dissenting in part.
I respectfully dissent with respect to the majority’s holding that it was an abuse of discretion for the superior court to dismiss appellant’s complaint with prejudice before a hearing was held on her motion to amend.
According to her memorandum filed in support of such motion, appellant indicated:
As to the STATE OF ALASKA, the Plaintiff will allege negligence concerning the posting of appropriate signs in the area, negligence in the maintenance and design of an area known to be a hazardous crossing area, as well as negligence in not having College Road designated as a hazardous route and thereafter providing transportation, or otherwise assuring safe passage of Joy School children across College Road, (emphasis added)
Thus amended, the complaint would, at most, allege only additional “planning level” failures on the part of the state. Therefore, I would affirm the judgment of the court below. Rule 15(a), Alaska R.Civ.P., does not require the trial court to indulge in futile gestures. Where a complaint, as amended, would be subject to dismissal on the same grounds upon which the initial complaint was dismissed, leave to amend should be denied. DeLoach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968).
Otherwise, I concur.