasonable
to establish
engine,
and
off
car and turned
parked his
failed
dan-
an imminent
posed
house. Shearer
entering his
he was
ger
when
Coleman
violated
that Provost
tends
foot
stop at the
performed the
justify
government's burden
It
is the
because, by
time
driveway
An
seizure.
any warrantless
long-
no
stop, Shearer
conducted
suspi-
on reasonable
stop must be based
posed an
er
which,
articulable facts
clon-"specific
points out
safety
or welfare.
inferences
rationale
together
[the]
taken
over,
argues
act of
*7
int
facts, reasonably
warrant
from those
he
no reason
there was
prong
first
Because Coleman's
rusion."9
near
future.
driving in the
resume
would
danger, we
imminent
proof of
requires
Anchorage offers two
Municipality of
The
question:
Offi
following
When
must ask the
answers to Shearer's argument.
performed
cer Provost
First,
Municipality
he
driveway, was
the foot
asserts
at
see-
within Coleman's
falls
while intoxicated
indicat
facts
specific and articulable
aware
constitutes
offense
category-that
ond
posed an
ing that Shearer
If
property".
or
persons
harm to
"serious
Or,
rephrase
public?
to the
justified in
been
so,
would have
then
of this
particular
facts
reference
with
though
stop even
performing
specific and articula-
have
Did Provost
case:
'
was over.
offense
believing
would
reasons
ble
driving before
resume
raise this
leave his house
did
But
Municipality
sobriety?
regained
court,
district
and the
trial
argument
406,
803 P.2d
Co.,
Ins.
Mutual
v.
n.
8. Petersen
1065, 1070
Anchorage,
697 P.2d
Romo v.
Life
5. See
1990) (issues
(Alaska
are
not briefed
8
411 n.
2
waived).
700-701.
P.2d at
Ohio,
Coleman,
Terry
(quoting
45
P.2d at
1880,
1868,
21,
20 L.Ed.2d
S.Ct.
392 U.S.
(1968)).
Ebona,
at 701.
majority
possibility
ble
that the motorist will resume
believes that
the answer is
supplied by
Romo,
Romo v. Anchorage.10 In
driving. This
stretching
Romo too far.
pick
followedthe defendant's
Romo,
the officer
reasonably
could
up truck
recognized
because he
the woman
clude that Romo
merely
interrupted his
passenger
prostitute.
as a known
Romo
driving in order
to talk with the officer.
pulled into
parking
apartment
lot of his
stopped
Romo
his vehicle and walked over to
building
stopped
his truck. The officer
car,
patrol
officer's
gave
but he
no indica-
stopped
patrol
forty
car some
fifty
feet
tion that he had reached his final destination
away, but he did
attempt
to make contact
or that he
intended to
driving. As this
moments,
Romo.11After a few
got
Romo
stressed,
"Romo
possession
retained
out of his truck and walked back to the
his car and it
immediately
remained
accessi-
patrol car
engage
in conversation with the
ble for him to drive."
officer. During
conversation,
the officer
smelled alcoholic beverages on Romo's
majority
concedes that Shearer's case
breath, and Romo admitted that he had been
is different.
parked
his car in his
drinking. When Romo failed various field
driveway, he turned
engine,
off the
and he
sobriety tests,
the officer arrested him for was proceeding into his house when Officer
driving while intoxicated.12
Provost called him back. The hour was mid-
night-a
time
people
One of
when
arguments
ordinarily
Romo's
appeal
return
on
that,
home for
night. Nevertheless,
even after the officer
signs
observed
the ma-
jority
concludes
Officer
intoxication,
had a
officer had no
authority
specific,
ask Romo to
the field
articulable
believing
basis for
continued to
pose
dan-
any
tests
to take
other
action
amounting
ger to
safety.
to an
stop. Romo contended
that,
stopped
because he
his truck in the
judge
The district
upheld
who
the investi-
parking
apartment
lot of his
building, and
gative stop reasoned that
might
got
because he
out of his car to talk to the
conceivably
going
been
home
to re-
have
officer, there was no longer an "imminent
trieve more
beverages
alcoholic
and then re-
public danger"
required
as
by Coleman.
driving.
sume
imagine
One can also
other
rejected
This court
argument:
Romo's
scenarios in which
might
resume
We are satisfied as a matter of law that an
though
initially
even
intended to
investigatory stop
proper
in this case.
remain at
example,
home-for
if his children
The fact that
driving just
Romo was
prior
demanded that he take them out for a mid-
to his encounter with Officer Plummer
night snack, or if Shearer's wife threw him
demonstrated
willingness
to drive
out of
forcing
him to seek new
in his [intoxicated] condition. At the time
lodgings.
encounter,
of the
posses-
Romo retained
(and other)
These
speculative possibilities
sion of his car and it remained immediately
can not be ruled out. But Coleman and
*8
accessible for him to drive. Under these
Terry
require
v. Ohio
speculative
more than
cireumstances{,] there was a sufficient risk
possibilities.
justify
To
investigative
sei-
public danger
to warrant an
case,
zure in
government
this
point
must
investigative stop.
specific
and articulable facts that would
Romo,
tion of permitted. not be stop would if we clearer becomes This case. facts of the slight variation consider actual facts Concededly, the case. Shearer's lack of clearly prove Shearer's so do not case But driving. to resume unsure of intent that Officer Suppose speculative negate all burden simply watched Shearer's proceed, how to might to leave decide that he possibility into his walked garage, entered Rather, it is driving again. begin behind house and garage door and closed to come Municipality's burden minutes waiting forward several After him. - that affirma- facts articulable specific, re-emerge, Officer might resume for advice. and asks that Shearer supervisor tively indicate tacts a on in this case. to knock facts are no such driving. tells There supervisor will if and see door front Shearer's stop of Accordingly, Provost's now, twenty min- By talk. come outside unlawful, ob- evidence and the house by, gone and Shearer's have utes should during that tained minutes. several knocks for dark. reverse I would suppressed. have been He is the door. answers length, Shearer At conviction. barefoot, and he pajamas, he is dressed He is obvious- hand. a toothbrush has
ly preparing for bed. facts, is no there hypothetical these
Under to believe reason articulable
specific, Thus, if even driving. would resume was reason