author: CARPENETI, Justice.

text:
    Daniel Lee HINSBERGER, Appellant, v. STATE of Alaska, Appellee.
    No. S-10130.
    Supreme Court of Alaska.
    Aug. 23, 2002.
    Carol A. Brencekle, Kenai, for Appellant.
    Venable Vermont, Jr., Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENET1I, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Daniel Hinsberger brought suit against the State of Alaska for medical negligence and negligent infliction of emotional distress (NIED) for treatment Hinsberger received while incarcerated. The superior court granted the state's motion for partial summary judgment on the issue of medical negligence because the state submitted expert testimony that the care provided to Hinsber-ger met the appropriate standard of care, and Hinsberger did not rebut that evidence. The superior court then granted another motion for partial summary judgment in favor of the state on the NIED claim because Hinsberger would be unable to establish breach of a preexisting duty in light of the summary judgment on the medical negligence claim. Because Hinsberger failed to demonstrate how he would prove breach of a preexisting duty, we affirm the superior court's grant of summary judgment.

II. FACTS AND PROCEEDINGS

A. Facts

On December 20, 19983, in the course of a physical altercation with his ex-wife, Daniel Hinsberger was kneed in the groin and he passed blood in his urine for about two days. He was charged with assault in the fourth degree in connection with the incident, and in January 1994 he was taken into custody and transported to the Wildwood Pretrial Facility (Wildwood). Hinsberger was examined by Wildwood medical staff for complaints of severe pain on his right side and blood in his urine the day he was incarcerated. Hinsber-ger was released from custody the next day and the criminal charges were later dismissed. Hinsberger was again incarcerated a few days later for a different offense and transported to Wildwood.

On January 11 Hinsberger complained of severe pain on his right side and was seen by Wildwood medical staff around 8:80 a.m. Hinsberger was transported to Central Peninsula General Hospital (Central Hospital) where he was seen by Dr. Cynthia Milbrant at 11:80 a.m. Hinsberger was then admitted to Central Hospital under the care of Dr. Gonzalo Fraser. That same day, an intravenous pyelogram (IVP) was obtained that revealed an obstruction: Hinsberger was released on January 12 and transported back to Wildwood. Also on January 12 he was transferred to Cook Inlet Pretrial Facility (Cook Inlet) in Anchorage so that he could receive medical care. That same day, Hins-berger was seen by Cook Inlet's medical personnel at approximately 8:00 p.m.

On January 14 Hinsberger was seen by Dr. Kevin Tomera in Anchorage. Dr. Tom-era diagnosed Hinsberger with kidney stones that would probably pass in one month and recommended that Hinsberger drink a lot of fluids. Dr. Tomera advised Hinsberger to return if the kidney stones did not pass in one month because Hinsberger would need an IVP and probably stone manipulation. On the same day, Hinsberger was transferred to Homer where he went to the emer-geney room and was seen by Dr. Paul Ene-boe around 9:00 p.m. Hinsberger was then transported to Wildwood and was seen by medical staff after his arrival.

Hinsberger claims that his pain medications 'on January 18 wére inappropriately interrupted. Then, on January 19 Hinsber-ger was placed in medical segregation per Dr. Fraser's orders. Hinsberger was placed back on his pain medication on January 20. On January 24 Hinsberger was transferred back to Cook Inlet where he submitted his first request for health care that evening. Hinsberger filed a second request for health care on January 26. Hinsberger also claims to have filed on the same day a prisoner grievance that was returned to him because he used the wrong form. Hinsberger filed his third request for health care later that same day. On January 30 Hinsberger filed his fourth request for health care. Hinsber-ger filed a fifth request for health care on February 8. Hinsberger also claims to have filed a second prisoner grievance on February 8 that was again returned to him because it was filed on the wrong form. The State of Alaska denies this claim.

On February 10 Hinsberger filed his sixth and seventh requests for health care. Hins-berger was seen by Dr. Tomera and received a follow-up IVP on February 11. Dr. Tom-era performed surgery on Hinsberger on February 15 in which a stent was inserted to alleviate the right renal obstruction to Hins-berger's kidney. Hinsberger required follow-up surgery on February 25 in which Dr. Tomera "performed a right pyeloplasty to alleviate the right ureteral pelvic junction obstruction." Hinsberger was hospitalized until March 2 when he was discharged and transported back,to Cook Inlet.

Hinsberger claims that he slipped on a piece of food on the floor on March 4 after his return to Cook Inlet and that he experienced a burning and ripping sensation in the area of the surgical incision. He also claims to have slipped on a wet floor on March 5 causing him to experience considerable pain in the abdominal area. Hinsberger claims that he woke up in excruciating pain on March 6 and when he contacted the shift supervisor to request medical attention he was placed in the "drunk tank." On March 9 Hinsberger was transferred back to Wild-wood and ultimately released on March 11.

B. Proceedings

In January 1996 Hinsberger brought suit against the State of Alaska alleging negligence due to delays in medical treatment and negligent infliction of emotional distress. The state moved for partial summary judgment on the claim of medical negligence in November 2000. The state attached the affidavit of Dr. Greg O. Lund to the motion. In the affidavit, Dr. Lund concluded that Hinsberger's condition was appropriately managed by the state and that Hinsberger received the prescribed medications in an appropriate fashion. Dr. Lund summarized that all of the care provided to Hinsberger during his incarceration was "appropriate, timely, and well within the standard of care." It appears from the record that Hinsberger did not oppose this motion. The superior court granted the state's motion for partial summary judgment on the issue of medical negligence.

In January 2001 the state moved for partial summary judgment on the remaining claim of NIED. The state argued that Hins-berger was no longer able to claim NIED as a result of physical injury because the superi- or court granted summary judgment in favor of the state on the claim of medical negligence. In the absence of any physical injury caused by the state, the state argued that Hinsberger's only claim was that NIED resulted from a breach of a preexisting duty owed to him by the state. However, the state asserted, Hinsberger would be unable to establish the breach of a preexisting duty because the grant of summary judgment in favor of the state on the issue of medical negligence established that the state had met the requisite standard of care.

Hinsberger opposed the motion, arguing that the issue was not one of medical negligence but whether Hinsberger was provided with the health care services required to prevent or alleviate pain and suffering. The superior court granted partial summary judgment in favor of the state on the issue of NIED. Because the superior court disposed of all the claims on motions for summary judgment, the court entered final judgment in favor of the state.

Hinsberger appeals only the superior court's grant of the state's motion for partial summary judgment on the NIED claim. He does not appeal the earlier grant of partial summary judgment in the state's favor on the issue of medical negligence.

IIL STANDARD OF REVIEW

We review an appeal from summary judgment de novo). "A superior court's grant of summary judgment must be affirmed if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law." "All reasonable factual inferences must be drawn in favor of the party opposing summary judgment." If we must answer questions of law, we will "adopt the rule of law which is most persuasive in light of precedent, reason and policy."

IV. DISCUSSION

The Superior Court Did Not Err in Granting the State's Motion for Partial Summary Judgment.

Hinsberger argues that the state failed to provide him with required medical services to prevent his pain and suffering. He asserts that the state failed to provide prescription medications at the appropriate intervals and that his requests for medical treatment were denied because he failed to file the proper form. Because the state owed Hinsberger a duty to provide him with medical care during his incarceration, he argues that he falls under the preexisting duty exception to the rule barring recovery for NIED without physical injury.

In Hancock v. Northeutt, we held that damages are not awarded for NIED in the absence of physical injury. However, we have allowed two exceptions to this rule: the preexisting duty exception and the bystander exception. Hinsberger relies on Chizmar v. Mackie in arguing that he has a viable claim for NIED. In Chigmar, we held that a plaintiff can recover for emotional distress caused by mere negligence "where the defendant owes the plaintiff a preexisting duty."

The state owed Hinsberger a duty to provide him with necessary medical care under AS 38.30.011. But establishing that the state owed Hinsberger a duty is only the first step in the analysis. The next step is to consider whether the duty was breached. We have held that "iJn order to maintain a NIED claim there must be a breach of a duty arising out of a pre-existing contractual or fiduciary relationship."

Hinsberger did assert a claim for medical negligence, claiming that he was injured because of the state's delay in providing him with medical treatment, but his claim was rejected on the state's motion for partial summary judgment.

The state moved for partial summary judgment on the negligent medical care claim, attaching the affidavit of Dr. Greg 0. Lund, a urologist certified by the American Board of Urology, with its motion. Dr. Lund opined that Hinsberger received all of his medications as prescribed and that he received treatment in a timely manner, "well within the standard of care." Hinsberger failed to respond to the state's motion for partial summary judgment. The superior court granted the state's motion for partial summary judgment on the issue of medical negligence. Because Hinsberger could not make a separate claim for NIED based on breach of a preexisting duty where the superior court previously found "that there was no medical negligence," the superior court properly granted 'the state's motion for summary Judgment on the NIED claim.

We note that the state was not entitled to summary judgment on its first motion, concerning medical negligence, merely because Hinsberger failed to respond to the motion. We have held that a movant does not have a right to summary judgment merely because the non-moving party fails to respond. Here, the state offered the affidavit of Dr. Lund that the treatment offered to Hinsber-ger met the applicable standard of care. Dr. Lunds affidavit addressed not only the competency of medical care that Hinsberger received from physicians and nurses but also the appropriateness and timeliness of Department of Corrections's responses to Hins-berger's various complaints and requests for medication or additional treatment. Hins-berger failed to controvert Dr. Lund's opinion with expert affidavits, Therefore, the superior court found that the state did not breach its duty to Hinsberger in providing medical care.

This case is similar to Kendall v. State, Division of Corrections. In Kendall, two defendants moved for summary judgment on a medical malpractice claim offering an advisory panel report in which the experts stated that Kendall's care had been proper. The superior court granted summary judgment in favor of the defendants. We affirmed the grant of summary judgment holding that, once the defendants presented an expert opinion that Kendall was properly cared for, the burden shifted to Kendall to demonstrate how she would prove her case. We stated that the "defendants' motion was sufficient to establish the absence of a genuine issue as to negligence" and Kendall "presented no expert affidavits and did not show, based on the evidence that was presented, that a reasonably arguable case of medical negligence existed."

Hinsberger has not appealed the grant of summary judgment on the issue of medical negligence. Because the superior court ruled that the state did not breach its duty as a matter of law, Hinsberger will be unable to prove a claim for NIED, as he will be unable to establish a breach of the preexisting duty.

Hinsberger also claims that his requests for medical attention were ignored by the state because he used the wrong form or failed to follow the appropriate procedure. But he fails to show that the state breached any preexisting duty by these acts. And he fails to offer any explanation, even if the allegations are true, of a link between these actions and his claim for NIED. In short, Hinsberger fails to allege causation.

Finally, Hinsberger argues that he is owed a duty under Cleary v. Smith that is separate and distinct from the duty owed to him under AS 88.80.011(4). Hinsberger argues that Cleary, which involved a court-sanctioned settlement agreement, imposes a duty on the state to provide medical services that are comparable in quality to those available to the general public and which are required to prevent or alleviate pain and suffering. In contrast, AS 38.80.011(4) requires the state to provide necessary medical services to prisoners. Even if the Cleary settlement agreement did impose an additional duty on the state, Hinsberger has failed to show how this duty was breached in light of Dr. Lund's affidavit and the case law discussed above.

v. CONCLUSION

Because Hinsberger did not claim that he suffered any physical injury as the result of the state's alleged negligent infliction of emotional distress upon him, he was required to show that the state had a preexisting duty to him that it breached. The source of such a duty is AS 88.30.011, requiring the Department of Corrections to provide necessary medical services for prisoners in jail. But the superior court had already correctly ruled that the state had not breached its duty to provide necessary medical services. Therefore, Hinsberger failed to show how he could prove his NIED case following the grant of summary judgment to the state on the issue of medical negligence. For this reason, we AFFIRM the superior court's grant of summary judgment in the state's favor on the issue of NIED.

MATTHEWS, Justice, not participating.

      . Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017 (Alaska 1998).

      . Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 496 (Alaska 1998).

      . Id.

      . Ganz, 963 P.2d at 1017 (internal quotations omitted).

      . 808 P.2d 251 (Alaska 1991).

      . Id. at 257.

      . See Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038, 1043 (Alaska 1986); Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995). The bystander exception is not applicable to the present case as Hinsberger is not claiming that he suffered emotional distress from witnessing harm to a close relative.

      . 896 P.2d 196 (Alaska 1995).

      . Id. at 203.

      . AS 33.30.011, titled "Duties of commissioner," states in relevant part:
      The commissioner shall

      (4) provide necessary
      (A) medical services for prisoners in correctional facilities or who are committed by a court to the custody of the commissioner, including examinations for communicable and infectious diseases....
      Because there is a statutory duty imposed on the state, it is unnecessary to analyze the duty under the common law. See Karen L. v. Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 953 P.2d 871, 875 n. 9 (Alaska 1998); M.A. v. United States, 951 P.2d 851, 853 (Alaska 1998).

      . Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999).

      . Martinez v. Ha, 12 P.3d 1159, 1162 (Alaska 2000).

      . 692 P.2d 953 (Alaska 1984).

      . Id. at 954.

      . Id.

      . Id. at 955.

      . Id.

      . Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000) (stating that "[als with any negligence case, the plaintiff must establish (1) a duty of care; (2) breach of the duty; (3) causation; and (4) harm").

      . No. 3 AN-81-5274 Civ. (Alaska Super., December 21, 1990).

      . Id. at 1.


source: Caselaw Access Project

license: Public Domain

text:
    Stanley C. FENNER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Division of Public Works, Office of Street Maintenance and Vince Mee, Superintendent, Appellees.
    No. S-10064.
    Supreme Court of Alaska.
    Aug. 23, 2002.

      Sanford M. Gibbs, Brown, Waller & Gibbs, P.C., Anchorage, and P. Dennis Maloney, P. Dennis Maloney, P.C., Anchorage, for Appellant.
    Seott H. Leuning, Clapp, Peterson & Stow-ers, LLC, Anchorage, for Appellees.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENET1, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Stanley C. Fenner was hurt while operating a snowplow for the Municipality of Anchorage in 1997. After receiving workers' compensation benefits, Fenner filed suit against the municipality in superior court. The superior court granted the municipality summary judgment under the exclusive remedy provision of the workers' compensation act. Because the superior court did not err, we affirm the grant of summary judgment to the municipality.

II. FACTS AND PROCEEDINGS

._ On December 15, 1997 Stanley C. Fenner, a snowplow operator for the Municipality of Anchorage, was injured when his plow struck a high sewer cleanout, or manhole, injuring his ribs and chest. Although Fenner received workers' compensation benefits for his injury, he filed suit against the Municipality of Anchorage and Vince Mee, the Superintendent of the Office of Street Maintenance (collectively "the municipality") on December 14, 1999 in superior court.

The municipality filed a motion to dismiss Fenner's complaint pursuant to Rule 12(b)(6). The municipality argued that Fenner's claims were barred by the exclusive remedy provision of the Alaska Workers' Compensation Act (the Act), AS 28.30.055. In response, Fenner filed a second amended complaint, joining Anchorage Water & Wastewater Utility (AWWU) and Pacific North Equipment Alaska Company, and its branch manager, Fred Gayton.

In that complaint, Fenner alleged four claims: intentional tort against the municipality, intentional tort against AWWU, negligence against Pacific North and Gayton, and strict liability against Pacific North and Gay-ton. Fenner's allegations consisted of three actions by the municipality that he argued, taken in combination, rose to the level of an intent to harm: (1) the decision to discontinue the practice of assigning drivers to specific parts of town; (2) the reduction of budget allocations to lower high manholes; and (3) the replacement of bolts attaching the cutting edge to the plow with bolts that allegedly did not break as easily thereby increasing the risk of harm to operators.

At the same time that he filed the second amended complaint, Fenner filed an opposition to the municipality's motion to dismiss, arguing that the municipality's actions constituted an intentional tort, taking his claim outside the scope of the Act. Fenner also urged the superior court to adopt the "substantial certainty" test to determine whether the municipality's actions constituted an intentional tort. In reply, the municipality argued that the superior court should consider its motion to be a motion for summary judgment, that the test to be used by the superior court in determining whether the municipality acted intentionally was "specific intent to harm," that Alaska does not recognize the "substantial certainty" test, and that Fenner did not allege an intentional tort.

Superior Court Judge Peter A. Michalski granted summary judgment to the municipality and AWWU, which he found to be an entity of the municipality. Judge Michalski found that the actions alleged by Fenner did not rise to the level of intent to harm needed to maintain an action outside the workers' compensation act. The court further stated that the decisions of the municipality were budgetary and efficiency decisions that "cannot and do not constitute the equivalence of an intent to harm." Final judgment was entered against Fenner on January 22, 2001. Fenner appeals.

III. STANDARD OF REVIEW

A superior court's order granting a motion for summary judgment is reviewed de movo. We will affirm a grant of summary judgment if there are no genuine issues of material fact and if the moving party is entitled to summary judgment as a matter of law.

IV. DISCUSSION

A. Fenner's Claim Was Barred by the Exclusive Remedy Provision of the Worker's Compensation Act.

Fenner argues that the trial court erred in granting summary judgment to the municipality and AWWU as he showed "that he was the victim of an intentional act of the municipality," placing genuine issues of material fact in dispute and making the question of intent one for the jury. Fenner states that we have adopted the "substantial certainty" standard to determine whether a tort is intentional in the realm of the workers' compensation system. Although he argues that there was direct evidence of the municipality's intent to injure, Fenner submits that we should use the "substantial certainty" standard established by the Michigan Supreme Court allowing the law to infer intent, which he claims we have already adopted.

1. The intentional tort exception to the exclusive remedy provision of the act

For injuries incurred in the workplace, an employer is liable to employees for the payment of the compensation due under the Acts. This payment is due irrespective of fault. Under AS 28.30.055, this liability is the exclusive remedy for an employee injured during the course of employment.

However, we have held that this exclusive remedy provision does not apply where an employee commits an intentional tort against a fellow worker. We found that the "socially beneficial purpose of the work[ers'] compensation law would not be furthered by allowing a person who commits an intentional tort to use the compensation law as a shield against liability." We have permitted recovery for intentional torts "on the theory that the harm is not accidental and therefore not covered by the act."

2. We have not adopted the substantial certainty test.

Fenner argues that we did not set out any guidelines regarding the quantum or quality of evidence necessary to create an issue of fact as to whether there was substantial certainty that an employer's actions would lead to an employee's injury constituting an intentional tort until Williams v. Mammoth of Alaska when we adopted the "substantial certainty" standard of the Michigan Supreme Court. Fenner asserts that the "substantial certainty" standard defines intentional tort as occurring when the employer knows the consequences of its act "are certain or substantially certain to cause injury" yet still acts.

The municipality, however, argues that we require actual intent to injure before an employee escapes the workers' compensation system. It states that, rather than adopting a "substantial certainty" standard, Mammoth reaffirmed prior holdings of this court requiring a showing of actual intent.

We have placed a "stiff burden" on employees attempting to demonstrate an intent to harm. In Van Biene v. ERA Helicopters, Inc., we stated that we adopted the majority rule defining a tort intentional enough to take an employee outside the workers' compensation system. In adopting this standard, we noted that the majority of jurisdictions had held that allegations constituting gross negligence or willful and knowing violation of regulations did not rise to the level of an intentional tort. We also approved of Professor Larson's statement that

[slince the legal justification for the common-law action is the non-accidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.[]

In Mammoth we stated that we adopted the majority rule that "an employer's violation of government safety regulations, even if willful and knowing, [did] not rise to the level of an intentional tort" in Van Biene. The estate in Mammoth argued that we had failed to address the spectrum of other actions which are in reckless indifference to the safety of workers, as well as the minority view that an "employer's intentional violations of safety regulations may support a finding of intent to harm an employee." We discussed the substantial certainty doe-trine in relation to an Ohio case, stating that Ohio held that an employer's violation of safety standards constituted an intentional tort where the employer knowingly subjects an employee to something dangerous with knowledge that harm would be a substantial certainty. In Mammoth we went on to say, "(elven assuming that we were receptive to modifying the rule we adopted in Van Biene and following Holtz," there was no evidence to support a finding of intent to harm as a substantial certainty in the facts before the court.

Our decisions in Van Biene and Mammoth were further elucidated in Christensen v. NCH Corp. In that case, we held that the employee, Christensen, had to allege intentional harm on the part of NCH before he could pursue a claim outside the workers' compensation system. In the context of the exclusive remedy provision of the Act, "an intentional harm is a harm committed by a person who acts with a specific intent to cause an injury."

Our exception to the exclusive remedy provision of the Act is therefore limited to intentional torts where an employer has a specific intent to injure an employee. Fen-ner's contention, therefore, that we adopted the substantial certainty test to determine intent, is incorrect.

3. The municipality did not specifically intend to injure Fenner.

In his opposition to the municipality's motion to dismiss, Fenner attached nearly seventy pages of exhibits for the court to consider. The superior court, therefore, properly reviewed the municipality's motion as a motion for summary judgment under Rule 56. Fenner submitted a number of memos from the municipality, many of which were sent after Fenner's accident, regarding the Department of Public Works and Risk Management.

With his first amended complaint, Fenner submitted an affidavit from Chris Kloep, a former snowplow operator with the municipality. In his affidavit, Kloep described Mee's actions and statements on behalf of the municipality, particularly his decisions to change operators' plow routes and to reduce the budget for lowering high manholes and an alleged statement in 1995, two years before Fenper's accident, wishing injury onto snowplow operators.

It is not clear which of these documents the superior court considered during its decision. However, even taken altogether, Fen-ner's submissions do not amount to a specific intent to harm under our cases and the superior court did not err in finding no genuine issues of material fact.

The violation of OSHA regulations alleged by Fenner to constitute part of his claim of intent to injure did not occur until January and February 1999, long after Fen-ner incurred his injury in 1997. Kloep alleged that Mee made a statement wishing injury on snowplow operators in January or February 1995, nearly three years before Fenner's December 1997 accident. Further, none of the documents submitted by Fenner indicates that the municipality's decisions to change which operators plowed which streets, to reallocate its budget, or to replace snowplow bolts were done with the specific intent to cause Fenper's injury.

In fact, of the twenty-five exhibits submitted by Fenner, only three were dated before his accident. One was a 1982 memo regarding frost adjustable grade rings and the other two were November 1997 memos regarding plows that hit high utilities after the second plowing that winter and the costs associated with those hits. None of these three documents mentioned Fenner. Given that Fenner never submitted any evidence that the municipality specifically intended to cause his injuries with its plowing and manhole decisions, the superior court did not err in finding that Fenner did not raise a genuine issue of material fact alleging an intentional tort for him to escape the confines of the workers' compensation system.

B. The Superior Court Did Not Abuse Its Discretion in Refusing Fenner's Oral Motion for Discovery Before Granting Summary Judgment to the Municipality.

Fenner argues that the trial court should have delayed its ruling on the municipality's motion for summary judgment until discovery had been completed, as neither party had even made initial disclosures under Rule 26(a) when judgment was entered. Fenner states that his inability to develop a factual record to support his claims should have resulted in the court's sua sponte continuance of the case once it determined that the municipality's Rule 12(b)(6) motion would be treated as a motion for summary judgment.

Fenner's allegations, even if true, are not sufficient to remove his case from the workers' compensation system via the intentional tort exception. Delaying ruling on the motion for summary judgment, then, would have been of no benefit to Fenner. As such, the trial court did not abuse its discretion in denying Fenner more time to complete discovery.

C. Fenner Has Not Properly Raised the Issue of Sovereign Immunity.

Fenner argues in this court that the municipality claimed its decisions in regard to the seope and method of plowing decisions were discretionary and not subject to tort liability, and attacks that claim. We need not reach this issue, however, because Fen-ner did not sufficiently raise it below nor include it in his points on appeal. In these cireumstances, the point is waived.

v. CONCLUSION

Because the trial court did not err in granting the municipality summary judgment under the exclusive remedy provision of the workers' compensation act, we AFFIRM.

MATTHEWS, Justice, not participating.

      . White v. State, Dep't of Natural Res., 14 P.3d 956, 959 (Alaska 2000).

      . Calhoun v. State, Dep't of Transp. & Pub. Facilities, 857 P.2d 1191, 1193 (Alaska 1993).

      . AS 23.30.045(a).

      . AS 23.30.045(b).

      . AS 23.30.055 provides, in part:
      The lability of an employer prescribed in AS 23.30.045 is exclusive and in place of all other liability of the employer and any fellow employee to the employee, the employee's legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from the employer or fellow employee at law or in admiralty on account of the injury or death....

      . Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977) (holding that an employee could sue an employer for an assault and battery inflicted by a co-worker and occurring on the premises of the place of employment).

      . Id.

      . Stafford v. Westchester Fire Ins. Co., 526 P.2d 37, 43 n. 29 (Alaska 1974), overruled on other grounds, Cooper v. Argonaut Ins. Cos., 556 P.2d 525 (Alaska 1976).

      . 890 P.2d 581 (Alaska 1995).

      . Stafford, 526 P.2d at 43 n. 29.

      . 779 P.2d 315 (Alaska 1989).

      . Id. at 319.

      . Id. at 318.

      . Id. at 318-19 (quoting A. Larson, Larson Workmen's Compensation § 68.13, at 13-8 to -26 (1983 & Supp.1985)) (alteration in original).

      . 890 P.2d at 585.

      . Id.

      . Holtz v. Schutt Pattern Works Co., 89 Ohio App.3d 663, 626 N.E.2d 1029 (1993).

      . Id. at 585-86.

      . Id. at 586.

      . 956 P.2d 468 (Alaska 1998).

      . Id. at 475.

      . Id.

      . See Alaska R. Civ. P. 12(b).

      . Williams v. Mammoth of Alaska, Inc., 890 P.2d 581 (Alaska 1995) (holding that employer's intentional violation of safety regulations does not constitute intentional tort); Van Biene v. ERA Helicopters, 779 P.2d 315 (Alaska 1989) (holding that employer's order that pilots fly in violation of FAA flight time and duty regulations failed to constitute intentional tort); Elliott v. Brown, 569 P.2d 1323 (Alaska 1977) (holding where employer hit and shoved employees, actions were intentional enough to take case outside worker's compensation system).

      . Christensen v. NCH Corp., 956 P.2d at 474 (stating that "[mJere assertions of fact in pleadings and memoranda cannot raise genuine issues of material fact' so as to avoid summary judgment).

      . This is a preemptive attack by Fenner on a potential defense of the municipality. Given our resolution of the exclusive remedy issue, this issue is moot.

      . Fenner's only mention of the issue occurred in a brief footnote in his opposition to the municipality's motion to dismiss, which footnote itself argued that the court should not consider sovereign immunity.

      . Winn v. Mannhalter, 708 P.2d 444, 449 (Alaska 1985).


author: CARPENETI Justice.

text:
    MATANUSKA ELECTRIC ASSOCIATION, INC., a non-profit electric membership cooperative, Appellant, v. CHUGACH ELECTRIC ASSOCIATION, INC., a non-profit electric membership cooperative, Appellee.
    No. S-9839.
    Supreme Court of Alaska.
    Aug. 23, 2002.

      Stephen M. Ellis and Jeffrey P. Stark, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellant.
    Donald W. Edwards, Chugach Electric Association, Anchorage, and Andrew F. Beh-rend, Heller Ehrman White & McAuliffe LLP, Anchorage, for Appellee.
    Virginia A. Rusch, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Amicus Curiae Regulatory Commission of Alaska.
    Before: FABE, Chief Justice, MATTHEWS, BRYNER, and CARPENETI Justices.
   OPINION

CARPENETI Justice.

I. INTRODUCTION

Retroactive ratemaking by a utility is prohibited in Alaska, as it is in the majority of jurisdictions in the United States. The Regulatory Commission of Alaska compelled Chugach Electric Association to refund payments collected as a result of a miscalculation in the cost of generation and transmission line loss. The superior court, concluding that the commission's ruling constituted retroactive ratemaking, reversed the commission's order. We agree, and therefore affirm the decision of the superior court.

II. FACTS AND PROCEEDINGS

"To comprehend the rule against retroactive ratemaking [as well as the facts involved in a retroactive ratemaking case}, it is necessary first to understand the process for the setting of public utility rates."

A. Background

The provision of electric service by Chu-gach Electric Association, Inc. (Chugach) and Matanuska Electric Association, Inc. (MEA) is governed by AS 42.05. Because Chugach and MEA are electrical cooperatives organized under AS 10.25, they come under the provisions of AS 42.05.

Chugach generates electricity and sells it wholesale to MEA. Chugach's rates have two components: a base rate and an adjustment to that rate known as a fuel surcharge. The base rate reflects the fixed costs of providing electric service, as well as other costs that tend to remain stable. The fuel surcharge is a fluctuating charge that operates to protect Chugach against those costs associated with purchasing and generating power that are not as stable.

A utility's rates and business practices are governed by the tariffs it has in effect with the Regulatory Commission of Alaska (commission). The filing or revision of a tariff is a complicated and lengthy process. As a means of expediting the procedure, Alaska state law allows utilities to utilize a simplified rate filing process. The simplified rate filing process allows utilities to modify their base rates through quarterly or semi-annual rate filings. Through this process, utilities are allowed to adjust their base rates, subject to certain limitations, without filing and litigating full rate cases.

While the simplified rate filing is a means for a utility to have an expedited procedure to establish its base rate, a Cost of Power Adjustment Filing allows the same expedited process for surcharges. The Fuel and Purchased Power Cost Adjustment Factors (fuel surcharge filing) is an adjustment Chugach filed with the commission to its base rate and is the focus of the present dispute. This surcharge is calculated through a procedure established in a tariff similar to the simplified rate filing process. Through this mechanism, the commission permits utilities such as Chugach to collect a surcharge designed to recover fluctuations in fuel costs relative to costs in the base rate. Fuel surcharge filings are not subject to the same review as the base rate, although there are some similarities between the fuel surcharge filing procedure and simplified rate filing procedure.

This appeal involves the use of an estimated generation and transmission system energy loss in Chugaeh's fuel surcharge filings. A generation and transmission line loss factor is an adjustment to the base rate to reflect the amount of electric energy that is lost through its generation and transmission. This amount varies and cannot always be accurately predicted. Because of the fluctuations, it is part of the fuel surcharge and is adjusted on a periodic basis.

Additionally, because the fuel surcharge is an estimate, the amount collected might fall short or exceed the actual cost of a utility's fuel and purchased power. After a given period, the commiksion reconciles fuel cost recoveries collected through a fuel surcharge. Such recoveries are collected in a balancing account and only balance "over-or undercol-lections occurring in the immediately preceding quarter through adjustments for the following quarter." "The purpose of these 'true-up' proceedings is to determine whether the amounts passed through to customers were in accordance with the [actual sur-charge.]" Thus, whatever variances occur are taken into account when calculating the next quarterly fuel surcharge filing.

B. Facts

Chugach's fuel surcharge was approved in 1987 and governed Chugach's collection of fuel surcharges. Approval authorized Chu-gach to collect fael surcharges as an adjustment to base rates if certain requirements were met. Approval of the surcharge permitted adjustments to the rate on a quarterly basis. The amount of the permissible adjustment was the difference between the estimated fuel and purchase power costs for the upcoming quarter and the base amount established in the tariff. To support these estimates, Chugach was required to file a tariff advice letter with the commission, no later than forty-five days after the beginning of each quarter, along with tariff sheets showing the fuel surcharges, studies of its fuel an'd purchased power costs, documentation of those costs, as well as other supporting documentation.

The Fuel and Purchased Power Cost Adjustment Factors established a balancing account to reconcile the fuel surcharge with actual fuel costs. Through separate accounts for wholesale and retail customers, Chugach debited the actual monthly fuel and purchased power costs and credited the total of the base rate plus the fuel surcharge in effect for that month multiplied by the number of kilowatt hours sold. The commission was permitted to adjust Chugach's fuel surcharge rates individually and in its simplified rate filing each quarter, but only under limited cireamstances. The procedures established by the Fuel and Purchased Power Cost Adjustment Factors provided that all fuel surcharge rates are subject to review and adjustment after being implemented unless "sooner authorized" by the commission.

Chugach sought and gained the approval of the commission before each surcharge was implemented. At the time the commission's approval is sought, the same information is submitted to Chugach's customers. Thus, MEA received a copy of Chugaeh's fuel surcharge documentation each time it was submitted to the commission. A fuel surcharge filing can total well over 100 pages.

Upon submitting its fuel surcharge filing to the commission, Chugach's documents are reviewed and a tariff action memorandum is prepared by a utility tariff analyst. All of the tariff action memoranda in this case reflect that the documents were in fact received, reviewed, and that the calculations contained in them were correct. In each tariff action memorandum, the utility tariff analyst recommended the commission approve Chugach's tariff advice letter submitting that quarter's fuel surcharge. Each tariff advice letter submitted for the 1995-1997 period received commission approval before it became effective. Each contained that quarter's fuel surcharge rate.

Since the mid-1980s, Chugach has used a line loss factor of 5.219% in its rate filings for wholesale customers. In a general rate case in 1987, the commission issued an order formally approving this factor as an appropriate reflection of Chugach's transmission line losses. This line loss factor was identified in all of Chugach's simplified rate filings and each of the quarterly fuel surcharge filings that the commission later approved.

In November 1997 Chugach and MEA discovered a discrepancy in the line loss factor Chugach used in its projected fuel surcharges. Chugach's own documents showed the actual line loss experienced by Chugach in 1995, 1996, and 1997 was substantially lower than the 5.219% Chugach had claimed in its simplified rate filings and fuel surcharge filings. On June 25, 1999 a utility tariff analyst recommended suspension of the surcharge.

When confronted with the discrepancy between its actual line losses and what it had charged for line losses, Chugach acknowledged and rectified the error. Chugach then submitted revised tariffs to the commission that more accurately reflected the line loss factor in future rates. Chugach, however, refused to refund the overcharged tariffs, invoking the doctrine prohibiting retroactive ratemaking.

C. Proceedings

This appeal arises from commission docket number U-96-37. Until December 1997 the issues in that docket were limited to Chu-gach's base rates established through the simplified rate filing process. On December 19, 1997 MEA raised the issue of the incorrect generation and transmission line loss factor. MEA asked the commission to correct Chugach's line loss factor and demanded a refund based on the difference between the incorrect line loss factor and the corrected one.

In Order U-96-37(13) issued on July 1, 1998, the commission ordered Chugach to recalculate its fuel surcharges for 1995 using the actual line loss factor for that year. The commission also ordered Chugach to refund an amount based on the difference between the original line loss factor and the revision to its wholesale customers. In making its decision, the commission noted that "the principles relevant to retroactive ratemaking are not applicable to fuel adjustment clauses."

Both Chugach and MEA sought reconsideration of the commission's order. Chugach argued the commission overlooked the prohibition against retroactive ratemaking, creating "confiscatory rates which result in taking Chugach property without due process of law,." The commission denied Chugach's request for reconsideration. MEA's petition for reconsideration asserted that the commission's previous order was internally inconsistent. MEA noted the order only addressed the use of the newly calculated generation and transmission line loss factor for 1995, failing to require a new line loss factor be utilized for the 1996 and 1997 portions of the refund. The commission granted MEAs request and ordered refunds for the additional years using the actual line loss factor from those particular years.

Chugach appealed the commission's decisions in U-96-37(13) and U-96-37(18) to the superior court. Both MEA and the commission filed briefs in response. On July 27, 2000 the superior court reversed the commission's decision. In his decision, Superior Court Judge Peter A. Michalski held that the commission clearly erred "in its determination that Chugach's use of the tariff mandated line loss factor was 'incorrect';" Judge Michalski also held "that going back more than one quarter in the correction of a Cost of Power Adjustment constitutes retroactive rate making."

MEA now appeals. The commission declined to pursue an appeal and is no longer a party to this action. It has, however, filed an amicus curiae brief outlining its position.

III. STANDARD OF REVIEW

In an administrative appeal where the superior court acts as an intermediate appellate court, we directly review the agency action in question. "As we substitute our judgment, it is our duty 'to adopt the rule of law that is most persuasive in light of precedent, reason, and policy' "

Whether the commission's decision ordering Chugach to refund MEA payments collected from fuel surcharges constitutes unlawful ratemaking is a question of law. Because assessing the scope of an agency's authority "involves statutory interpretation, or analysis of legal relationships, about which courts have specialized knowledge and expertise," our independent judgment is used. "However, even under the independent judgment standard [we have] noted that the court should give weight to what the agency has done, especially where the agency interpretation is longstanding."

The commission's findings of fact are reviewed for clear error and are only reversed if there is not substantial evidence to support them.

IV. DISCUSSION

A. The Rule Against Retroactive Rate-making

Both MEA and Chugach agree that retroactive ratemaking is impermissible under Alaska state law. We coneur.

" 'A fundamental rule of ratemaking is that rates are exclusively prospective in nature. " One purpose of having such a rule is a consumer's right to rely on rates set by the commission. "Some reliability, of course, is essential to the public utility regulatory system. If commissions could retroactively change rates willy-nilly, and ratepayers bills and utility revenues were continually subject to large fluctuations, serious questions would arise concerning the legitimacy of the ratemaking process." Thus, the rule is critical for a utility to plan its finances. Other purposes for prohibiting retroactive rates include "investor confidence, utility credit rating, and the integrity of service." And "[rietroactivity, even where permissible, is not favored, exeept upon the clearest mandate."

The question before us is whether requiring Chugach to refund amounts collected in exeess of the generation and transmission line loss factor constitutes impermissible retroactive ratemaking.

B. The Rule Against Retroactive Rate-making Applies to the Fuel Surcharge at Issue.

Chugach contends that the rule against retroactive ratemaking applies to the fuel surcharge here. MEA, as well as the commission, distinguish the fuel surcharges from regular commission-made rates, both arguing that, because of this distinction, fuel surcharges are not susceptible to the prohibition.

1. The fuel surcharge constitutes a commission-made rate.

While Chugach maintains that the fuel surcharge for the generation and transmission line loss factor is a rate, MEA claims the surcharge is distinguishable from a rate. The commission concurs with MEA, arguing that fuel surcharges are distinct from actual rates because "unlike traditional rates which are estimates derived from historical costs and consumption adjusted to predict future costs and consumption, surcharges in Alaska are designed and administered to cover actual costs exactly."

"The difficulty in classification [for fuel surcharges] stems not only from the inflationary rise in fuel costs that triggered the problem, but from the fact that fuel cost adjustment clauses are themselves unique animals that are not easily assimilated to classical rate-making principles."

Chugach draws a distinction in the case law regarding fuel surcharges that have been pre-approved by the relevant state's utilities commission from those where the fuel surcharge did not receive such review. In distinguishing between the two, Chugach notes that where the fuel surcharge received approval by the necessary authority before enactment, the court did not permit a retroactive refund of any excess rates, finding it constituted retroactive ratemaking. However, where the utility's surcharge did not receive review, the court was more likely to find the rule against retroactive ratemaking did not apply, as the commission retained jurisdiction over the matter. MEA, however, argues that it is not whether the rates were reviewed that matters, but rather how much review they received. The question, therefore, is what type of review does the commission provide for fuel surcharge filings in Alaska and whether such review is adequate to consider a fuel surcharge a rate, applicable to the prohibition against retroactive rate-making.

a. Fuel surcharges in Alaska receive a documentary review.

Chugach argues that the distinction between the instant case and those cases supporting the proposition that fuel surcharges are in a different category than rates is that the charges in this case were approved by the commission. MEA and the commission argue that the fuel surcharge filings utilized by Chugach only received ministerial review. Chugach's position is the more persuasive.

In their dissent from the commission's order denying reconsideration, Commissioners Alyce A. Hanley and James M. Posey wrote "Itlhe argument that [Chugach's fuel surcharge] filings were only subject to a superficial review is disingenuous." The dissenters note that the filings received "extensive review." However, utility tariff analyst Dawn Bishop Kleweno affied that "[uJnder the present system, it is simply impossible to thoroughly investigate fuel surcharges like rates in a rate case."

Chugach used the simplified rate filing process to establish its base rates and argues that if the same review is given to fuel surcharge filings as to simplified rate filings, one cannot constitute a rate if the other does not. The processes are indeed similar. Chugach submitted the same amount of documentation for both its simplified rate filings as well as its fuel surcharge filings. Much of the same information is included in both processes. Both filings are made at least forty-five days before the rate takes effect and are subject to investigation and possible suspension if the commission feels they need additional time for review. Simplified rate filing rates are deemed final once they are approved.

b. The commission's review of Chu-gach's fuel surcharge is substantial enough to constitute a rate.

Despite the similarities between the simplified rate filing and fuel surcharge filing review processes, MEA and the commission claim their differences outweigh the similarities because the commission's review of the latter is purely ministerial. We disagree.

It is true that the fuel surcharge filing procedure is not the same as the simplified rate filing process in all respects. While the simplified rate filing applies to base rates, the fuel surcharge filing is for estimated costs such as line loss factors. Generally, there is no public notice regarding fuel surcharge filings. The commission also notes that generally there is also no hearing. Under AS 42.05.421, however, the commission does have the power to conduct a hearing upon its own motion "to determine the reasonableness and propriety of the filing."

The commission further argues that the analyst's duties, in reviewing a fuel surcharge filing, do not include investigating the underlying accuracy of information such as the line loss factor or meter read data, claiming the fuel surcharge filing is primarily reviewed "to verify the prior quarter's fuel costs ... unless something unusual stands out," and that, "(there simply is not enough time to investigate a utility's estimates for fuel costs and [kilowatt hour] sales prior to the next quarterly filing." While this may generally be true, in the present case MEA acknowledges that in 1987 the commission issued an order in a contested general rate proceeding in which MEA itself was an inter-venor, expressly finding it appropriate for Chugach to use a 5.219% line loss factor for its transmission losses. Thereafter, Chugach relied on this order, and the commission repeatedly approved the same figure for Chugach's line loss factor for a period of years without inquiring into why there was no fluctuation, something that could be considered "surprisingly unusual." And, although the balancing account rectifies other changes in price, the account cannot rectify the constant use of the wrong figure when it is not due to any actual costs, but instead human error.

The law suppbrts this approach. "[Thhe essential principle of the rule against retroactive ratemaking is that when the estimates prove inaccurate and costs are higher or lower than predicted, the previously set rates cannot be changed to correct for the error; the only step that the [commission] can take is to prospectively revise rates in an effort to set more appropriate ones." As one court stated, "[tlariffs are encompassed within the prohibition against retroactive ratemaking, particularly when, as in the present case, they share similarities with rate schedules." Here, the similarities vastly outweigh any differences between the two. And, as the court stated in First Hartford Corp. v. Central Maine Power Co., "[wlhether or not the clauses were "Just, reasonable and otherwise lawful', as the Commission's orders recited, they functioned as rates, filed and approved in advance of their inclusion in customers' charges." Thus, "[the time for challenging a fuel adjustment rate is before the rate is approved by the Commission."

Even if we were to agree with MEA and the commission and find that the amount of review the commission gave to the fuel surcharge filings was inadequate, we agree with the Wisconsin Supreme Court's reasoning in Wisconsin Power & Light Co. v. Public Service Commission of Wisconsin, making the argument irrelevant.

In Wisconsin Power & Light, the public service commission for the state of Wisconsin determined that Wisconsin Power & Light imprudently administered a contract for coal causing the company to overcharge customers for electricity. Wisconsin Power & Light was therefore ordered to pay nine million dollars in penalties, an amount derived from the actual "overcharges." The case is similar to the instant case as one party there contended that the penalties were valid, because Wisconsin Power & Light "use[d] unreasonably high fuel costs" when calculating its rates. It was thus argued that the commission was only responsible for reviewing the formula, not the numbers plugged into it. Similarly here, the commission claims analysts are not responsible for investigating the numbers. The Wisconsin court rejected this argument, as do we. The commission had the power to review Chugach's filings each time they were submitted. The record shows that the amount of review given fuel surcharge filings is in dispute. As in Wisconsin Power & Light, however, the dispute is irrelevant. What is relevant is that the commission had full power to review additional data concerning Chugach's line losses and to reexamine its own determination that a 5.219% line loss factor was appropriate; yet neither the commission nor MEA questioned Chugach's continuing reliance on the approved line loss factor until 1997.

The commission, which purportedly reviewed the filings, cannot now argue that proper review did not take place. Chugach requested approval of its surcharges before passing them through to its customers. The commission's duty to check submitted filings for accuracy is not exeused; it has specific statutory authority to investigate and even suspend a utility's proposed filing prior to implementation.

2. Is the one-quarter limitation for true-ups prohibited by the rule against retroactive ratemaking?

In his order, Judge Michalski holds that "going back more than one quarter in the correction of a Cost of Power Adjustment constitutes retroactive rate making."

Whether or not true-ups should be limited to one quarter is not an issue raised in the points of appeal and is not seriously briefed by any party. We deem issues addressed only cursorily in briefs waived by the party. Where an issue involves a question of law that is critical to a proper decision, it may be considered. However, in the instant case, this question is best considered by the commission and is not critical to our finding that any refund would be retroactive ratemaking. Accordingly, we decline to consider the allowable duration of the true-up period.

3. The commission's powers do not include the power to bypass the rule against retroactive ratemak-ing.

In this case, the commission approved each tariff establishing the quarterly fuel surcharge rate before that rate took effect. Chugach argues that, even if the commission had the general authority to change a commission-approved fuel surcharge rate, it could not do so in the instant case as the procedure for revising the quarterly fuel surcharge rate is in the tariff it-self. MEA responds that the commission's actions here were valid under our previous case law, which stated that it has "whatever powers are expressly granted to it by the legislature or conferred upon it by implication as necessarily incident to the exercise of powers expressly granted." We need not consider whether or not the commission's order violates the procedures established in the tariff, as we have already found any refund here would constitute retroactive ratemaking.

4. The evidence does not support the conclusion that Chugach knew that the actual line loss factor was below 5.219%.

In its brief, MEA contends that a decision in Chugaeh's favor would allow Chu-gach to retain the benefit of an incorrect line loss factor and that Chugach knew the line loss factor was incorrect for several years and did not use this knowledge to correct the factor. MEA claims that when Myles C. Yerkes, a representative of the Alaska Electric Generation & Transmission Cooperative, met with Chugach he was provided line loss data for the 1995-1997 period. MEA then argues that "expressly set out in those documents, the actual ... line loss for those years was not 5.219%, but rather 3.64%, 2.61%, and 2.19%."

Chugach denies there is any evidence that it knew that the line loss factor it was using was incorrect. Although the documents MEA cites do set out line loss factors below 5.219%, it is not clear when these documents were generated. Also, Yerkes states in his affidavit that Chugach assumed the 5.219% rate "instead of calculating the actual value."

The assertion that Chugach had prior knowledge of the overstated line loss is not supported by the evidence.

v. CONCLUSION

The prohibition against retroactive rate-making applies to the generation and transmission line loss factor included in Chugach's fuel surcharge filing. We therefore AFFIRM the decision of the superior court that reversed the commission's order requiring Chugach to refund its wholesale customers amounts collected in excess of the actual line loss factor.

EASTAUGH, Justice, not participating.

      . Stefan H. Krieger, The Ghost of Regulation Past: Current Applications of the Rule Against Retroactive Ratemaking in Public Utility Proceedings, 1991 U. I11. L.Rev. 983, 993.

      . In 1999, the name "Regulatory Commission of Alaska" was substituted for "Alaska Public Utilities Commission" in accordance with ch. 25, § 30(a), SLA 1999.

      . AS 42.05.371.

      . As MEA notes,
      under 3 AAC 48.220, an original and 10 copies of each utility tariff filing must be provided to the Commission at least 45 days prior to the proposed effective date. Moreover, 3 AAC 48.275 sets forth a voluminous list of supporting materials that must accompany a permanent or interim tariff revision: The Commission examines the information provided in the 'course of its investigation, which can take several months to complete.

      . AS 42.05.381(e).

      . 3 Alaska Administrative Code 48.710(b) (2000).

      . 3 AAC 48.770.

      . These surcharges can also be referred to as fuel cost adjustment clauses. ""[The purpose of such a clause is to permit prompt rate adjustment to offset unusual changes in fuel costs...." Southern California Edison Co. v. Pub. Utils. Comm'n, 20 Cal.3d 813, 144 Cal.Rptr. 905, 576 P.2d 945, 947 (1978).

      . Krieger, supra note 1, at 1017.

      . This was the order granting MEA's petition for reconsideration and denying Chugach's motion for reconsideration.

      . See Northern Alaska Envil. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 871 n. 6 (Alaska 1992).

      . Nat'l Bank of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982).

      . Tlingit-Haida Reg'l Elec. Auth. v. State, 15 P.3d 754, 761 (Alaska 2001).

      . Far N. Sanitation, 825 P.2d at 872 (quoting New England Tel. & Tel. Co. v. Pub. Util. Comm'n, 116 RI. 356, 358 A.2d 1, 20 (1976)).

      . "Whether desired or not.... Being or occurring whether desired or not." An alteration of "will ye, nill ye, be you willing, be you unwilling." Wesster's II New Riveestore University Dic-Tronary 1320 (1988).

      . Krieger, supra note 1, at 1040.

      . Far N. Sanitation, 825 P.2d at 872.

      . Alaska Pub. Utils. Comm'n v. Municipality of Anchorage, 902 P.2d 783, 788 (Alaska 1995).

      . In re Cen. Vermont Pub. Serv. Corp., 144 Vt. 46, 473 A.2d 1155, 1161 (1984).

      . Maine Pub. Serv. Co. v. Fed. Power Comm'n, 579 F.2d 659, 668 (1st Cir.1978).

      . AS 42.05.411(a); AS 42.05.421.

      . 3 AAC 48.730(a) provides, in part: "A cooperative's rate adjustment filing under 3 AAC 48.700-3 AAC 48.790 is governed by 3 AAC 48.280 and will become permanent at the end of the notice period described in AS 42.05.411 unless the commission suspends the filing in accordance with AS 42.05.421."

      . Detroit Edison Co. v. Michigan Pub. Serv. Comm'n, 416 Mich. 510, 331 N.W.2d 159, 164 (1982).

      . Kansas Gas & Elec. Co. v. State Corp. Comm'n of the State of Kansas, 14 Kan.App.2d 527, 794 P.2d 1165, 1171 (1990) (holding the state's commission and the utility bound by the original tariff until changed by further order of that commission).

      . 425 A.2d 174 (Me.1981).

      . Id. at 177.

      . Id. at 181.

      . 181 Wis.2d 385, 511 N.W.2d 291 (1994).

      . Id. at 295.

      . Id.

      . Elsberry v. Elsberry, 967 P.2d 1004, 1006 & n. 3 (Alaska 1998).

      . Vest v. First Nat'l Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983).

      . Cole v. Ketchikan Pulp Co., 850 P.2d 642, 647 (Alaska 1993) (remanding issue to Workers' Compensation Board because board had not previously considered it and because parties had not briefed or argued issue on appeal).

      . Chugach thus argues that the commission's order violates four statutes in the utility code: AS 42.05.371, AS 42.05.411, AS 42.05.421, and AS 42.05.431.

      . Glacier State Tel. Co. v. Alaska Pub. Utils. Comm'n, 724 P.2d 1187, 1190 (Alaska 1986).


author: EASTAUGH, Justice.

text:
    H. Thompson PRENTZEL, III, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Trooper Daniel Scott, Trooper Dane Gilmore, Captain Warren Tanner, and Colonel Glen Godfrey, Appellees.
    No. S-9979.
    Supreme Court of Alaska.
    Aug. 23, 2002.

      H. Thompson Prentzel, III, pro se.
    Richard Keck, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

State troopers arrested a man without a warrant because they thought he was violating his court-imposed conditions of release from a prior charge. He was never charged with violating the release conditions. The man sued the State of Alaska and individual Alaska State Troopers. Was it error to dismiss on the pleadings his negligence claims against the state and his negligence and 42 U.S.C. § 1983 claims against the individual troopers? Because the pleadings alone do not allow us to decide the resulting issues, we reverse in part the dismissal of his claims and remand for further proceedings.

II. FACTS AND PROCEEDINGS

Alaska State Troopers Daniel Scott and Dane Gilmore saw H. Thompson Prent-zel III walk down College Road in Fairbanks at 3:80 a.m. in October 1998 with a bottle of alcohol in his possession. The trooper dispatcher informed Troopers Scott and Gilmore that Prentzel, who had previously been charged with driving while intoxicated (DWI), was subject to a court-ordered condition of release that precluded him from possessing alcohol. Troopers Scott and Gilmore then arrested Prentzel without a warrant for violating his DWI release condition. Prentzel was later released without being charged with violating his release conditions.

Prentzel filed a civil action in October 1999 against the Alaska Department of Public Safety, Trooper Scott, Trooper Gilmore, Captain Warren Tanner, and Colonel Glen God-frey (the "state defendants"), alleging false arrest, false imprisonment, trespass to chattels, conversion, and negligence. The parties disagree about the cireumstances surrounding the arrest. Prentzel's complaint stated that he was:

humiliatingly handcuffed in public for more than 10 min.; detained in an unsanitary cell without sink or toilet for more than 12 hours; manhandled by officers who falsely charged [him] with resisting arrest ... [and] drug possession, [had] the humiliation of having these false charges ... printed in the local newspaper ... all resulting in increased stress.

The state defendants denied these allegations and asserted instead that Prentzel had resisted arrest. The state filed an Alaska Civil Rule 12(c) motion to dismiss on the pleadings. Prentzel then moved to amend his complaint to claim civil rights violations under 42 U.S.C. § 1983, attorney's fees under 42 U.S.C. § 1988, and violations of his civil rights under the Alaska Constitution. The state defendants did not oppose amendment. The state defendants moved to dismiss the civil rights claim and the state constitutional claim in June and July 2000 and to consolidate and dismiss Prentzel's other claims. Prentzel opposed dismissal. On August 7, 2000 Prentzel moved for permission to file a second amended complaint to add an additional unknown state trooper as a defendant, and to allege that the state defendants' actions were willful and carried out with malice. On August 10 the superior court granted the state defendants' motion to dismiss the amended complaint and held that the second amended complaint would not change the outcome of the ruling. The superior court also awarded the state defendants prevailing party attorney's fees of $1,000.

Prentzel appeals.

III. DISCUSSION

A. Standard of Review

We review de novo the grant of a Rule 12(c) motion for judgment on the pleadings. The state defendants can prevail only if Prentzel's pleadings contain no allegations that would permit recovery if proven.

B. It Was Error To Dismiss Prentzel's Claims Against Troopers Gilmore and Scott on the Grounds of Official Immunity.

Prentzel argues that the superior court erred in dismissing on official immunity grounds his claims against Troopers Seott and Gilmore. Prentzel argues that Troopers Scott and Gilmore exceeded the scope of their authority, thereby forfeiting immunity, when they arrested Prentzel without a warrant. Prentzel argues that AS 12.25.0830 does not authorize warrantless arrests for violations of DWI conditions of release. He also argues that the allegation of malice in his proposed second amended complaint created a factual dispute that precluded judgment on the pleadings. The state defendants argue that Troopers Scott and Gilmore "are immune from liability for making an error in their personal deliberation, decision, and judgment regarding the seope of their arrest authority." The state defendants conclude that this immunity extends to state officials who misinterpret the law.

The superior court ruled that Prentzel's arrest was "an exercise of Trooper discretion," and that governmental immunity protects Troopers Scott and Gilmore from liability for misinterpreting their authority to arrest Prentzel under AS 12.25.030. The superior court also denied Prentzel's August 2000 motion to amend his complaint to add a charge of willful and malicious conduct because it ruled that the amendment would "not change the outcome herein."

Alaska Civil Rule 15(a) allows parties to amend their pleadings by leave of court; leave is to be granted when justice requires. We have held that "the trial court has broad discretion in allowing or denying proposed amendments after the initial period has passed under [Rule 15(a)]." Typical reasons for denying leave to amend include the added expense and increased burden the opposing party is likely to face as a result of the amendment. But a party should be permitted to amend if there is no showing that amending would cause injustice.

It does not appear that the superior court based its decision to deny Prentzel's second attempted amendment on grounds of increased burden, added expense, or potential injustice to the state defendants. Instead, the superior court concluded that Prentzel's second amended complaint would not alter the legal grounds for dismissing Prentzel's claims. |

The superior court's ruling would have been correct if Prentzel's amendment would have been fruitless. This would have been the case if the immunity protecting Troopers Seott and Gilmore were absolute, because an allegation of malice will not defeat absolute immunity. But if the officers are entitled to immunity it must be qualified, not absolute, immunity. We have stated that "(under a rule of qualified immunity, a public official is shielded from liability only when discretionary acts within the scope of the official's authority are done in good faith and are not malicious or corrupt." Prentzel claimed in his rejected second amended complaint that the actions of Troopers Gilmore and Scott "were made with malice toward [Prentzel]." Whether they acted maliciously is a factual question not suitable for disposition on the pleadings when a complaint properly pleads malice. We therefore hold that it was error to deny the amendment and to rule that the doctrine of official immunity entitled Troopers Gilmore and Seott to judgment on the pleadings.

C. It Was Error To Dismiss Prentzel's Negligence Claim Against the State and Officers Tanner and Godfrey.

'1. The pleadings do not preclude the possibility that the state defendants owed Prentzel an actionable duty.

Prentzel contends that Captain Tanner and Colonel Godfrey "failed in their duty to train and supervise Sergeant John Doe, Trooper Scott and Trooper Gilmore concerning the scope of their lawful authority to arrest a person without a warrant when such person is not committing an offense." The state defendants argue that Captain Tanner and Colonel Godfrey owed Prentzel no duty to be error-free in their supervision and training of Troopers Scott and Gilmore because Troopers Scott and Gilmore themselves owed no duty to Prentzel to be error-free in their arrest. But whether Captain Tanner and Colonel Godfrey owed Prentzel a duty cannot be conclusively resolved by resort to this simple syllogism. Instead, we have stated that an actionable duty of care is a public policy question involving:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.[]

Prentzel urges us to hold that the state owes a duty to its citizens to supervise and train state troopers so that they do not make mistakes like the one made by Troopers Scott and Gilmore. Inadequate police training can be actionable, but we are relue-tant to decide whether any duty was owed in this case based on the limited fact inferences permissible from the pleadings alone. Although determining whether an actionable duty exists is a legal question, the factual context can be a helpful indicator of the public policy questions at issue. Prentzel's amended complaint does not rule out the existence of actionable training and supervision duties. We hold that the dismissal of the training and supervision claim cannot be sustained on a theory the pleadings alleged no actionable duty.

2. Determining whether Captain Tanner and Colonel Godfrey are entitled to immunity for supervision and training of the arresting officers requires further development of the underlying facts.

Prentzel next argues that the state is not entitled to discretionary function immunity under AS 09.50.250(1). He asserts that "Inlo discretion" in the matter of his arrest "was vested in [the state], Colonel Godfrey, Captain Tanner, Sergeant Doe, Trooper Seott or Trooper Gilmore."

We have adopted a "planning/operational" dichotomy for identifying those governmental acts entitled to discretionary function immunity under AS 09.50.250. "A planning decision is one that involves policy formulation, whereas an operational decision involves policy execution or implementation." Planning decisions are entitled to discretionary function immunity; operational decisions are not. Prentzel argues that any decisions made by the state in supervising and training troopers in making arrests-specifically arrests for violations of DWI bail conditions-are operational.

Distinguishing between operational and planning decisions is a legal question. Nonetheless, "our decisions identifying discretionary functions have invariably involved cases decided on summary judgment; we have never affirmed a dismissal based on the pleadings alone." We recognize that some facets of training and supervising are more likely than others to involve planning, rather than operational, activities. But we cannot decide without some factual context whether the training and supervisory activities Prent-zel attributes to Captain Tanner and Colonel Godfrey involved planning functions entitling them to discretionary function immunity. They were therefore not entitled to dismissal of those claims on a discretionary function immunity theory.

D. Prentzel's Pleadings Do Not Require Dismissal of the § 1983 Claim Against the Individually Named Officers and Troopers.

Prentzel's amended complaint sought money damages and injunctive relief against the "defendants" under 42 U.S.C. $ 1983 for certain alleged customs and policies of the Alaska State Troopers. The superior court dismissed Prentzel's § 1983 damages claim, stating: -

Because states and state agencies cannot be sued under § 1983, since they are not "persons" for § 1983 purposes, and the Alaska State Troopers are an agency, created by a statute as a division of the Department of [Public] Safety, Prentzel's [§ 1983 claim] is dismissed to the extent that [it] seeks monetary damages from a state agency.

Prentzel does not argue that the superior court erred by dismissing his § 1983 claim against the state. But he argues that the superior court erred by not construing his § 1983 claim to cover the individual defendants, as well as the state. Prentzel's amended complaint and proposed second amended complaint sought relief against "defendants." Prentzel here contends that "defendants" included not only the state, but also the individual troopers and officers.

Allegations in a pro se complaint are sometimes held to less stringent standards than formal pleadings drafted by lawyers. As such, we consider whether the superior court should have read the term "defendants" in Prentzel's complaint to include the 1nd1v1dual— ly named troopers and officers.

Because federal law defines the elements of and defenses to a federal cause of action, we look to federal law to determine the scope of Prentzel's rights and defendants' qualified immunity.

Prentzel's § 1988 claim can be broken down into two categories: a claim against the arresting troopers and a claim against the troopers' supervisors. Before addressing these categories, however, we first must consider a threshold legal question applicable to both categories: whether Prentzel intended to sue the individual defendants in their personal or in their official capacities.

Prentzel's § 1983 claim did not specifically allege in what capacities the defendants acted. If his complaint is read to allege that the troopers simply executed official policy, the troopers could not be held liable for damages under § 1983, because officials acting in their official capacities cannot be the subjects of § 1983 damages suits. But if his complaint is read to assert that the troopers acted in their personal capacities when they allegedly violated his federal rights, it may assert a actionable § 1983 damages claim. Because the parties did not brief this issue below and have not briefed it on appeal, and because the limited proceedings to date do not permit us to decide it as a matter of law, we decline to reach the issue. But the following comments are appropriate.

We look to the nature of Prentzel's claim, the relief sought, and the course of proceedings to determine whether he intended to sue the defendants in their personal or official capacities. Prentzel's amended complaint and proposed second amended complaint allege that the "defendants" were effectuating "customs or policies" under color of state law when they allegedly violated his federal rights. This implies that Prentzel claimed that the defendants were acting in their official capacities when they committed the complained-of actions. Prentzel's opposition to the state's motion to dismiss his § 1983 claim expresses no intention to sue the defendants in their personal capacities. But Prentzel's pleadings request both monetary and injune-tive relief, and monetary relief is only available in personal-capacity lawsuits Furthermore, the parties do not agree on appeal whether the defendants are entitled to qualified immunity, and qualified immunity is likewise only available in personal-capacity lawsuits.

1. Troopers Scott and Gilmore

The state defendants argue that Prentzel's claim against Troopers Scott and Gilmore is "preposterous" because neither of these arresting troopers "had ever engaged in any of [the] so-called eustoms and policies of the AST that Prentzel alleges." If the troopers were simply executing official policy, they could not be held liable under § 1988. But if, as Prentzel's pleadings impliedly allege, Troopers Seott and Gilmore violated Prentzel's federally created rights while they were acting under color of state law, they could be personally liable under § 1983.

The distinction between personal and official capacity is critical in determining liability under $ 1988. If Troopers Scott and il-more acted in their official capacities there would be no § 1983 liability for damages because "neither a State nor its officials acting in their official capacities are 'persons' under § 1988." Prentzel's amended complaint and proposed second amended complaint allege that the "defendants" violated § 1983 by effectuating under color of state law "customs or policies" that deprived him of federally created rights. The state defendants argue that Troopers Scott and Gilmore believed that Prentzel was either committing a crime in their presence or violating his conditions of release. They argue that Troopers Scott and Gilmore carried out the arrest in their official capacity. We cannot determine from the pleadings alone whether Troopers Scott and Gilmore acted beyond the scope of their official capacities in arresting Prentzel. We therefore cannot determine at this stage of the litigation whether Prentzel has a viable § 1983 claim for damages against Troopers Scott and Gilmore.

Prentzel further argues that it was an abuse of discretion to deny his motion to amend his complaint to allege malice expressly. We held in Part IILC in context of the state tort claim against Troopers Scott and Gilmore that denial was an abuse of discretion. But it was not an abuse of discretion in context of the § 1988 claim. The Supreme Court purposely disposed of the subjective element of the immunity defense, and "(blare allegations of malice" are now effectively irrelevant to a § 1988 claim.

We hold that it is not obvious from the pleadings alone that Prentzel's § 1988 claim against Troopers Seott and Gilmore is without merit. 'We remand for reinstatement of that claim. But we also hold as to the § 1988 claim that it was not error to deny the motion to amend to allege malice.

2. Captain Tanner and Colonel God-frey

Prentzel argues that the § 1983 claims against "the individual defendants were improperly dismissed." His argument, as discussed above, is that the term "defendants" in his complaint included the individual defendants and was not limited to the state agency. Prentzel's brief does not mention Captain Tanner and Colonel Godfrey with respect to his § 1983 claim. But his proposed second amended complaint states that the "customs and/or policies of defendants deprive[dl[him] of rights secured to him under the United States Constitution." He does not specify the customs or policies to which he refers, but he is not required to specify them at the pleading stage."

The Supreme Court has held that "the inadequacy of police training may serve as the basis of § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." We held in Hildebrandt v. City of Fairbanks that "training can justifiably be said to represent ... policy [when] 'the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy-makers can reasonably be said to have been deliberately indifferent to the need." We allowed the § 1983 claim to go forward in Hildebrandt because it was against the City of Fairbanks, which is a "person" for purposes of § 1983. But Captain Tanner and Colonel Godfrey are employees of a state agency, which is not a "person" for purposes of § 1988 suits.

A $ 1983 claim would lie against Captain Tanner and Colonel Godfrey if Prentzel could show that they adopted, outside their official capacities, the customs or policies he alleges, causing violations of his civil rights. 'This would require evidence of their personal involvement in a violation of Prentzel's rights, and not simply evidence of their status as supervisors of Troopers Seott and Gilmore. "A supervisor may be liable under § 1983 only if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." A sufficient showing of personal involvement could include demonstrating that Captain Tanner and Colonel Godfrey "created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, or showed deliberate indifference in supervising Troopers Scott and Gilmore.

It is not apparent from Prentzel's brief how he thinks Captain Tanner and Colonel Godfrey acted in their personal capacities in allegedly violating his federally created rights. The amended complaint and proposed second amended complaint do not allow us to determine whether the actions of Captain Tanner and Colonel Godfrey were outside the scope of their official capacities, and they do not permit us to ascertain the possible merits of Prentzel's claim. But on remand Captain Tanner and Colonel Godfrey will be entitled to learn through discovery how Prentzel believes they violated his federally created rights. Prentzel's responses may well make his § 1983 claim vulnerable to an immunity defense on summary judgment.

E. We Do Not Reach Prentzel's "Bivens" Claim Because the Issue Is Inadequately Briefed.

Citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, Prentzel urges us to "recognize a cause of action arising directly under the Alaska Constitution" due to "a flagrant violation [for which Prentzel]l has no available alternative remedy." The state defendants argue that the superior court "correctly found that the conduct alleged by Prentzel was not a flagrant violation of Prentzel's rights," and that Prentzel's claims are "identical to those already asserted by Prentzel as common law torts."

Prentzel has inadequately briefed this issue. Even applying a more relaxed standard for a pro se appellant, we will not consider this issue on appeal. We have not previously decided whether to recognize such a cause of action, and this case does not provide a suitable opportunity to do so.

IV. CONCLUSION

We REVERSE the dismissal of Prentzel's negligence claims against the state defendants and his § 1983 claim against Troopers Seott and Gilmore, Captain Tanner, and Colonel Godfrey, and REMAND for further proceedings. We consequently also VACATE the superior court's award of attorney's fees to the state defendants. We AFFIRM the dismissal of Prentzel's damages claim alleging a violation of the Alaska Constitution.

      . Because this appeal is taken from an Alaska Civil Rule 12(c) dismissal, we read the facts alleged in the pleadings and the inferences to be drawn therefrom in a light most favorable to the non-movant. Hebert v. Honest Bingo, 18 P.3d 43, 46-47 (Alaska 2001).

      . The troopers also arrested Prentzel for resisting arrest and possessing marijuana.

      . Hebert, 18 P.3d at 46 (citing Noey v. Bledsoe, 978 P.2d 1264, 1271 n. 19 (Alaska 1999)).

      . Id. at 47 (citing Cmartes Aran Waricet & Arreur Muter, Feperar Practice & Procepure § 1368, at 527-28 (2d ed.1990)}.

      . AS 12.25.030 addresses, among other things, grounds for arrest by a peace officer without a warrani. At the time of Prentzel's arrest, AS 12.25.030 did not include arrest for violating the conditions of release from a DWI charge.

      . The rule states in part that ""a party may amend the party's pleading only by leave of court ... and leave shall be freely given when justice so requires." Alaska R. Civ. P. 15(a).

      . Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986) (citations omitted).

      . Thompson's Estate v. Mercedes-Benz, Inc., 514 P.2d 1269, 1271 (Alaska 1973) (citation omitted).

      . Id.

      . See Kleinhans v. Lisle Sav. Profit Sharing Trust, 810 F.2d 618, 627 (7th Cir.1987) (affirming denial of motion to amend ERISA complaint under Federal Civil Rule 15(a) where amendment to add punitive damages claim would be fruitless because statute did not permit recovery of punitive damages).

      . Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 160 (Alaska 1987).

      . Samaniego v. City of Kodiak, 2 P.3d 78, 83-84 (Alaska 2000) ("[PJolice officers, as municipal officers, concurrently enjoy qualified immunity for certain discretionary actions."); see also 1 Civit Actions Acamst Stare Anp Locat Government § 4.5, at 308 (Shephard's Editorial Staff eds., 2d ed. 1992) ("Generally speaking, absolute immunity applies only to judges, legislators, and the highest executive officers of various levels of state government[;] ... other public officers are covered by qualified immunity.").

      . See Aspen Exploration, 739 P.2d at 158 (citation omitted) (explaining that allegations of malice generally create factual disputes precluding summary adjudication).

      . Id. at 160 & n. 24.

      . Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska 2000) (quoting D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981)).

      . See Hildebrandt v. City of Fairbanks, 863 P.2d 240, 245-46 (Alaska 1993) (remanding § 1983 inadequate police training claim because genuine issues of material fact preclude summary judgment).

      . Guerrero, 6 P.3d at 255.

      . Angnabooguk v. State, 26 P.3d 447, 452 & n. 18 (Alaska 2001) (holding that internal rules and guidelines of state agency do not create duty of care); Estate of Day v. Willis, 897 P.2d 78, 81 n. 7 (Alaska 1995) (holding that internal administrative and training manual used by police did not impose duty of care to fleeing suspects).

      . Our decisions addressing duties owed by public officials and related immunity issues usually do not involve dismissals at the pleadings stage. Guerrero, 6 P.3d at 261 & n. 77 (holding that dismissal on pleadings on discretionary function immunity grounds was inappropriate). See also Hildebrandt, 863 P.2d at 245 (holding that material fact relating to adequacy of supervision defeats summary judgment on § 1983 inadequate training claim).

      . AS 09.50.250 provides in part:
      A person ... having a ... tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim.... However, an action may not be brought under this section if the claim
      (1) ... is an action for tort, and is 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. ...

      . E.g., Guerrero, 6 P.3d at 259; State v. Abbott, 498 P.2d 712, 721 (Alaska 1972) (adopting "planning/operational" approach).

      . Guerrero, 6 P.3d at 259.

      . Id. at 261.

      . See generally id. at 261-62 (discussing planning/operational distinction); Civit Actions § 2.7, at 113-14, § 2.10, at 125-26 (same). But see Biscoe v. Arlington County, 738 F.2d 1352, 1363 (D.C.Cir.1984) (holding that supervising and instructing is operational, not planning).

      . 42 U.S.C. § 1983 provides, in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be Hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . Prentzel's proposed second amended complaint includes a claim against "Sergeant John Doe." Because the parties do not discuss whether this unnamed officer may properly be a defendant in this current action, we do not reach this issue.

      . Eg., Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

      . The parties do not brief the issue of injunctive relief, and we do not reach it. We refer throughout only to Prentzel's § 1983 damages claim.

      . Brown v. Ely, 14 P.3d 257, 259 (Alaska 2000).

      . In Will v. Michigan Department of State Police, the Supreme Court held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Court reasoned that damages suits against officials in their official capacities are no different from suits against the state itself. Id. On the other hand, suits for injunctive relief under § 1983 may be brought against officials acting in their official capacities because " 'official-capacity actions for prospective relief are not treated as actions against the state.' " Id. at n. 10 (citation omitted).

      . Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citation omitted); see also Okwa v. Harper, 360 Md. 161, 757 A.2d 118, 135 (2000).

      . Biggs v. Meadows, 66 F.3d 56, 61-62 (4th Cir.1995) (describing and adopting majority approach to determining nature of § 1983 claim when plaintiff fails to specifically allege capacity).

      . Kentucky, 473 U.S. at 166, 105 S.Ct. 3099.

      . Id.

      . The state defendants add that Troopers Scott and Gilmore arrested Prentzel on only a single occasion. Arrest on a single occasion is not likely to constitute a "custom" or "policy." See 1 Surppon Nazmop, Civic Riouts Anp Civit LisertEes Limeation § 6:38, at 6-129 (4th ed. 1997) ("A single incident of police officer misconduct ... is clearly not sufficient.").

      . Kentucky, 473 U.S. at 166, 105 S.Ct. 3099; see also Okwa, 757 A.2d at 135.

      . Will, 491 U.S. at 71, 109 S.Ct. 2304.

      . We do not reach the issue whether Troopers Scott and Gilmore are entitled to qualified immunity because there are unresolved factual issues as to whether they acted in their official or personal capacities.

      . Harlow v. Fitzgerald, 457 U.S. 800, 817-18 & n. 30, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Okwa, 757 A.2d at 138.

      . Troopers Scott and Gilmore are entitled to protection from the § 1983 claim on official immunity grounds if they can establish that a reasonable officer could have believed that their conduct was lawful, even if it actually was not. But as a pleading matter Prentzel did not have to allege both that their conduct was unlawful and that no reasonable officer could have thought that it was lawful.

      . To survive dismissal of the § 1983 claim against Captain Tanner and Colonel Godfrey, the complaint must at least allege training or supervision failures. Meza v. Lee, 669 F.Supp. 325, 326-27 (D.Nev.1987). Prentzel's complaint satisfies this minimal requirement by alleging that Captain Tanner and Colonel Godfrey negligently failed to train and supervise Troopers Scott and Gilmore.

      . City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 LEd.2d 412 (1989); see generally Naxmon, §§ 6:33 to 6:37, at 6-117 to 6-129 (discussing requirements for pleading custom).

      . 863 P.2d 240, 246 (Alaska 1993) (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).

      . Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 LEd.2d 611 (1978) (holding that local governments may be sued as "persons" under § 1983 for unconstitutional policies, practices, and customs); see also Narmon § 6:5, at 6-15 to 6-19.

      . Will, 491 U.S. at 65-66, 109 S.Ct. 2304.

      . Respondeat superior does not apply in § 1983 actions. Monell, 436 U.S. at 691, 98 S.Ct. 2018; see also Naumop § 3:91, at 3-246 to 3-247.

      . Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001).

      . Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted); see also Naxmop § 6:38, at 6-129 to 6-130.

      . See City of Canton, 489 U.S. at 388, 109 S.Ct. 1197.

      . 403 U.S. 388, 91 S.Ct. 1999, 29 LEd.2d 619 (1971).

      . Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 737 (Alaska 1999) (citation omitted).

      . Brown, 14 P.3d at 261-62.