      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

RICHARD A. MATTOX,              )
                                )                       Supreme Court No. S-16031
           Appellant,           )
                                )                       Superior Court No. 3PA-09-01695 CI
     v.                         )
                                )                       OPINION
STATE OF ALASKA,                )
DEPARTMENT OF CORRECTIONS, )                            No. 7170 – May 19, 2017
                                )

           Appellee.            )

_______________________________ )


              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Palmer, Vanessa White, Judge.

              Appearances: Benjamin I. Whipple, Palmer, for Appellant.
              Susan M. West, Assistant Attorney General, Anchorage, and
              Craig W. Richards, Attorney General, Juneau, for Appellee.

              Before: Stowers, Chief Justice, Maassen, Bolger, Justices.
              [Winfree and Carney, Justices, not participating.]

              STOWERS, Chief Justice.

I.    INTRODUCTION
              In July 2009 Richard Mattox filed suit against the Department of
Corrections (DOC) for injuries arising from an assault by another prisoner. Mattox
alleged that DOC was negligent in failing to accommodate his requests for transfer to a
different housing module prior to the assault and that DOC was negligent in permitting
the correctional officer on duty to leave the module during the time the assault occurred.
The superior court granted DOC’s motion for partial summary judgment regarding
classification and housing assignments and then granted DOC’s motion for summary
judgment on all other causes of action. On appeal, we remanded for further proceedings
because there was a material question of fact regarding the foreseeability of the assault.
              At trial the parties discussed a jury instruction on discretionary function
immunity, and the superior court gave the agreed upon instruction to the jury. The jury
returned a verdict in favor of DOC. Following trial the judge invited the parties and
counsel to meet informally with the jury. During that informal meeting, some of the
jurors mentioned that the jury had applied the doctrine of discretionary function
immunity when deciding whether DOC was negligent in permitting the correctional
officer to leave the module unattended during the time Mattox was assaulted.
              Mattox moved for a new trial on the grounds that the jury erroneously
applied the doctrine of discretionary function immunity in reaching its verdict when that
question should have been decided by the court before trial. The court denied that motion
and Mattox appeals. We conclude that because Mattox consented to have the jury apply
an accurate statement of discretionary function immunity to the facts as the jury found
them, he waived any challenge to the jury’s application of the doctrine and the superior
court committed no error by allowing the jury to apply the doctrine rather than applying
the doctrine itself sua sponte. We therefore affirm the superior court’s denial of Mattox’s
motion for a new trial.
II.    FACTS AND PROCEEDINGS
              In July 2007 Richard Mattox and several other inmates were watching
television in the Kilo housing module at Spring Creek Correctional Center in Seward.1
Roxanne Dash, the correctional officer assigned to the Kilo module, briefly stepped away


       1
              See Mattox v. State, Dep’t of Corr., 323 P.3d 23, 25 (Alaska 2014).

                                            -2-                                      7170
from her desk to deliver paperwork to the module office. During the television show,
another inmate, Vincent Wilkerson, told Mattox to be quiet.2 Mattox turned to a friend
and asked if Wilkerson had been addressing Mattox.3 Wilkerson then punched Mattox
on the left side of his face.4
              Mattox developed a bloody nose as a result of the blow, and he used a
nearby intercom to alert the control room that he needed medical attention.5 The control
room officer radioed Correctional Officer Dash, and she immediately returned to the
television room. Mattox told Dash that he had been assaulted and eventually identified
Wilkerson as his attacker. DOC later transported Mattox to Alaska Regional Hospital
in Anchorage, where doctors diagnosed him with “[l]eft periorbital fractures,” a “right
maxillary sinus fracture[,] and a nasal fracture.” After doctors performed surgery on
Mattox, he returned to Spring Creek Correctional Center.
              In July 2009 Mattox filed suit against DOC for injuries arising from the
assault. Mattox alleged that DOC was negligent in failing to accommodate his requests
for transfer to a different housing module prior to the assault and that DOC was negligent
in permitting Correctional Officer Dash to leave the module during the time the assault
occurred. The superior court granted DOC’s motion for partial summary judgment
regarding classification and housing assignments and then granted DOC’s motion for
summary judgment on all other causes of action. On appeal, we remanded for further




       2
              Id.
       3
              Id.
       4
              Id.
       5
              Id.

                                           -3-                                      7170

proceedings because there was a material question of fact regarding the foreseeability of
the assault.6
                The matter proceeded to trial in the superior court in January 2015. At trial,
DOC addressed Mattox’s claims that it ignored his requests for placement in a different
housing module, that these requests should have indicated to DOC that an assault was
likely to occur, and that DOC’s refusal to move Mattox to another housing module
facilitated the assault. Correctional officers testified that Mattox often requested transfer
out of his general population housing module and into a quieter module.                   But
correctional officers explained that Mattox did not qualify for placement in the units
Mattox requested. Correctional officers also testified that Mattox had never expressed
concern for his safety, reported threats from other inmates in his housing module, or
requested protective custody independently of or in connection with his requests for
transfer to another module.
                DOC also addressed Mattox’s claims that DOC was negligent because
Correctional Officer Dash left the housing module and the assault occurred during her
absence. Correctional officers and the assistant superintendent of the prison system
explained that DOC policy permits module officers to briefly leave their desks to deliver
paperwork to the module office, perform administrative duties, take bathroom breaks,
obtain supplies, interview inmates in a more private setting, assist inmates with specific
tasks, or respond to emergencies.
                During trial the superior court held a hearing outside the presence of the
jury to discuss proposed jury instructions. DOC proposed a jury instruction which read:
                You may not find that DOC failed to exercise reasonable care
                toward Richard Mattox because of how DOC made decisions
                regarding the allocation of money, employees, and other

       6
                Id. at 28-30.

                                              -4-                                       7170
              resources. DOC cannot be held liable for its resource
              allocation decisions. For example, you may not find DOC
              negligent because it did not have cameras installed in each of
              its housing modules. You may only consider whether DOC
              employees who had responsibilities toward Richard Mattox
              exercised reasonable care, given the money, employees, and
              other resources available to them under the circumstances.
Mattox did not object to the DOC’s proposed instruction. The trial judge ultimately
announced her intention to instruct the jury as follows in Jury Instruction No. 13:
              You may not find that DOC failed to exercise reasonable care
              toward Richard Mattox because of how DOC made decisions
              regarding the allocation of money, employees, and other
              resources. DOC cannot be held liable for its resource
              allocation decisions. You may only consider whether DOC
              employees who had responsibilities toward Richard Mattox
              exercised reasonable care.
Mattox also did not object to this modified instruction. The trial judge read Jury
Instruction No. 13 aloud before the jury began its deliberations. The jury returned a
verdict in favor of DOC.
              Following trial, the judge invited the parties and counsel to meet informally
with the jury. During that informal meeting some of the jurors mentioned that the jury
had applied the doctrine of discretionary function immunity when deciding whether
DOC was negligent for having left the module unattended by a correctional officer
during the time Mattox was assaulted.
              Mattox moved for a new trial.7 He argued that the jury erroneously applied
the doctrine of discretionary function immunity in reaching its verdict. He also argued
that the DOC’s practice and policy of allowing correctional officers to briefly leave

       7
              See Alaska R. Civ. P. 59(a) (“A new trial may be granted to all or any of
the parties and on all or part of the issues in an action in which there has been a trial by
jury or in an action tried without a jury, if required in the interest of justice.”).

                                            -5-                                       7170

common areas to attend to other matters was a “dangerous institutional practice” that
increased the risk of harm to inmates. DOC opposed the motion and after oral argument
the superior court denied the motion and entered judgment in favor of DOC.
              Mattox appeals, arguing that Jury Instruction No. 13 was not meant to apply
to the issue of whether DOC was negligent for leaving the module unattended, but rather
that
              [DOC] had raised the state discretionary function immunity
              defense to excuse the prison’s inoperable video monitoring
              system. . . . Neither through pre-trial motion practice, nor in
              the court and counsel discussions regarding jury instructions
              during trial, when the jury was excused, did anyone apply the
              discretionary function immunity defense to the context of
              floor officers leaving the mod[ule] unattended.
He explains that “[n]either party anticipated the jury’s application of the discretionary
function immunity doctrine to [DOC]’s practice of permitting the floor officer to briefly
leave the mod[ule] unattended.”
III.   STANDARD OF REVIEW
              “We have expressed great reluctance to interfere with a superior court’s
decision to deny a new trial, absent exceptional circumstances.”8 “The decision to grant
or deny a new trial is . . . within the trial court’s sound discretion.”9 “We review denial
of a new trial under an abuse of discretion standard wherein we disturb the trial court’s
discretion only in the most exceptional circumstances to prevent a miscarriage of



       8
             Marron v. Stromstad, 123 P.3d 992, 1011 (Alaska 2005) (first citing Alaska
Children’s Servs., Inc. v. Smart, 677 P.2d 899, 901 (Alaska 1984); then citing Getchell
v. Lodge, 65 P.3d 50, 53 (Alaska 2003)).
       9
            Id. at 998 (citing Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173
(Alaska 2002)).

                                            -6-                                      7170

justice.”10 “[G]enerally the verdict should stand unless the evidence clearly establishes
a serious violation of the juror’s duty and deprives a party of a fair trial.”11
              “ ‘We review jury instructions de novo when a timely objection is made.’
Absent a timely objection, we review only for plain error.”12 “Plain error will be found
when an obvious mistake exists such that the jury instruction creates ‘a high likelihood
that the jury will follow an erroneous theory resulting in a miscarriage of justice.’ ”13
IV.	   DISCUSSION
       A.	    Mattox’s Post-Trial Discussions With Jurors Were Not Admissible
              When Determining Whether To Grant His Motion For A New Trial.
              Generally, under Alaska Evidence Rule 606(b) a court may not rely upon
the jury’s mental processes in reaching a verdict or a juror’s testimony, affidavits, or
other statements about what occurred during jury deliberations when determining
whether to grant a new trial.14 At the same time, Evidence Rule 606(b) carves out an
exception to this general rule when “extraneous prejudicial information was improperly
brought to the jury’s attention or . . . any outside influence was improperly brought to



       10
            Alaska Fur Gallery, Inc. v. First Nat’l Bank Alaska, 345 P.3d 76, 83
(Alaska 2015) (quoting Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska
2007)).
       11
            West v. State, 409 P.2d 847, 852 (Alaska 1966) (citing State v. Gardner,
371 P.2d 558, 561 (Or. 1962)).
       12
            Alaska Fur Gallery, 345 P.3d at 83-84 (quoting Cummins, Inc. v. Nelson,
115 P.3d 536, 541 (Alaska 2005)).
       13
            Kingery v. Barrett, 249 P.3d 275, 280-81 (Alaska 2011) (quoting Ollice v.
Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983)).
       14
            Alaska R. Evid. 606(b); see also Titus v. State, 963 P.2d 258, 260 (Alaska
1998); Larson v. State, 79 P.3d 650, 654-60 (Alaska App. 2003).

                                            -7-	                                     7170

bear upon any juror.”15 The exception is meant to “ensur[e] that verdicts are accurate
and that they are reached through a fair process.”16
              In post-trial interviews, some jurors revealed that they had applied the
discretionary function immunity doctrine to the question whether DOC was negligent in
permitting correctional officers to briefly leave their posts in the modules. Those post-
trial discussions with jurors formed the basis for Mattox’s motion for a new trial. Mattox
concedes that post-trial discussions with jurors are generally inadmissible in the superior
court’s consideration of a motion for a new trial. However, Mattox argues that when
deciding whether DOC was negligent for leaving the module unattended during the time
the assault occurred, both Jury Instruction No. 13 and the jury deliberations surrounding
it were “extraneous prejudicial information” that impacted the jury’s decision because
Jury Instruction No. 13 was not meant to apply to that issue. We address each of these
arguments in turn.
              1.	    Jury Instruction No. 13 did not constitute extraneous prejudicial
                     information under Alaska Evidence Rule 606(b).
              Mattox argues that “the jury’s exposure to the unvetted discretionary
function immunity [instruction] did, in and of itself, constitute ‘extraneous prejudicial
information . . . brought to the jury’s attention’ within the meaning of [Evidence]
Rule 606(b), and could thus be considered by the court.” We find this argument without
merit.




         15
              Alaska R. Evid. 606(b).
         16
           Titus, 963 P.2d at 261 (citing 27 CHARLES A. WRIGHT & VICTOR J. GOLD,
FEDERAL PRACTICE AND PROCEDURE § 6075 (1990)).

                                            -8-	                                     7170

             In the context of Evidence Rule 606(b), “ ‘extraneous’ information refers
to information that reaches the jury other than through the normal trial processes.”17 In
Turpin v. State, the Alaska Court of Appeals held that because a prosecutor’s
objectionable opening statement was brought to the jury’s attention through normal trial
processes, it was not extraneous information under Evidence Rule 606(b).18 The court
of appeals further explained that interpreting extraneous information to include the
prosecutor’s opening statement
             would essentially gut Rule 606(b), since it would allow
             impeachment of a verdict whenever the jurors heard improper
             arguments of counsel, improperly admitted evidence, or any
             questions or answers to which objections were sustained.
             Because claims of such errors arise at practically every trial,
             virtually any jury verdict would be subject to inquiry under
             [such a] reading of Rule 606(b).[19]
             Similarly, in Tellier v. Ford Motor Co., we affirmed the denial of a motion
for a new trial despite the admission of medical records for jury consideration containing
information that should have been redacted.20 In part because the parties could have
inspected those records before trial and because the court had instructed the parties to
review the records to ensure that they did not contain inadmissible evidence, we
concluded that the records did not constitute extraneous information.21 And in Titus v.



      17
           Turpin v. State, 890 P.2d 1128, 1131 (Alaska App. 1995) (citing 2STEPHEN
A. SALTZBURG, ET AL., FEDERAL RULES OF EVIDENCE MANUAL 777 (6th ed. 1994)).
      18
             Id. at 1130-31.
      19
             Id. at 1131.
      20
             827 P.2d 1125, 1127 & n.1 (Alaska 1992).
      21
             Id. at 1127-28.

                                           -9-                                      7170

State, we again confirmed that “information coming to the jury through the trial process
cannot be considered extraneous.”22
              In this case Jury Instruction No. 13 came to the jury through normal trial
processes.    Before trial, DOC proposed three jury instructions addressing the
discretionary function immunity doctrine. Mattox did not object to DOC’s proposed
instruction No. 30, and the superior court proposed a modified version of this instruction.
Neither DOC’s original proposal nor Jury Instruction No. 13 contained language
precluding application of the discretionary function immunity doctrine to whether DOC
was negligent for leaving the module unattended during the time the assault occurred.
Mattox stated that Jury Instruction No. 13 “seemed appropriate,” and again did not
object. The court then read that instruction aloud to the jurors and provided the jury with
its written instructions for the jury’s reference during deliberations.
              Mattox cites three federal cases that he claims support his position that Jury
Instruction No. 13 was itself extraneous information when applied to the issue whether
DOC was negligent in permitting Correctional Officer Dash to briefly leave the housing
module. However, unlike the jurors here, in these federal cases the jurors inadvertently
or improperly learned of extraneous information that was never intended for their
consideration.23 In other words, the information the jurors received in these three cases

       22
             963 P.2d 258, 260 (Alaska 1998) (citing Tellier, 827 P.2d at 1127 n.1;
Turpin, 890 P.2d at 1131).
       23
              See United States v. Hall, 85 F.3d 367, 368-69 (8th Cir. 1996) (ordering an
evidentiary hearing to consider a new trial where jurors overheard the judge at a bench
conference discussing the defendant’s involvement in various illegal activities unrelated
to the charges brought in that case); United States v. Scisum, 32 F.3d 1479, 1481-83
(10th Cir. 1994) (ordering a new trial when the judge met alone with a juror before the
jury announced its verdict without alerting either party to the meeting until after the jury
returned its verdict); United States v. Bruscino, 662 F.2d 450, 456-61 (7th Cir. 1981)
                                                                             (continued...)

                                           -10-                                       7170

did not come through the normal trial process. We conclude that Jury Instruction No. 13
did not constitute extraneous information under Evidence Rule 606(b). Consequently,
the juror statements upon which Mattox relied in his motion for a new trial were not
admissible.
              2.	   Jurors’ thoughts and analyses surrounding Jury Instruction
                    No. 13 were not extraneous prejudicial information under
                    Alaska Evidence Rule 606(b).
              Mattox also contends that the jurors’ thoughts, analyses, and deliberations
on whether to apply discretionary function immunity to DOC’s decision to permit
Correctional Officer Dash to leave the module unattended were extraneous. Mattox
argues that “[b]y coming up with their own homebrew legal analysis . . . jury members
improperly brought to the jury’s attention ‘extraneous, prejudicial information’ within
the meaning of [Evidence] Rule 606(b). The fact of the jury’s exposure to this analysis
should therefore be admissible for the court to consider.” Mattox’s argument suggests
that a portion of the jury’s deliberation was itself extraneous and led to the incorrect
application of Jury Instruction No. 13 to the issue of unattended modules.
              We have never directly addressed whether Evidence Rule 606(b)’s
exception applies to a jury’s application of jury instructions. However, we have
previously recognized that a juror’s pre-existing knowledge of a general nature — the
type of knowledge and reasoning that a juror might use when applying a specific jury
instruction to an issue raised at trial — does not constitute extraneous prejudicial




      23
        (...continued)
(ordering a new trial when the jurors mistakenly received documents not admitted into
evidence, including a document containing references to the defendant’s connection to
the “Mexican Mafia” and a newspaper clipping about the trial).

                                          -11-	                                    7170

information under Evidence Rule 606(b).24 Like pre-existing knowledge, a juror’s
interpretation and application of jury instructions also falls squarely within the rule’s
prohibition against questioning jurors about their mental processes.           Evidence
Rule 606(b) provides that “a juror may not be questioned as to . . . the effect of any
matter or statement upon that or any other juror’s mind or emotions as influencing the
juror to assent to or dissent from the verdict or indictment or concerning the juror’s
mental processes in connection therewith.”25 Clearly, a juror’s understanding of jury
instructions — as a mental process that influences the juror to assent or dissent from a
verdict — falls within this prohibition. This result is consistent with the longstanding
principle that a juror is not competent to impeach her own verdict26 and we join those
courts that have extended this basic principle to exclude a juror’s general understanding
and application of jury instructions from the definition of extraneous prejudicial




      24
             See Titus, 963 P.2d at 262 (“[A] juror who discusses his or her general
knowledge during deliberations, such as a familiarity with x-ray technology, has not
introduced extraneous prejudicial information into the jury room.” (citing Hard v.
Burlington N. R.R. Co., 870 F.2d 1454, 1462 (9th Cir.1989))); see also Larson v. State,
79 P.3d 650, 654 (Alaska App. 2003) (concluding that the jurors’ general knowledge
regarding the characteristics of glass used in a construction vehicle and how loud a shot
from a .22 caliber rifle would be does not constitute “extraneous prejudicial
information”).
      25
             Alaska R. Evid. 606(b).
      26
              See Mattox v. United States, 146 U.S. 140, 149 (1892).

                                          -12-                                     7170

information.27 We conclude that the jurors’ statements regarding their application of the
discretionary function immunity doctrine and Jury Instruction No. 13 were inadmissible.
       B.     The Superior Court Did Not Err In Issuing Jury Instruction No. 13.
              As explained above, Mattox’s motion for a new trial is flawed under
Evidence Rule 606(b), and Mattox may not rely on the jurors’ post-trial statements to
support his motion for a new trial. Mattox separately argues that the superior court
plainly erred in failing to determine sua sponte whether the doctrine of discretionary
function immunity applied to DOC’s staffing policy permitting correctional officers to
briefly leave their housing modules unattended. We address this argument without
considering the inadmissible statements by the jurors.
              Mattox notes that “the [superior] court made no pre-trial or mid-trial
decisions on the application of the discretionary immunity defense,” effectively leaving
“the jury free to decide for itself the scope and application of the state discretionary
function immunity doctrine.” He argues that the superior court, by issuing Jury
Instruction No. 13, erroneously “transferred the entire determination of [the discretionary
function immunity] defense to the jury,” and he takes issue with the fact that DOC “did
not prove and the [superior] court did not rule that officer absence was tied to allocation
of staffing resources and therefore [DOC] was entitled to discretionary immunity.”
Lastly, Mattox suggests that the language of the instruction itself was flawed because “it

       27
              See Gale v. City of Tecumseh, 156 F. App’x 801, 811 (6th Cir. 2005)
(determining that Federal Evidence Rule 606(b) “contemplates only external interactions
with the jury that may have tainted the deliberation process, and . . . ‘explicitly
disqualifies juror testimony regarding jurors’ mental processes in connection with
deliberations’ ” (quoting United States v. Gonzales, 227 F.3d 520, 525 (6th Cir. 2000)));
Campbell v. State, 432 S.W.3d 673, 678 (Ark. App. 2014) (holding that “a juror’s
understanding of the jury instructions and its effect on her deliberation” cannot be used
as a basis for granting a new trial under Arkansas’s Evidence Rule 606(b) (emphasis
omitted)).

                                           -13-                                      7170

conveys that questions of resource allocation and immunity are up to the jury.” Mattox
asserts that the superior court’s failure to decide the matter and its decision to instead
issue a jury instruction were plain error.
              “ ‘We review jury instructions de novo when a timely objection is made.’
Absent a timely objection, we review only for plain error.”28 “Plain error will be found
when an obvious mistake exists such that the jury instruction creates ‘a high likelihood
that the jury will follow an erroneous theory resulting in a miscarriage of justice.’ ”29
              1.     The language of Jury Instruction No. 13 was not erroneous.
              Instead of making its own decision on the applicability of discretionary
function immunity, the superior court offered Jury Instruction No. 13 for the jury to
decide whether DOC’s conduct was protected by discretionary function immunity. On
its face, Jury Instruction No. 13 is a correct statement of the law.                  Alaska
Statute 09.50.250(1) grants the State immunity from suit for matters involving
discretionary functions and the implementation of policy decisions.30 “Discretionary

       28
            Alaska Fur Gallery, Inc. v. First Nat’l. Bank Alaska, 345 P.3d 76, 83-84
(Alaska 2015) (quoting Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005)).
       29
            Kingery v. Barrett, 249 P.3d 275, 280-81 (Alaska 2011) (quoting Ollice v.
Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983)).
       30
               AS 09.50.250(1) (“A person or corporation having a contract,
quasi-contract, or 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 if the claim . . . is an action for tort, and 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.”);
Estate of Arrowwood v. State, 894 P.2d 642, 646 (Alaska 1995) (“It is well established
that both legislative appropriations and executive department budget decisions are
discretionary functions immune from judicial inquiry.”); Indus. Indem. Co. v. State,
669 P.2d 561, 564-65 (Alaska 1983) (“Decisions regarding the allocation of scarce
                                                                                (continued...)

                                             -14-                                       7170

function immunity ‘seeks to ensure that private citizens do not interfere with or inhibit
the governing process by challenging through private tort actions basic governmental
policy decisions.’ ”31 Under AS 09.50.250(1) the State and its agencies are immune from
suit when the plaintiff’s claim 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.”32
              In determining whether a particular decision or action is immune, we have
adopted a test “distinguish[ing] between decisions that involve basic planning or policy
and those that are merely operational in the sense that they implement plans or carry out
policy.”33 More specifically, “[p]lanning decisions ‘fall under the exception because they
involve formulation of basic policy’ including consideration of financial, political,
economic, or social effects of the policy. ‘Normal day-by-day operations of the
government’ are not planning decisions and are not entitled to immunity under the
discretionary function exception.”34 Under this analysis, “[a]ctions that are operational
in nature, and therefore not entitled to discretional immunity, are those that involve either


       30
        (...continued)
resources are usually discretionary, and thus immune from judicial inquiry.” (citing
Wainscott v. State, 642 P.2d 1355, 1357 n.6 (Alaska 1982))).
       31
              Steward v. State, 322 P.3d 860, 863 (Alaska 2014) (quoting Japan Air
Lines Co. v. State, 628 P.2d 934, 936 (Alaska 1981)).
       32
              AS 09.50.250(1); see also Steward, 322 P.3d at 863.
       33
            Steward, 322 P.3d at 863 (quoting Guerrero ex rel. Guerrero v. Alaska
Hous. Fin. Corp., 123 P.3d 966, 976 (Alaska 2005)).
       34
             Id. (first quoting Estate of Arrowwood, 894 P.2d at 644-45; then quoting
State v. Abbott, 498 P.2d 712, 720 (Alaska 1972)); see also State v. Dep’t of Corr. v.
Cowles, 151 P.3d 353, 358 (Alaska 2006).

                                            -15-                                       7170

no room for discretion or involve only discretion free from policy considerations.”35 The
State does not need to prove that it actually made a considered decision or policy
evaluation for a decision to be immune.36 In particular, Alaska precedent establishes that
“[d]ecisions about how to allocate scarce resources” will ordinarily be immune from
judicial review.37
              In light of our precedent, Jury Instruction No. 13 is a correct statement of
the law. Jury Instruction No. 13 instructs:
              You may not find that DOC failed to exercise reasonable care
              toward Richard Mattox because of how DOC made decisions
              regarding the allocation of money, employees, and other
              resources. DOC cannot be held liable for its resource
              allocation decisions. You may only consider whether DOC


       35
              R.E. v. State, 878 P.2d 1341, 1349 (Alaska 1994) (citing Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 536-37 (1988); United States v. Gaubert, 499
U.S. 315, 324-25 & n.7 (1991); Johnson v. State, 636 P.2d 47, 64-66 (Alaska 1981);
Japan Air Lines, 628 P.2d at 936-38; State v. I’Anson, 529 P.2d 188, 192-93
(Alaska 1974); Abbott, 498 P.2d at 717-22)).
       36
            State, Dep’t of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 458 n.5
(Alaska 1997) (“ ‘[S]ome jurisdictions require that a state or local governmental unit
seeking to obtain the protection of discretionary function immunity show that a
considered policy evaluation actually took place.’ Alaska does not require such a
showing.” (alteration in original) (first quoting 57 AM. JUR. 2D Municipal County,
School, and State Tort Liability § 123 (1988); then citing Indus. Indem. Co. v. State,
669 P.2d 561, 566 n.11 (Alaska 1983))).
       37
              Adams v. City of Tenakee Springs, 963 P.2d 1047, 1051 (Alaska 1998); see
also Estate of Arrowwood, 894 P.2d at 646 (“It is well established that both legislative
appropriations and executive department budget decisions are discretionary functions
immune from judicial inquiry.”); Indus. Indem. Co., 669 P.2d at 564-65 (“Decisions
regarding the allocation of scarce resources are usually discretionary, and thus immune
from judicial inquiry.” (citing Wainscott v. State, 642 P.2d 1355, 1357 n.6
(Alaska 1982))).

                                          -16-                                      7170

             employees who had responsibilities toward Richard Mattox
             exercised reasonable care.
This instruction does not misstate the holdings in Adams, Estate of Arrowwood, and
Industrial Indemnity Co., which establish that allocation decisions, including decisions
about how to allocate scarce resources like money or employees, are immune under the
doctrine of discretionary function immunity.38
             Mattox attempts to show Jury Instruction No. 13 was erroneous by arguing
that it is the same one that we found “did not adequately implement discretionary
function immunity” in our decision in State, Department of Health & Social Services v.
Mullins.39 Mattox is correct that Jury Instruction No. 13 is modeled on a portion of the
jury instruction given in Mullins,40 but we did not take issue with the portion Jury
Instruction No. 13 adopted. Rather, in Mullins, we found the following, different
language inadequate:
                     As a matter of law, you may not find [the Office of
             Children’s Services (OCS)] liable for placing [the plaintiffs]
             in foster care. . . . As a state agency, OCS is immune from
             liability for discretionary functions such as these.
                  However, you may hold OCS liable for failing to
             comply with its own policies designed to protect the children




      38
             Adams, 963 P.2d at 1051; Estate of Arrowwood, 894 P.2d at 646; Indus.
Indem. Co., 669 P.2d at 564-65.
      39
             328 P.3d 1038, 1043 (Alaska 2014).
      40
              Id. at 1040 (“You may not find that OCS failed to exercise reasonable care
toward [the plaintiffs] in making decisions regarding the allocation of money, employees
and other resources. OCS cannot be held liable for its resource allocation decisions.
You may only consider whether OCS employees who had responsibilities toward [the
plaintiffs] exercised reasonable care.”).

                                         -17-                                     7170

              under OCS care or for negligently carrying out its duties
              towards [the plaintiffs].[41]
We explained that this portion of the “instruction suggest[ed] that OCS may be held
liable for failing to carry out its ‘duties,’ discretionary function immunity
notwithstanding. . . .       But at least one of those duties involve[d] discretionary
functions.”42 Our statement that “the jury instructions given in [Mullins] did not
adequately implement discretionary function immunity” applied only to this portion of
the instruction, not the more general discussion of discretionary function immunity
mirrored in Jury Instruction No. 13.43 We therefore conclude that the specific language
of Jury Instruction No. 13 was not itself in error, as it does not contain an incorrect
statement of the law.
              2.	    The superior court did not plainly err by failing to determine
                     whether the doctrine of discretionary function immunity applied
                     to DOC’s staffing policy.
              Mattox again relies on our decision in Mullins, this time to argue that the
superior court’s failure to decide the issue of discretionary function immunity constituted
plain error. In Mullins the plaintiffs sued the Office of Children’s Services for
negligence.44 Pre-trial, “OCS moved for partial summary judgment on the ground that
several of the [plaintiffs’] claims were based on conduct protected by discretionary
function immunity.”45 The superior court denied OCS’s motion but permitted OCS to



       41	
              Id. (second alteration in original).
       42
              Id. at 1043.
       43
              Id.
       44
              Id. at 1040.
       45
              Id.

                                           -18-	                                     7170

“renew its request for immunity as to particular claims at the close of plaintiffs’ case in
chief.”46 Consequently, OCS moved for a directed verdict on discretionary function
immunity grounds.47 The court denied that motion and concluded that the scope of
OCS’s liability would be addressed through jury instructions.48 While we did not base
our decision on the superior court’s approach to discretionary function immunity, we
took the “opportunity to clarify the proper procedure for ensuring that the jury does not
hold the [S]tate liable for its discretionary acts.”49 Following our decision in State,
Department of Corrections v. Cowles, we explained,
              “[T]he allegedly negligent decisions in a particular case must
              be examined individually to determine if they are” protected
              by discretionary function immunity. The trial court should
              attempt to rule on these issues during pre-trial motion
              practice. But if specific factual questions necessary to the
              trial court’s legal determinations need to be resolved by the
              jury, specific jury interrogatories should be used. In short,
              although the jury may need to decide the factual
              underpinnings of the trial court’s conclusions, discretionary
              immunity decisions must remain with the judge.[50]
              Mattox correctly observes that “the [superior] court made no pre-trial or
mid-trial decisions on the application of the discretionary immunity defense” to DOC’s
policy permitting correctional officers to leave their modules unattended for brief periods
of time, leaving the jury “free to decide for itself the scope and application of the state

       46
              Id.
       47
              Id.
       48
              Id.
       49
              Id. at 1043.
       50
              Id. at 1044 (quoting State, Dep’t of Corr. v. Cowles, 151 P.3d 353, 359
              (Alaska 2006)).

                                           -19-                                      7170

discretionary function immunity doctrine.” During a hearing on Mattox’s motion for
new trial the superior court also acknowledged in its oral ruling that
              the proper procedure, which none of [them] followed, would
              have been for the court to ideally hold an evidentiary hearing
              prior to trial on the issues the parties reasonably could
              identify as speaking to the issue of discretionary immunity
              and to make rulings about what evidence would not be
              allowed, if any, because it was protected by that immunity.
              The alternative would have been a special verdict form that
              helped the court to preserve for itself the issues of
              discretionary immunity.
              We agree with the superior court that it is best practice to reserve questions
of discretionary function immunity for itself, but its failure to do so in this context was
not error, as it was in Mullins. In Mullins OCS had expressly requested that the superior
court decide the scope and application of discretionary immunity twice, once through a
summary judgment motion and again through a motion for a directed verdict.51 This
required the superior court to follow the procedures laid out in Mullins and decide the
issue for itself.52 Instead, the court refused to decide the matter and issued an erroneous
jury instruction.53 In contrast, Mattox made no summary judgment or directed verdict
motion regarding the issue, nor did he object to DOC’s proposed instruction. When the
superior court proposed a modified version of this instruction and presented it to both
parties Mattox again did not object. Accordingly, the court gave the legally correct
statement of the law to the jury. Thus, unlike Mullins, Mattox impliedly consented to
have the jury apply an accurate statement of the law of discretionary function immunity,


       51
              Id. at 1040.
       52
              Id.
       53
              Id. at 1043.

                                           -20-                                       7170

as articulated by the superior court, to the facts as the jury found them. We therefore
conclude that the superior court’s failure to apply the doctrine for itself sua sponte was
not error, let alone plain error.54
              Lastly, “we review denial of a new trial under an abuse of discretion
standard wherein we disturb the trial court’s discretion only in the most exceptional
circumstances to prevent a miscarriage of justice.”55 “[G]enerally the verdict should
stand unless the evidence clearly establishes a serious violation of the juror’s duty and
deprives a party of a fair trial.”56 Given that the superior court did not commit error, the
court’s decision to deny Mattox a new trial was not an abuse of discretion. In other
words, disturbing the court’s denial of a new trial is unwarranted and not necessary to
prevent a miscarriage of justice.57
V.     CONCLUSION
              We AFFIRM the superior court’s denial of Mattox’s motion for a new trial.


       54
               Under Alaska Civil Rule 51, Mattox could not “assign as error the giving
or the failure to give an instruction unless [he] object[ed] thereto before the jury retire[d]
to consider its verdict, stating distinctly the matter to which [he] object[ed] and the
grounds of the objection.” Mattox had several opportunities to object, but did not.
Instead he agreed with issuing the instruction. Now he alleges plain error on appeal, but
we conclude that neither the superior court’s approach to discretionary function
immunity in this context nor the language of the instruction given was erroneous.
       55
            Alaska Fur Gallery, Inc. v. First Nat’l Bank Alaska, 345 P.3d 76, 83
(Alaska 2015) (quoting Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska
2007)).
       56
            West v. State, 409 P.2d 847, 852 (Alaska 1966) (citing State v. Gardner,
371 P.2d 558, 561 (Or. 1962)).
       57
             We have not been asked to decide whether the jury’s application of
discretionary function immunity to DOC’s policy of allowing officers to leave modules
unattended for short periods of time was correct and we do not decide the issue here.

                                            -21-                                        7170

