State, Department of Corrections v. Cowles

OPINION

I. INTRODUCTION

A parolee murdered his former girlfriend and then shot himself. The issue before us is whether the State of Alaska may be held liable in tort for a crime committed by a parolee under its supervision. The State urges us to overrule our holding in Division of Corrections v. Neakok that the State owes a duty of care in supervising its parolees.1 The State also contends that it is immune from suit and that it is entitled to judgment as a matter of law on the issue of causation. Because we find that at least some of the State’s alleged acts of negligence are shielded by discretionary function immunity, we vacate the superior court’s order denying the State’s motion for summary judgment. We therefore overrule our holding in Neakok that the “selection of conditions” of parole are operational activities not entitled to immunity.2 While we decline to overrule our *356holding in Neakok that the State owes a duty of care to the victims of parolees under its supervision, we emphasize that this duty should be narrowly construed. Based on the facts of this case, we conclude that the trial court properly denied summary judgment on the issue of duty. We remand for a ruling on causation in light of the superior court’s discretionary function immunity rulings.

II. FACTS AND PROCEEDINGS

In September 1991 Calvin McGrew and four others were driving a jeep that caught fire near the home of Jacqueline and Donald Boschert on the Parks Highway.3 The Bosc-herts helped them put out the fire and allowed the five people into their house to use the phone. McGrew grabbed Mrs. Boschert and put a knife to her throat. The group tied the Boscherts up, stole some personal items, and escaped in the Boscherts’ Cadillac and Ford pickup truck.

McGrew pleaded no contest to robbery in the first degree and other charges. He received a presumptive seven-year sentence for the robbery charge.4 McGrew was released on mandatory parole on November 23, 1996 subject to thirteen general parole conditions and fourteen supplemental conditions.

When McGrew was released from prison, Patricia Beckner was assigned to serve as his parole officer. As required by Department of Corrections (DOC) policy, Beckner filled out a risk assessment form to determine McGrew’s supervision level.5 Beckner failed to include McGrew’s prior juvenile convictions in the calculation of the risk score. She also incorrectly assigned McGrew a “medium” supervision level even though the risk score total on the form corresponded to a “maximum” supervision level. Under DOC policy, medium supervision requires parolees to have face-to-face contact with the parole officer at least once a month, while maximum supervision requires twice monthly face-to-face contact and a field visit at least once every four months.6

DOC policy also required that a risk reassessment be completed every six months.7 Like her initial risk assessment, Beckner’s reassessments were incorrectly scored. Beckner also filled out a risk reassessment in August 1998 even though McGrew had absconded from parole at that time and she had not had contact with him for several months. At the time of the murder, Beckner had not completed a reassessment form for McGrew in more than ten months.

Between his release from prison in November 1996 and March 1998, McGrew appears to have complied with his parole conditions with the exception of a few missed appointments, positive urine tests for marijuana, and “no shows” for urinalysis appointments. During this time McGrew lived with his girlfriend Shila Davis or her parents.

McGrew did not appear for urine testing in March 1998 and failed to report to Beckner in April and June 1998. Beckner learned from McGrow's employer that he had been fired for not showing up. On July 17, 1998, Beckner filed a parole violation report. A parole board member issued a parole arrest warrant four days later. When McGrew had not been arrested by November 1998, Beck-ner put his file in “abscond” status.

McGrew was arrested on May 13,1999. A parole board member conducted a preliminary hearing on May 21,1999 to determine if he should remain in custody until his full board revocation hearing. At the hearing, McGrew admitted to five parole violations *357and presented a release plan proposing that he continue to work, live with Shila Davis, and support his family. Beekner submitted a letter from Davis asking that MeGrew be released. The letter stated that she and MeGrew had been together for seven years, that they had recently had twin daughters, and that she needed him at home to help raise their children. The parole board member released MeGrew on May 21, 1999 with the additional condition that he present proof of employment to Beekner upon request.

On June 8, 1999, Davis filed a petition in the trial court requesting a protective order. She alleged that MeGrew had abused her and requested that he be barred from contacting her or coming to her home. On June 13, 1999, Davis called 911 alleging MeGrew had hit her. On July 23, 1999, Davis filed another petition for a protective order, and the district court granted an ex parte protective order. The next day, on July 24, 1999, MeGrew shot Davis and himself. One or both of their bodies fell on their three-month-old twins. One of the twins survived, but the other suffocated.

At the time of the murder, parole officer Beekner was unaware that Davis had filed domestic violence petitions against MeGrew or that the couple had separated. Beekner stated in her affidavit filed in the resulting tort case that while supervising MeGrew between his release after the preliminary hearing in May and the murder in July, she “attached a great deal of significance to what appeared to be a long-term stable relationship, and the recent arrival of twins.” Beekner further stated: “I felt that Calvin’s relationship with Shila, and his continued employment, were good indicators that he might succeed on parole and afterwards.” MeGrew had reported to Beekner as scheduled on May 24 and June 21. He did not tell Beekner about the domestic violence problems. But on his June 21 monthly report form he did note that he had had contact with the police, stating “[t]hey came to my house to arrest me.” In her affidavit, Beekner stated that she had “no current recollection of this entry or any discussion about it with Calvin, but [she] would have asked him about it and ... feel[s] sure that [she] did.” She stated that she believed that the visit from the police was related to “on-' going confusion” between MeGrew and Darryl Poindexter8 and did not indicate to her that MeGrew had committed new crimes or significant parole violations. In her deposition, Beekner stated that she remembered MeGrew submitting this report and that she believed that the police visit was related to the “mix-up of identities” between MeGrew and Darryl Pointdexter, but she also agreed with her earlier testimony that she had no specific recollection of McGrev^s entry and that the police visit could have been in response to a domestic violence complaint by Shila Davis. In response to the June 21 report, Beekner took no action to find out from the police why they had tried to arrest him. On July 22, 1999, two days before the murder, MeGrew failed to report as scheduled. Beekner took no action in response to the missed visit.

Ebony Cowles, the personal representative of the Estate of Shila Davis and guardian of the surviving child, filed suit against the State Department of Corrections and the Municipality of Anchorage. The complaint alleges that the State committed negligence by failing to implement and enforce an appropriate parole plan, to require appropriate post-release therapy, to enforce parole violations, to properly supervise MeGrew, and to revoke his parole.

The State moved for summary judgment. The State argued that our decision in Neak-ok should be overruled and therefore that the State owes no duty of care to victims of crimes committed by parolees. The State also argued that it was immune from suit and that it was entitled to judgment as a matter of law on the issue of causation. The superi- or court denied the motion for summary judgment. We accepted the State’s petition for review.

III. STANDARD OF REVIEW

“We review denials of summary judgment motions de novo to determine *358whether 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.” 9 We review de novo the existence and extent of a duty of care.10 Whether a governmental act is entitled to discretionary function immunity is also a matter of law that is reviewed de novo.11

We overrule a prior decision of this court when “we are ‘clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent.’ ”12

IV. DISCUSSION

We addressed in Neakok13 the question whether the State can be held liable for negligent parole supervision. In that case, the relatives of three people murdered by a mandatory parolee sued DOC for negligence, alleging, among other things, that DOC failed to impose appropriate parole conditions and to supervise the parolee adequately.14 We held in Neakok that the State owes a duty of care to a parolee’s foreseeable victims and that the State is not immune from suit for negligence in the selection of parole conditions and the supervision of parolees.15 In this appeal the State asks us to overrule Neakok by finding that the State owes no duty of care to parolees’ victims and that discretionary function immunity applies to all of Cowles’s claims, including those alleging negligent imposition of parole conditions and negligent parole supervision. The State also argues that it was entitled to judgment as a matter of law on the issue of causation.

Although we usually determine whether a tort duty exists before reaching the question of discretionary function immunity,16 in this case we analyze immunity first because doing so clarifies the public policy considerations that also bear on our duty analysis.17

A. Discretionary Function Immunity

Under the Alaska Tort Claims Act, the State is immune from suit for tort claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused.”18 We have recognized that “the term ‘discretionary’ in AS 09.50.250 should not be interpreted broadly to encompass all state actions involving discretion.”19 Instead, we examine each act or function to determine whether it can be described as “planning” or “operational.”20 “A planning decision is one that involves policy formulation,” while an operational decision involves the execution or implementation of a policy already formulated.21 When statutes and regulations do not require officials to execute a predetermined policy and instead delegate authority to decide policy matters, the resulting determinations are planning decisions.22 *359Only acts or functions occurring at the planning level are entitled to immunity as discretionary functions under AS 09.50.250.”23 In this way, discretionary function immunity “ensures that courts do not step into the policy roles committed to other branches of government.”24

The State argues that discretionary function immunity bars all claims in this suit. Cowles responds that the State is not immune because parole supervision involves operational acts rather than planning decisions. We do not determine whether an entire class of decisions, such as those related to parole supervision, are entitled to immunity.25 Rather, the allegedly negligent decisions in a particular case must be examined individually to determine if they are “planning” or “operational” in nature.26 Cowles’s complaint alleges that the State and DOC failed to implement and enforce an appropriate parole plan for MeGrew, to require appropriate post-release therapy, to enforce and report parole violations, to act in response to McGrew’s dangerous behavior, to comply with the statutes, regulations, and guidelines governing supervision of parolees, and to revoke McGrew’s parole. The parties have not systematically addressed each of these individual allegations in their briefs. We set forth here the boundaries of discretionary function immunity as it relates to the decisions involving parole supervision addressed in Cowles’s complaint. On remand, the superior court should make a separate determination for each of Cowles’s allegations following the principles announced in this opinion and in our other decisions concerning discretionary function immunity.27 The allegations of negligence in Cowles’s complaint can be placed into two groups for the purpose of the discretionary duty analysis: decisions made by the parole board or its members, and decisions made by McGrew’s parole officer.

1. Decisions made by the parole board

Some allegations in Cowles’s complaint appear to refer to actions or omissions on the part of the parole board. These include failure to impose appropriate parole conditions, to require appropriate post-release therapy,28 and to revoke McGrew’s parole.29 All of these decisions are protected by discretionary function immunity. As pointed out in the dissent in Neakok written by Justice Matthews and joined by Chief Justice Rabinowitz, decisions regarding conditions of parole “are akin to decisions which a sentencing judge must make in deciding on the terms of a sentence of probation and are plainly discretionary.”30

Determining the appropriate parole conditions upon release and deciding whether or not to revoke an offender’s parole or whether or not to release an offender pending a revocation hearing are all planning decisions. They require careful weighing of policy considerations, including public safety, the need to rehabilitate and reintegrate offenders, the allocation of resources available to treat and *360supervise parolees, and potential prison overcrowding.31 The purpose of discretionary function immunity — to maintain the separation of powers between the judiciary and the executive or legislative branches and to give agencies latitude to perform their policy-making functions without fear of liability32— dictates that such determinations be shielded with immunity. We therefore overrule the holding in Neakok that “[formulation of [a] parole plan, and selection of special [parole] conditions” are not planning activities entitled to immunity.33

In Neakok, our analysis of duty and immunity applied only to parole officers, not the parole board, because no reasonable jury could find the board at fault in that case.34 But the language in Neakok was broad. Because the parole board makes decisions about parole conditions, Neakok could be read to apply to the board. We therefore overrule this holding to ensure that officials are not pressured to “err on the side of restrictiveness when considering discretionary parole.” 35 We are clearly convinced that this rule was originally erroneous and that departing from our holding in Neakok would do more good than harm by preventing courts from intruding on policy-making activities committed to other branches of government.36

2. Decisions made by the parole officer

Cowles’s complaint also alleges that Beck-ner committed negligence by failing to enforce and report parole violations, to comply with the statutes, regulations, and guidelines governing the supervision of parolees, to act in response to McGrew’s dangerous behavior, and to seek to revoke his parole. The parties dispute whether Beckner⅛ acts were discretionary or operational. In asserting that the State is not entitled to immunity, Cowles focuses on three allegedly negligent omissions on the part of Beckner: (1) failure to report parole violations and seek revocation; (2) failure to follow DOC policies governing offender classification and supervision standards; and (3) failure to investigate potential parole violations and ensure McGrew’s compliance with the conditions of parole.

Cowles argues that Beckner was required by DOC policy to respond to McGrew’s parole violations, and therefore that her failure to recommend parole revocation was not immune. The State contends that a parole officer’s decision to report a parole violation or to pursue revocation is immune from suit because it requires judgment and discretion to determine “the point at which counseling, ... warnings and other means to obtain compliance with conditions are unsuccessful.” The State’s characterization of the parole officer’s function is accurate with respect to the officer’s response to minor parole violations, but not serious violations. DOC Policy 902.14 mandates that an officer “shall” file a petition to revoke parole if there is probable cause that the offender committed a “serious violation” but is given discretion whether to initiate revocation action if the offender commits a “minor violation.”37 Under the policy, a “serious violation” includes all felony behavior, “[c]lass A misdemeanor(s), except in the instance where the supervising probation officer’s discretionary authority may denominate the misdemeanor as a minor violation,” and technical violations that constitute a criminal act or jeopardize the property or safety of another person.38 Minor violations include class B *361misdemeanors, state or municipal code violations, and technical parole violations.39

A parole officer therefore has no discretion, and thus no immunity, in responding to felony behavior or other actions that jeopardize the property or the safety of another person; in such eases the officer is simply executing a pre-existing policy. However, the officer can exercise judgment in deciding whether to petition to revoke parole where a client commits a minor violation. The exercise of some discretion does not in itself confer immunity.40 Nevertheless, when the parole officer is given a choice, the decision whether or not to seek to revoke parole involves the same weighing of policy matters that a parole board engages in when it makes the final parole revocation decision. Beckner was not aware of a parole violation that required her to petition to revoke MeGrew’s parole under DOC policy.41 Her decision not to pursue revocation in response to MeGrew’s technical violations, including his missed appointment two days before the murder, is therefore protected by discretionary function immunity.

Cowles’s complaint also alleges that Beckner failed to comply with the regulations and guidelines governing parole supervision. She argues on appeal that no immunity attaches to Beekner’s failure to accurately complete the risk assessments for McGrew and to follow up on the statement on his monthly report form that the police had come to his house to arrest him. The day-to-day supervisory activities of a parole officer, such as filling out risk assessment scales and investigating the apparent commission of a serious violation are operational duties not entitled to immunity. DOC policies mandate that the officer use the risk assessment scales to assign a supervision level to each case, and set forth the extent and type of contact required to supervise offenders based on their risk classification.42 Similarly, DOC Policy 902.14 requires officers to investigate the charges and circumstances surrounding “[a]n offender’s arrest for, or apparent commission of,” a serious or minor violation, and to seek revocation if there is probable cause that the offender committed a serious violation.43 Discretionary function immunity does not apply to these activities because a parole officer is not required to choose between competing policy concerns in performing these duties, but merely to exercise some judgment in carrying out established DOC directives.44 This conclusion finds support in the decisions of other courts that have refused to apply discretionary function immunity to the day-today functions of probation and parole officers.45 Accordingly, the State is not immune *362from suit based on Beckner’s alleged negligence in filling out the risk assessment forms. It is unclear whether Beckner was given notice of the apparent commission of a violation because there is a question of fact as to what happened at the meeting at which McGrew gave Beckner the monthly report stating that the police had come to arrest him and whether, based on that interaction, Beckner could conclude that the report did not indicate an apparent commission of a parole violation. Because this case reaches us from a denial of summary judgment, we must view all facts in the light most favorable to the non-moving party. Issues of material fact preclude summary judgment for the State on this issue.

However, seeking out possible parole violations of which the parole officer has no notice involves planning decisions that are entitled to discretionary function immunity. A parole officer must make policy judgments in deciding how to allocate time and resources among various clients.46 And the officer must balance the 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.47 We follow Justice Matthews’s Neakok dissent in declining to impose liability “for an alleged failure to seek out parole violations.”48 Accordingly, the State may not be held liable for Beckner’s alleged negligence in failing to take affirmative action to discover parole violations of which she had no notice.

B. Duty

The State contends that it owes no duty of care to the victims of crimes committed by parolees. It urges us to overrule our contrary holding in Neakok, arguing that the reasoning of our decision in Sandsness49 suggests that this part of Neakok is erroneous.

In Sandsness, a juvenile offender committed murder not long after he had been released from custody.50 The victim’s relatives sued the State for negligence, alleging that the State knew the juvenile posed a threat and should have asked the court to extend his commitment.51 We held that the State had no duty to use due care in deciding whether to extend the commitment of a juvenile offender.52 We reasoned that imposing such a duty would conflict with the State’s goal of rehabilitating juvenile offenders by causing the State to “ ‘err on the side of excessive detention to avoid negligence suits or judgments.’ ”53 The State argues that the same concerns animate this case. But Sandsness involved a claim of negligent release, not negligent parole supervision.54 Unlike the situation in Sandsness, there is no danger that the prospect of state tort liability will be a factor in deciding whether to incarcerate an offender. The State is immune from liability for negligence in the parole board’s decisions concerning parole conditions and parole revocation. Allowing recovery for a parole officer’s failure to comply with DOC policies governing parole supervision does no more than encourage adherence to those policies, reinforcing rather than distorting the balance between public safety and *363rehabilitation fashioned by the legislature and DOC.

The State points out that in Sandsness we relied on the Vermont Supreme Court in Sorge v. State55 and argues that we should adopt the reasoning in Sorge to overrule Neakok. The Sorge court declined to find a duty in a non-detention juvenile corrections context because the primary function of probation and parole is to “rehabilitate conduct rather than control it.”56 The reasoning of Sorge was relevant to our holding in Sandsness because Sandsness was a negligent release case that presented the danger that imposing liability would result in excessive detention. But our approach in the present case is equally protective of the rehabilitative function of supervision programs as that used in Sorge. Sorge uses a blunt instrument to protect the rehabilitative goal of parole programs: it declines to impose liability in any context by refusing to impose a duty to supervise parolees. We adopt a more targeted approach by imposing such a duty but using discretionary function immunity to ensure that the rehabilitative purpose of parole will not be jeopardized.

Nor are we “clearly convinced”57 that our determination in Neakok that the State has a duty to exercise due care in supervising parolees is erroneous. The proposed final draft of the Restatement (Third) of Torts includes a comment explicitly stating that “those who supervise parolees, probationers, or others in prerelease programs ... are appropriately held to an affirmative duty of reasonable care.”58 Although there is a split of authority on this question, several courts in other jurisdictions have imposed a duty of care for the supervision of parolees.59

At least one court has suggested that before liability can attach the parole officer must have a special relationship to the victim or victim class that creates a duty beyond that owed to the public as a whole.60 The “victim class” in that case was defined to include young boys who might have frequent contact with the offender.61 This approach stems from the importance of foreseeable harm in the determination of whether to impose a tort duty.62 In Neakok, we held that a duty of care is owed to victims who are foreseeable, though not necessarily specifically identifiable.63 We noted that in that case the victims “were foreseeable as more than simply members of the general public” because they were residents of the isolated community into which the offender was released, and because one of the victims had been identified by a prison employee as particularly at risk.64 Forgiving the opinion’s broad dicta, we read Neakok to impose a duty only where officials know, or reasonably should know, that a parolee poses a danger to a particular individual or identifiable group. Thus, our foreseeability analysis in Neakok is quite similar to the requirement of a particularized relationship to an identifiable “victim class” adopted by some jurisdictions and leads to similar results. MeGrew’s victims were foreseeable and identifiable as more than simply members of the general public because they were members of MeGrew’s household. Similarly, in the companion case C.J. v. State, Department of Corrections, it was foreseeable that if not properly supervised, the offender, a convicted *364rapist, might rape a woman in the community into which he was released.65

The dissent in Neakok suggests that a duty should be imposed only where a parole officer receives notice of imminent peril, akin to our cases involving the duty of a police officer to respond to a known life-threatening situation.66 But parole officers, unlike police officers, have a special relationship to parolees under their supervision that gives rise to a duty of care.67 The closest analogy to the Neakok dissent’s approach is our decision in Dinsmore-Poff v. Alvord, where we held that parents who know that their child has a tendency towards violence can be held liable for harm committed by that child only if “the parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm.”68 But parents are in quite a different position from parole officers. Parole officers are trained professionals employed by an agency whose job it is to formulate supervision policies that promote rehabilitation while protecting the public from the offenders in its charge. Most important, unlike parents, the State is immune from liability for all discretionary planning or policy decisions made by parole officers; liability will attach only where a parole officer commits negligence in performing operational functions that implement DOC’s policies.

The dissent suggests that liability for negligent supervision could lead the State to err on the side of continued detention to avoid liability.69 But discretionary decisions about parole release, conditions, and revocations are immune from liability. Because neither the parole board nor parole officers are exposed to liability for policy decisions to release, set conditions, or revoke parole, our decision creates no incentive for additional confinement. And if the State is concerned about possible liability from negligent supervision associated with officers’ operational duties, adequate training can offer a mechanism to ensure that officers adhere to department policies.70 We recognize that parole supervision is a difficult job. But we believe that imposing a duty of care while providing for discretionary function immunity for policy decisions will protect the State’s rehabilitative goals while encouraging parole officers to carry out their mandated operational duties in a non-negligent manner.

Nothing in our case law or the cases in other jurisdictions convinces us that our duty analysis in Neakok is erroneous. We therefore decline to overrule our holding in Neak-ok that the State has an actionable duty of care in supervising parolees. Our case law has established factors, commonly referred to as the D.S.W. factors, to determine whether a duty of care exists.71 But as the State has recognized, we adhere to precedent without re-applying the D.S.W. factors when we have already addressed the issue of duty in a closely related case.72 Neakok squarely addressed the issue of negligent supervision and established a duty to exercise due care in supervising parolees. Having found that this holding does not meet the standard for overturning precedent, we decline to engage in the dissent’s analysis of the D.S.W. factors as if Neakok had not been decided. The State appealed the trial court’s denial of summary judgment on all three asserted independent *365grounds: duty, discretionary function immunity, and causation. Even though we uphold the trial court’s denial of summary judgment on the issue of duty, we are still compelled to examine its ruling on discretionary function immunity. And as the State argued in its summary judgment motion, “discretionary function immunity addresses the same public policy issues found in the duty analysis.” Thus, we address many of the same public policy implications raised by a duty analysis through our discussion of discretionary function immunity.

We therefore affirm the trial court’s ruling on the issue of duty: there is sufficient evidence to withstand summary judgment. "When viewed in the light most favorable to Cowles, the record suggests that Beckner knew of the relationship between Davis and McGrew and knew that the police had come to arrest McGrew. This evidence raises a genuine issue of material fact as to whether Beckner knew or reasonably should have known that McGrew posed a danger to Davis and her family and whether Beckner breached her duty.

C. Causation

The State argues that even if it breached a duty to Cowles and is not immune from liability for that breach it is nevertheless entitled to summary judgment because as a matter of law its actions did not cause Cowles’s injuries. Cowles argues that the issue of causation is a question of fact for the jury-

We have held that “negligent conduct may properly be found to be a ‘legal cause’ of a plaintiffs injury if the negligent act was more likely than not a substantial factor in bringing about (the) injury.” 73 The substantial factor test is satisfied by showing “ ‘both that the [injury] would not have happened “but for” the defendant’s negligence and that the negligent act was so important in bringing about the injury that reasonable men would regard it as a cause and attach responsibility to it.’ ”74

The State contends that the connection between its acts and the murder was too attenuated to establish causation, particularly since Beckner could not have revoked McGrow’s parole without the independent action of the parole board. 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 Cowles may only rely on non-immune acts to establish causation. We therefore remand the case to the superior court for a ruling on causation in light of its discretionary function immunity rulings. Although Cowles’s theory of liability requires an extended chain of causation, we cannot say that as a matter of law the State’s alleged negligence did not cause her injuries. Reasonable jurors could find that Beckner would have discovered the domestic violence complaints if she had supervised McGrew properly. They could further find that this information would have changed Beckner’s and the parole board’s view of McGrew since, according to her affidavit, Beckner “attached a great deal of significance” to what she thought was a long-term stable relationship with Davis indicating he might succeed on parole. Reasonable jurors could find that once the domestic violence problem was known the parole board would likely have revoked McGrow's parole, thereby preventing the murder. Accordingly, material questions of fact preclude summary judgment for the State on the issue of causation.

V. CONCLUSION

Because the State is entitled to discretionary function immunity with respect to at least some of the allegations in the complaint, we VACATE the superior court’s order denying the State’s motion for summary judgment. We REMAND for further proceedings consistent with this opinion.

BRYNER, Chief Justice, with whom CARPENETI, Justice, joins except with regard to the last paragraph, concurring.

MATTHEWS, Justice, dissenting in part.