State, Department of Corrections v. Cowles

151 P.3d 353, 2006 Alas. LEXIS 194, 2006 WL 3691725
Alaska Supreme Court·Decided December 15, 2006·No. S-11352·Published·Cited by 23 cases

Opinions

OPINION

FABE, Justice.

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 [356] holding 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 [357] and 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.

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State, Department of Corrections v. Cowles, 151 P.3d 353, 2006 Alas. LEXIS 194, 2006 WL 3691725 (Ala. 2006).

151 P.3d 353 (State, Department of Corrections v. Cowles) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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State, Department of Corrections v. Cowles
151 P.3d 353 (Alaska Supreme Court, 2006)