Alaska Employment Law

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I.  The Statutory Framework for 911 Immunity

AS 09.65.070.   Suits against incorporated units of local government

(a) Except as provided in this section, an action may be maintained against a municipality in its corporate character and within the scope of its authority.
. . .
(c) An action may not be maintained against an employee or member of a fire department operated and maintained by a municipality or village if the claim is an action for tort or breach of a contractual duty and is based upon the act or omission of the employee or member of the fire department in the execution of a function for which the department is established.

(d) An action for damages may not be brought against a municipality or any of its agents, officers, or employees if the claim . . .

(2) is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents, officers, or employees, whether or not the discretion involved is abused;
. . .
(6) is based on the exercise or performance of a duty in connection with an enhanced 911 emergency system and is not based on an intentional act of misconduct or on an act of gross negligence.

(e) In this section

(1)  “municipality” has the meaning given in AS 01.10.060 and includes a public corporation established by a municipality.

(2) “village” means an unincorporated community where at least 25 people reside as a social unit.

AS 09.65.090.   Civil liability for emergency aid

(a) A person at a hospital or any other location who renders emergency care or emergency counseling to an injured, ill, or emotionally distraught person who reasonably appears to the person rendering the aid to be in immediate need of emergency aid in order to avoid serious harm or death is not liable for civil damages as a result of an act or omission in rendering emergency aid.

(b) A member of an organization that exists for the purpose of providing emergency services is not liable for civil damages for injury to a person that results from an act or omission in providing first aid, search, rescue, or other emergency services to the person, regardless of whether the member is under a preexisting duty to render assistance, if the member provided the service while acting as a volunteer member of the organization; in this section, “volunteer” means a person who is paid not more than $10 a day and a total of not more than $500 a year, not including ski lift tickets and reimbursement for expenses actually incurred, for providing emergency services.

(c) The immunity provided under (b) of this section does not apply to civil damages that result from providing or attempting to provide any of the following advanced life support techniques unless the person who provided them was authorized by law to provide them:

(1) manual electric cardiac defibrillation;

(2) administration of antiarrhythmic agents;

(3) intravenous therapy;

(4) intramuscular therapy; or

(5) use of endotracheal intubation devices.

(d) This section does not preclude liability for civil damages as a result of gross negligence or reckless or intentional misconduct.

AS 29.35.133.   Immunity for 911 systems

(a) The establishment, funding, use, operation, or maintenance of enhanced 911 systems and all activities associated with those actions are specifically found to be within the ambit of AS 09.50.250(1) and AS 09.65.070(d) (6).  Except for intentional acts of misconduct or gross negligence, a service supplier, local exchange telephone company, or wireless telephone company and their employees and agents are also immune from tort liability that might otherwise be incurred in the course of installing, training, maintaining, or providing enhanced 911 systems or transmitting or receiving calls on the system.

AS 29.35.137.   Definitions

In AS 29.35.131- 29.35.137, . . .

(3) “enhanced 911 system” means a telephone system consisting of network, database, and enhanced 911 equipment that uses the single three digit number, 911, for reporting a police, fire, medical, or other emergency number, 911, for reporting a police, fire, medical, or other emergency situation, and that enables the users of a public telephone system to reach a public safety answering point to report emergencies by dialing 911; an enhanced 911 system include the personnel required to acquire, install, operate, and maintain the system and its facilities and to dispatch the calls generated by the system;

. . .

(7) “municipality” has the meaning given in AS 29.71.800 and includes a public corporation established by a municipality and a village as that term is defined in AS 09.65.070 (e);

AS 08.64.366.   Liability for services rendered by a mobile intensive care paramedic

An act or omission of a mobile intensive care paramedic done or omitted in good faith while rendering emergency service to a person who is in need of immediate aid in order to avoid serious harm or loss of life does not impose any liability upon the mobile intensive care paramedic, the supervising physician, a hospital, the officers, members of the staff, nurses, or other employees of a hospital or upon a federal, state, borough, city or other local governmental unit or upon other employees of a governmental unit; however, this section does not relieve a physician or a hospital of a duty otherwise imposed by law upon the physician or hospital for the designation or training of a mobile intensive care paramedic or for the provision or maintenance of equipment to be used by the mobile intensive care paramedic.

AS 08.64.380.   Definitions

(4) “mobile intensive care paramedic” means an individual licensed by the board who has successfully completed a paramedic training program certified under AS 18.08 and is authorized by law to provide advanced life support under the direct or indirect supervision of a physician;

II. Legislative History of Alaska’s Governmental Immunity Statutes

1977 legislation amended AS 09.65.070 to add subsection (d), thus expanding immunity of municipalities to include discretionary immunity for governmental functions. SLA 1977, ch. 37, Sections 1-3.    The 1977 legislature added subparagraph (d) (2) so that municipalities would have the same discretionary immunity that the state had under AS 09.50.250 (1).  “Municipalities, like the state, must be able to perform discretionary acts without fear of suit…Municipalities will, subject to the limitations of this section, remain liable for their ministerial acts.”  Explanation of HB 354 and SB 249 Relating to Suits Against Local Governments, page 2.

The 1977 legislature added subsection (d) (6) to cover situations where local police respond in temporary absence of the Trooper, and mutual aid agreements respecting assistance at state airports. Explanation of HB 354 and SB 249, supra, p.6.

1993 legislation adopted an enhanced 911 system to allow for faster response time, automatic routing to appropriate emergency response units, immediate visual display of location and number of caller, and to curtail abuses of the system.  House CS for CS for Senate Bill No. 97 (FINA) am H.    It was the purpose of this legislation to “establish broad protections for acquiring, establishing, operating, and maintaining enhanced 911 systems.”  Id., subchapter 4b(1).

This legislation amended AS 09.65.070 (d) (6) to state that no action for damages could be brought against a municipality or its agents, officers or employees if the claim is based on the exercise or performance of a duty in connection with an enhanced 911 system and is not based on an intentional act of misconduct or on an act of gross negligence.

This 1993 legislation also amended AS 29.10.200 to add AS 29.35.133 regarding Immunity.  SLA 1993, ch. 57 Section 2.

III.   The Evolution of Alaska Case Law Re Immunity of Governmental Entities

Adams v. State, 555 P.2d 235 (Alaska 1976). Suit for damages naming the State of Alaska as defendant arose out of hotel fire in which five people died. The Superior Court, Third Judicial District, Anchorage, James K. Singleton, J., granted the State’s motion for judgment on the pleadings, and plaintiffs appealed.  The Supreme Court held that by its affirmative conduct in undertaking to inspect the hotel for fire hazards, the State assumed a common-law duty to proceed further with regard to hazards which were discovered; that the duty assumed by the State was owed to plaintiffs or their decedents; and that the statute which immunizes the State from tort claims arising out of failure to perform a discretionary function did not immunize the State from liability for negligent failure to alleviate known fire hazard.

City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985). Issue was the extent of a police officer’s duty to respond to a life threatening situation. Police received call from caller who identified himself, identified his location, and informed police that he was going to kill friend of his.  Despite receipt of this phone call, police failed to respond until 12 minutes later.  Court held that the city was not immune from suit, as the city owed a duty of reasonable care to protect plaintiffs who are in situations of life-threatening, assaultive conduct when police have been given sufficient specific information to respond.

Adams v. City of Tenakee Springs, 963 P.2d 1047 (Alaska 1998). Building owner sued city for alleged negligence in fighting fire, asserting in part that city’s failure to adequately staff its fire department caused fire department to negligently respond to fire in nearby building, so that the fire spread to and destroyed owner’s building. The Supreme Court held that: (1) city had discretionary function immunity as to staffing of its fire department, and (2) trial court did not abuse its discretion in excluding testimony regarding fire department’s alleged negligence in fighting a fire on another occasion.  However, court noted that “a lack of resources does not immunize a city for its ‘failure to follow its own rules.’  Id. at 1051 (citations omitted).

Angnaboguk v. State, 26 P.3d 447 (Alaska 2001). Landowners who suffered fire damage to their homes and property brought action against State Department of Natural Resources, alleging that its firefighting activities were negligently conducted. The Superior Court, Third Judicial District, Anchorage, John Reese, J., granted Department’s motion to dismiss for failure to state a claim, finding that Department was immune from liability. Landowners appealed. The Supreme Court held that: (1) as a matter of public policy, Department’s taking over firefighting operations from local authorities created duty to conduct operations non-negligently; (2) all firefighting decisions made by Department were not necessarily “discretionary” policy-based planning decisions subject to immunity under the Tort Claims Act; and (3) remand was required to permit trial court to determine whether Department’s allegedly negligent acts were “planning” or “operational” decisions.  Court stated its agreement with Massachusetts Supreme Court that certain on-the-scene fire fighting tactical decisions may be considered discretionary because they entail resource allocation decisions or considered decisions of firefighting policy that are properly vested in the officials in charge. Id.at 459.  Note: In contrast to the State, municipalities and villages can claim immunity for their employees in fire-fighting activities under AS 09.65.070 (c).

Dore v. Fairbanks, 31 P.3d 788 (Alaska 2001). Court held that children whose mother was killed by their father had no cause of action against city based on the alleged negligence of the city for failing to arrest father, for whom the city had an outstanding arrest warrant for domestic violence.  Court held that (1) city home rule charter and ordinances did not impose statutory duty of care on city to arrest father of children or otherwise protect father’s potential victim, the children’s mother, from harm, and (2) public policy did not impose an actionable duty on the city police department to arrest father of children after warrant was issued for his arrest, or otherwise protect their mother, the potential victim, from harm by father.  “There is no evidence in the present case that the police knew or should have known of his [the father’s] dangerous propensities.” Id.  at 796.  Under the Restatement framework, court perceived no special relationship between the police and the victims that would subject the city to liability for the police’s inaction.

Kiokun v. State, 74 P.3d 209 (Alaska 2003). Court held that initial decision of state trooper to delay launch of search and rescue effort for travelers was sufficiently based on resource allocation and public policy considerations so that it was protected by the doctrine of discretionary function immunity.  Neither the statute setting forth the powers and duties of the Department, nor statute authorizing commissioner to organize and direct search and rescue party imposed mandatory duty on state.  State’s arguable failure to adhere to Department’s operations did not prevent it from invoking discretionary function immunity defense.  Whether a governmental act is entitled to discretionary function immunity is a matter of law that is reviewed de novo.

State v. Cowles, 151 P.3d 353 (Alaska 2006). Personal representative of estate of parolee’s girlfriend and guardian for surviving child brought negligence action against State Department of Corrections for negligence by parole board and parole officer after parolee murdered girlfriend and shot himself while under parole supervision.  Court held that decisions made by parole officer  which were  based on a judgment call (where  client committed technical violations for which no pre-existing policy required reporting and revocation) were held to be discretionary and thus immune from liability.  “Parole officer must make policy judgments in deciding how to allocate time and resources among various clients.” Id. at 362.  “And officer must balance interests of public safety and rehabilitation of offenders when deciding how much time to devote to seeking out potential parole violations as opposed to assisting clients with housing, rehabilitation, and other needs.”  Id. 

IV.   Courts in Other Jurisdictions Have Conferred Immunity to Police and Fire for Alleged Negligence in Many Emergency Situations, Including Situations Where They Have Made Big Mistakes.

Leonzal v.Grogan, 516 N.W.2d 210 (Minnesota 1994) Plaintiffs sued city due to police officers’ response to allegedly bogus 911 call that had reported that one of the plaintiffs was threatening a neighbor with a shotgun.  After receiving 911 phone call from neighbors, police conducted a raid on the Plaintiffs’ home, forced Plaintiff to his knees, handcuffed him, and placed him in a squad car. Plaintiff sustained bruises from the incident, but did not seek medical treatment.  Plaintiff later brought personal injury action against city and neighbors for assault and battery, negligence, violation of civil rights and other torts.  Court held that police officers who responded to 911 call were protected by official immunity, and that city was vicariously immune from liability for protected actions of its police officers.  Court stated:

(1) An officer responding to a report of an armed person threatening the life of a neighbor must weigh many factors and exercise significant judgment and discretion.  Is the person dangerous? Are the alleged threats real and serious?  What is the mental and physical state of the person asking for help?  To what extent may the situation be dangerous for other persons? These questions must be resolved under emergency conditions with little time for reflection and often on the basis of incomplete information.  Such circumstances require the exercise of discretion that compels application of official immunity. Id. at 213.  (Emphasis added).

(2) Subjecting the city to liability for actions of police officers in responding to a 911 call would unquestionably inhibit the officers from exercising their independent judgment because liability would continue to stem from the officers’ performance of their duties.  If judiciary were to review conduct of immunized police officers to impose liability on city, the purpose of official immunity would be defeated. For policy reasons, immunity also protects the city as the officers’ public employer.

Chizewski v. Emergency Telephone System Board, 692 N.E.2d 691 (Ill. 1997).  Mother, child and father brought action against county emergency telephone system board for delay in response by police and paramedics due to misrouting of mother’s 911 emergency telephone call to city in which plaintiffs did not reside.  Intruder had broken into family home and had severely injured minor child. Police arrived 11 minutes after call, and paramedics arrived a few minutes later.  Illinois Emergency Telephone System Act provides that “no public agency… or unit of local government assuming duties of an emergency telephone board… shall be liable for any civil damages as a result of any act or omission, except willful or wanton misconduct, in connection with developing, adopting, operating or implementing any plan or system” required by Act.  Court held that the misrouting of an emergency call that may have contributed to an 11-minute response time by emergency personnel did not by itself constitute willful or wanton misconduct.

McCoy v. Hatmaker, 763 A.2d 1233 (Md. 2000), cert denied, 771 A.2d 1070 (Md. 2001).   Paramedic arrived on scene of 911 call for motorist in distress 9 minutes after having been dispatched, due to confusion about location of motorist and after having gone to incorrect address initially.  When on the scene, instead of following pre-hospital emergency protocols in determination re whether to resuscitate, paramedic pronounced patient motorist dead and proceeded to document the case as though the patient were dead on arrival.  Court affirmed lower court grant of summary judgment to city paramedic, police officers, mayor and city council.  Court held that:

(1) Under Maryland law, Good Samaritan Act grants civil immunity to a broad class of rescuers, to include paramedic and police officer (who was trained EMT) for errors while acting in scope of duties and while providing care without fee or compensation in an emergency.

(2) Under Maryland law, Fire and Rescue Company Act (similar to AS 09.65.070 (c)) further ensures that members of fire and rescue companies are immune from civil immunity for any act or omission in course of performing duties, except for those acts that are willful or grossly negligent.

(3) Error in medical judgment by paramedic, even though in violation of required protocols and even though it may have cost patient his life, did not constitute “wanton and reckless disregard for the life of that patient.

(4) Officer did not act with malice and thus did not lose official immunity.

Taylor v. Adams, 221 F.3d 1254 (11^th Cir.2001).  Suspected shoplifter was chased by store employees and apprehended.  When the police arrived and handcuffed the suspect, medically trained firefighters (“firemedics”) examined the suspect, who was sweating heavily and appeared to be having difficulty breathing.  The suspect stated that he did not need assistance and was placed in the paddy wagon, even though Fire Department procedure for patient having seizure required taking vital signs and calling for paramedics. Suspect later died en route to hospital from county jail.   Court held that even though the firemedics had failed to follow department policy with regard to taking vital signs and calling for paramedics, discretionary-function immunity under Alabama common law conferred immunity on the paramedics due to the fact that they had questioned the suspect and he had refused treatment.

Lamb v. City of Bloomington, 741 N.E.2d 436 (Ind.App.2001) Former tenants of apartment building destroyed by fire brought negligence action against mayor, fire chief, and fire department for injuries allegedly sustained when city fire department failed to respond in timely manner to a fire alarm, allegedly negligent performance of fire fighting duties, and negligent maintenance of equipment. The trial court dismissed claims based on governmental immunity, and tenants appealed. The Court of Appeals affirmed the trial court and held that city officials and fire department were immune from negligence claims based on common law and statutory discretionary immunity.

Eastburn v. Regional Fire Protection Authority, 80 P.3d 656 (Cal. 2003). Minor child and parents sued local fire authority and city for negligence in providing 911 emergency services.  Three year old child had suffered an electric shock while bathing, and although parents called 911 to report the injury, the 911 system failed to dispatch emergency personnel with emergency equipment, thereby denying the child early and prompt medical attention. The court held that the fire department and city had qualified immunity for dispatcher’s conduct based on California immunity statute 1799.107, which provides for qualified immunity from liability for public entities and emergency rescue personnel “providing emergency services” unless “the action taken was performed in bad faith or in a grossly negligent manner.”

V. How Will Alaska Courts Rule on Immunity Defenses When Municipal Employees are Alleged to Have Acted Negligently in Emergency Situations? 

A.   Fire

AS 09.65.070 (c) grants fire department employees immunity.

If civil action is based on fire department employees’ alleged negligence, then no basis for liability of municipality (Grogan)?

AS 09.65.070 (d) (6) grants immunity to dispatchers and other employees who provide 911 services, unless intentional act of misconduct or gross negligence.

AS 08.64.366 states that an act or omission of a mobile intensive care paramedic done or omitted in good faith does not impose liability upon the paramedic, supervising physician, hospital, or upon a federal, state, borough, city or other local governmental unit.

On scene firefighting tactical decisions are discretionary under 9.65.070 (d) (2) (Angnaboguk) and fire department’s decision re how many fire trucks and personnel to send will be discretionary (Tenakee Springs).

B.   Police

Does AS 09.65.070 (d) (6) confer immunity upon the police when they respond to a 911 call?

AS 09.65.070 (d) (2) confers discretionary immunity where on scene tactical decisions entail resource allocation decisions or decisions of police policy that are properly vested in the officials in charge.  (Angnaboguk).  An officer who responds to a report of an armed person threatening the life of another citizen must weigh many factors and exercises significant judgment and discretion. (Grogan).