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R.E. et al v. State of Alaska (7/29/94), 878 P 2d 1341
NOTICE: This opinion is subject to formal 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,
THE SUPREME COURT OF THE STATE OF ALASKA
R.E., on his own behalf, D.E., on ) Supreme Court No. S-5153
her own behalf, R.E. and D.E., )
as next friends and natural ) Superior Court No.
parents of J.E. and E.E., minors, ) 3AN-86-8554 CI
Appellants, ) O P I N I O N
v. ) [No. 4107 - July 29,
STATE OF ALASKA, )
Appeal from the Superior Court of the
of Alaska, Third Judicial District,
Beverly W. Cutler, Judge.
Appearances: Robert C. Erwin, Erwin &
Smith, Anchorage, Kenneth A. Norsworthy,
Anchorage, for Appellants. Robert L.
Eastaugh, Delaney, Wiles, Hayes, Reitman &
Brubaker, Inc., Anchorage, for Appellee.
Before: Rabinowitz, Matthews and
Compton, Justices. [Moore, Chief Justice,
MATTHEWS, Justice, concurring.
R.E, D.E., J.E. and E.E. (hereinafter D.E.1) claim that
the State is liable to them for negligently licensing the day
care center where J.E. and E.E. were sexually abused. D.E.
appeals from the superior court's grant of summary judgment in
favor of the State, and from the superior court's denial of her
motion to compel further production of state records.
Because the undisputed facts indicate that the State
was not negligent in processing and granting Betty Anderson's day
care license, we affirm the grant of summary judgment to the
State. We also affirm the superior court's refusal to compel
further production of state records because the undisputed facts
show that the Division of Family and Youth Services (DFYS) had no
legal access to any state records that might have revealed Betty
or Richard Anderson's propensity to sexually abuse children.2
I. FACTS & PROCEEDINGS
In the summer of 1981, D.E. began looking for child
care for her children, J.E. and E.E., ages fifteen months and
five months respectively. She telephoned DSS based upon the
following newspaper advertisement:
PARENTS -- A licensed child care program
assures you of an acceptable level of care,
nutritious meals, adequate program, [and a]
safe and healthy environment. For
information call Division of Social Services
She was informed that the agency screened day care operators for
character and fitness before issuing them a license and conducted
random spot checks on a routine basis to ensure compliance with
D.E. then obtained a referral list of licensed
operators. She contacted most of the licensed operators on the
list, but found no one who could take her two small children.
One of the licensed operators referred D.E. to J.S. who, in turn,
referred D.E. to J.S.'s mother, Betty Anderson. J.S. informed
D.E. that although Betty was not licensed, she was certain that
Betty planned to obtain a license.
D.E. met with Betty the next day at Betty's home.
Betty showed D.E. around her house and explained what she was
doing to child-proof the home in anticipation of becoming
licensed. D.E. understood that Betty had called to find out
about the licensing procedure but had not yet applied for a
license. D.E. neither requested character references from Betty
nor called to check on Betty's licensing progress prior to
leaving her children in Betty's care. D.E. began leaving her
children with Betty in August 1981, knowing that she was not yet
Betty applied for a license to operate a home day care
facility on September 24, 1981. Her license application
indicated that she and her husband, Richard Anderson, would be
living in the home. She provided four non-related references and
stated that neither she nor any member of her family had been
convicted of a felony, and that she had never been deprived of
her own children by court order. She also detailed the
provisions she was making to child-proof the home, handle
emergencies, and care for the children. The application did not
directly inquire into the Andersons' propensity for child abuse
nor did it request specific information on Richard.
Patricia Hermes, the DSS employee assigned to work on
Betty's license application, sent out form letters to Betty's
references and conducted a detailed inspection of Betty's home.
The reply letters of reference, many of which came from friends
and fellow church members who had previously left their children
in Betty's care, were uniformly glowing. The standard-by-
standard home inspection, conducted in November 1981, also
revealed no problems. DFYS reviewed its Child Protective Service
files and prior licensing records to determine whether Betty had
ever been the subject of complaints or adverse licensing action,
and found no negative information on either of the Andersons.
While these licensing preliminaries were proceeding,
D.E. called DSS to ask whether Betty had applied for a state
license. D.E. was told that Betty's license application was
proceeding favorably, and that Betty would be receiving a license
After DSS completed its background check on the
Andersons, Hermes recommended that Betty's Day Care facility be
licensed for one year with possible annual renewals. Shortly
thereafter, Hermes' supervisor reviewed the standard-by-standard
evaluation and agreed that Betty's Day Care was in substantial
compliance with all DFYS standards, thereby making licensing
appropriate. On November 5, 1981, Hermes informed Betty that her
facility was licensed through November 2, 1982.
D.E.'s children attended Betty's Day Care from August
1981 until July 1984. When DSS sent out letters to the day care
parents in 1982 as part of its license renewal investigation,
D.E. responded with a very favorable evaluation of Betty's child
care abilities, reporting no suspicions or complaints about the
care her children were receiving.3 Because the other renewal
references were also favorable and a new standard-by-standard
evaluation revealed no problems, DFYS renewed Betty's license
until November 2, 1983.
Another license renewal investigation was conducted in
1984. During this renewal inspection, all of the evaluation
letters were positive, with the exception of one that stated that
Betty "[p]erhaps spanks more than I would, but usually seems to
use good judgment."4 The home inspection turned up no negative
information other than the fact that building materials from the
Andersons' home remodeling were in some proximity to the child
care area. Betty's license was extended to November 2, 1984.
In the fall of 1983, D.E. began to have suspicions
about the care her children were receiving at Betty's Day Care.
One child hit his genitals, refused to keep his clothes on, acted
out sexual behavior towards another child, and displayed other
erratic behavior. The other child was verbally aggressive. D.E.
and her husband discussed the possibility of finding another
child care arrangement, but decided to keep the children with
Betty. D.E. did not report her concerns to any municipal or
state agency. In January 1984, D.E. left the children with the
Andersons for several days while she and her husband took a
vacation. In May 1984, D.E. called DFYS to report that Betty was
overcrowding her day care. On May 30, Angela Clark, a DFYS day
care licensing specialist, conducted an unannounced inspection of
Betty's home and discovered seven children, two over the limit.
On July 5, 1984, D.E. received information that led her
to closely question her children about the Andersons' treatment
of them. The children told D.E. that Betty and Richard had
repeatedly physically and sexually abused them and threatened
them. D.E. immediately called DFYS to report the alleged abuse
and did not return her children to Betty's Day Care after making
her discovery. On July 12, DFYS notified Betty that her license
had been revoked. In August 1984, DFYS received a complaint from
D.W., Betty's daughter and Richard's step-daughter, that informed
the agency that as a child she had been sexually abused by
Richard and that he had fathered her child. Betty and Richard
were later convicted of sexually abusing D.E.'s children.5
In 1986, D.E. filed suit, in part against the State and
several state and municipal employees. In her amended complaint,
D.E. alleged that DFYS was negligent in granting a child care
license to Betty because the agency failed to conduct a
meaningful investigation and discover the Andersons' propensity
for sexual abuse. D.E. further alleged that DFYS breached its
"duty of special care"not to "license and/or continue to license
and approve unsuitable day care operators . . . ." The complaint
treated DFYS's advertisements and licensing as "referral[s]"that
led D.E. to place her children with Betty.
During discovery, D.E. learned that D.W. had been
treated at the Alaska Psychiatric Institute (API), a state
hospital, during the early 1980's. D.E.'s attorney avers that
"at some point prior to the date of issuance of the Anderson's
[sic] day care license, [D.W.] reported her abuse by Richard
Anderson to at least one state agency, to wit API." Because D.E.
could not locate D.W. directly, she moved to compel the
production of API records
to determine if said files contain admissible
evidence or information that may lead to the
discovery of admissible evidence to prove
. . . that the State had knowledge of or
reason to know of the Andersons' unfitness to
hold a day care license at either the time
the license was issued or some time during
the license issuance but prior to the
Plaintiffs' report of abuse in July 1984.
D.E. later moved to compel the production of Division of Vital
Statistics and Work Incentive Program (WIN) records in an effort
to discover the last known address of D.W.
In July 1991, after all other defendants had been
eliminated from the suit, the State moved for summary judgment
claiming that DFYS "owed or breached no duties to plaintiffs,
and did not proximately cause them injury." The State further
claimed that DFYS was immune from suit under AS 09.50.250(1).
The State supported its motion with the Anderson licensing file
and many affidavits from current and former DFYS employees who
had been in positions of authority during the early 1980's.6 An
affidavit from API's top hospital administrator stated that the
law requires all API patient records to be kept confidential, and
that API would not have revealed any information regarding D.W.
or other patients even if DFYS had asked for such information.
Finally, an affidavit from the police sergeant who led the
criminal investigation of Richard and Betty Anderson stated that
the National Crime Information Center computer had no recorded
convictions or arrests for either Betty or Richard prior to July
The superior court issued an oral ruling granting
DFYS's motion for summary judgment. It ruled that because the
injuries were not foreseeable, DFYS could have breached no duty.
It also noted that proximate cause and moral blameworthiness were
absent. It further determined that even if there was a duty, the
State was protected by discretionary immunity. The superior
court also denied D.E.'s motion to compel further discovery.
This appeal followed. D.E. raises two issues on
appeal. First, she argues that the superior court erred in
granting the State summary judgment. D.E. maintains that DFYS
should have investigated the Andersons more thoroughly by (1)
interviewing Richard, who was also living in the home; (2)
interviewing J.S. and D.W., Betty and Richard's adult children;
(3) conducting criminal background checks and/or asking other
state agencies whether they had information bearing on the
applicant's fitness to care for children; and (4) inquiring into
the Andersons' mental history, including asking whether they had
been sexually abused as children. Second, she alleges that the
superior court erred when it denied her motion to compel further
II. STANDARD OF REVIEW
Three standards of review are relevant to this appeal.
When reviewing a grant of summary judgment, we independently
"determine whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment on the law
applicable to the established facts." Wright v. State, 824 P.2d
718, 720 (Alaska 1992). In doing so we must draw all reasonable
inferences in favor of the non-moving party. Id. We resolve the
questions of law presented in this appeal using our independent
judgment. Loeb v. Rasmussen, 822 P.2d 914, 917 (Alaska 1991).
We apply an abuse of discretion standard to the discovery issue.
McBirney & Assocs. v. State, 753 P.2d 1132, 1139 (Alaska 1988).
III. THE SUMMARY JUDGMENT MOTION
The superior court held that DFYS assumed "no special
duty to prevent [the] sexual abuse"that occurred at Betty's Day
Care. D.E. argues that DFYS undertook to protect children from
sexual abuse in licensed day care facilities and that this
undertaking gave rise to a common law duty for DFYS to use due
care in performing its licensing and investigatory function.7
DFYS responds that, in the absence of "red flags"indicating that
a potential licensee has a propensity to commit such abuses, the
agency has no general duty to protect children from abuse.
Other courts that have examined this issue have arrived
at varied conclusions. Some have held that the state owes a
special duty of care to users of state-licensed day care
facilities. See, e.g., Andrade v. Ellefson, 391 N.W.2d 836, 843
(Minn. 1986) (holding that "small children in a licensed day care
facility are a particular protected class"); Brasel v. Children's
Servs. Div., 642 P.2d 696, 699 (Or. App. 1982) (holding that
state owed duty to plaintiff users of a state-certified day care
facility as members of a protected class); Gagnon v. State, 570
A.2d 656, 659 (R.I. 1990) (holding that the state may have a
special duty to supervise licensed day care facilities, but
noting that "a claim of negligent licensing does not allege
anything more than a statutory obligation owed by the state to
the public-at-large"); C.T. v. Martinez, 845 P.2d 246, 248-49
(Utah 1992) ("Because the licensing provisions were intended to
protect patrons of licensed day-care facilities, a special
relationship exists between [the state agency] and those
Other courts, however, have ruled that no special
relationship exists between the state and patrons of a licensed
day care facility regarding the issue of negligent licensing, and
that a duty owed to the public-at-large does not create a duty to
any particular person. See, e.g., MacDonald v. State, 281 Cal.
Rptr. 317, 327 (Cal. App. 1991) (holding that public entities
assumed no duty of care toward the abused child that was any
greater than that owed to any other member of the public); Willow
Tree Learning Ctr., Inc. v. Prince George's County, 584 A.2d 157,
160-62 (Md. Ct. Spec. App. 1991) (refusing to find an individual
duty to the plaintiffs). See generally, Danny R. Veilleux,
Annotation, Governmental Liability for Negligence in Licensing,
Regulating, or Supervising Private Day-Care Home in Which Child
Is Injured, 68 A.L.R.4th 266 (1989).
1. The D.S.W. Factors
In determining whether the State owes a duty of care to
the appellants, we consider a number of factors:
 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.
See D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554,
555-56 (Alaska 1981) (quoting Peter W. v. San Francisco Unified
Sch. Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976))
(adopting this method in a negligence action against a school
We first address foreseeability, the single most
important criterion for imposing a duty of care. See Division of
Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986). In
Neakok, we applied the D.S.W. factors in a case involving the
State's alleged negligent supervision of a parolee. Id. at 1124-
25. We held that the State "had a duty to supervise [a dangerous
parolee] carefully [and] that this duty extended to anyone
foreseeably endangered by him . . . ." Id. at 1136. We reasoned
that the dangerous parolee's victims were foreseeable and were
significantly more identifiable than members of the public in
general, because the parolee was released into an isolated
village of less than 100 people that lacked resident law
enforcement officers. Id. at 1123, 1129, 1131-32. We thus held
that the trier of fact was not precluded from finding that the
State had a duty to warn the village residents. Id. at 1132
Although DFYS contends that sexual abuse was not
foreseeable at the time it licensed Betty's day care facility,
this assertion is without merit. Sexual abuse was a prevalent
social concern in the early 1980's. See, e.g., Ch. 104, SLA 1982
(amending child protection law to include a reporting requirement
for "sexual abuse or sexual exploitation"); former 7 AAC
50.205(f) (am. 9/28/85) (providing that "[a] caregiver may not
physically or sexually abuse a child"). The fact that the State
sought to regulate this area suggests that it recognized the
vulnerability of young children left with strangers. The most
important D.S.W. factor is met.
The other D.S.W. factors also favor imposing a duty of
care on the State regarding its investigation and licensing of
child care facilities. On appeal, the State does not dispute
that the Appellants have suffered greatly, or that the injury
occurred as a result of incidents at Betty's Day Care. Although
a licensing agency cannot be charged with preventing all such
abuse, the agency's responsibility is a serious one. Incompetent
or haphazard licensing investigations contribute to problems, and
are morally blameworthy. The existence of the many laws and
governmental agencies designed to aid and safeguard children
demonstrates that the protection of a child's welfare is the
responsibility not only of the child's parents, but also of
society and government.8 Strict adherence to the laws and
licensing procedures should result in a lower incidence of child
The sixth D.S.W. factor draws attention to the
practical difficulties and the negative consequences that will
almost certainly result from a decision requiring DFYS to use due
care in conducting its licensing and investigations of day care
facilities in order to protect children from potential physical
and/or sexual abuse. There is a risk, for example, of
encouraging "defensive social work,"or intervention where it is
not needed. See Douglas J. Besharov, Protecting Children From
Abuse: Should It Be a Legal Duty?, 11 U. Dayton L. Rev. 509, 547-
48 (1986). We are also wary of exposing a "deep pocket"
regulatory authority to possible tort liability for the purely
criminal acts of licensed child care providers.
Nonetheless, we hold that on balance the D.S.W. factors
indicate that the State owes a duty of care to patrons of
licensed day care facilities. The State's duty is not, as D.E.
assumes, to prevent harm: it is only to take reasonable steps to
prevent harm.9 The burden of acting nonnegligently with regard
to the areas an agency has chosen to regulate is not so great as
to outweigh the arguments in favor of imposing a duty.10
2. Common-Law Principles
Our holding is consistent with the common-law duty to
exercise reasonable care that arises when there is a special
relationship because a party has "undertaken a responsibility"to
protect others. See City of Kotzebue v. McLean, 702 P.2d 1309,
1312-13 (Alaska 1985); Adams v. State, 555 P.2d 235, 240 (Alaska
1976); Restatement (Second) of Torts 314, 315, 323, 324A
The traditional common-law rule is that there is no
general duty to safeguard others from foreseeable harm when that
would require controlling the conduct of another person or
warning of such conduct. Neakok, 721 P.2d at 1125-26;
Restatement (Second) of Torts 314 ("The fact that the actor
realizes or should realize that action on his part is necessary
for another's aid or protection does not of itself impose upon
him a duty to take such action."). An exception to this rule is
when there is a special relationship between the actor and either
a dangerous person or a potential victim. Neakok, 721 P.2d at
1126; see also Restatement (Second) of Torts 315.
One kind of special relationship exists when one
voluntarily undertakes to render services, even gratuitously, to
another. See Restatement (Second) of Torts 323. Such a person
is subject to liability for failure to exercise reasonable care
in performing such services. McLean, 702 P.2d at 1313; Adams,
555 P.2d at 240; Restatement (Second) of Torts 323. Adams is
particularly relevant here, because it involved a state
regulatory activity, fire inspection, that closely parallels the
type of investigation that DFYS undertook in licensing day care
facilities. Detailed statutes and regulations govern both
activities. Both activities are performed to lessen the danger
to members of the general public who use the inspected
facilities. And both activities tend to create some degree of
reliance on the part of the general public based on the
assumption that the inspected facilities are safe.
In Adams, a fire inspection revealed the existence of
severe fire hazards in a hotel. 555 P.2d at 239. Although the
state fire officials discussed the hazards with the hotel manager
and promised a more formal notification of fire code violations,
they took no further action. Id. at 240. Thereafter, a fire at
the hotel caused many deaths and injuries. Id. at 236, 238. We
held that once a state fire inspector has undertaken to inspect a
building, the State will be held to a duty of reasonable care.
Id. at 240. We further observed that the State can be held
liable not only for negligently failing to abate a known fire
hazard, but also for the negligent failure to discover fire
In this case, the State voluntarily undertook to
license day care facilities.11 DSS investigated Betty's Day Care,
and issued it a license. Presumably, the effect of state
licensing was to instill a greater feeling of security in parents
who utilized the licensed day care facilities.12 Having
undertaken the responsibility of licensing, the State was under a
duty to exercise reasonable care in carrying out that function.
1. The Discretionary Function Exception
The State argues that AS 09.50.250 immunizes DFYS from
liability regarding D.E.'s claims. We disagree. Alaska Statute
09.50.250(1) in part provides immunity to the State for
performance of its discretionary functions.13 In particular, the
statute prohibits tort actions against the State "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." AS 09.50.250(1). It does not, however, provide
immunity when the State fails to exercise due care in carrying
out its own policy, rules and regulations. Neakok, 721 P.2d at
1134-35; Adams, 555 P.2d at 243-44.
In our previous decisions construing the discretionary
function exception of AS 09.50.250(1), "we have employed a
'planning level-operational level' test to distinguish between
decisions involving the formulation of basic policy, entitled to
immunity, and decisions regarding only the execution or
implementation of that policy, not entitled to immunity."
Industrial Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983).14
Actions that are operational in nature, and therefore not
entitled to discretional immunity, are those that involve either
no room for discretion or involve only discretion free from
policy considerations. See Berkovitz ex rel. Berkovitz v. United
States, 486 U.S. 531, 536-37 (1988) (interpreting Federal Tort
Claims Act); United States v. Gaubert, 499 U.S. 315, 324-25 & n.7
(1991) (interpreting Federal Tort Claims Act); see also Johnson
v. State, 636 P.2d 47, 64-66 (Alaska 1981); Japan Air Lines Co.
v. State, 628 P.2d 934, 936-38 (Alaska 1981); State v. I'Anson,
529 P.2d 188, 192-93 (Alaska 1974); State v. Abbott, 498 P.2d
712, 717-22 (Alaska 1972).15
In Berkovitz, the United States Supreme Court examined
federal discretionary function immunity in the context of an
agency's exercise of its licensing authority. 486 U.S. at 533.
The Court held that when federal regulations required that the
agency receive certain information before issuing a license, the
agency had no discretion to issue a license without having first
received that information. Id. at 542-43. Therefore, the agency
was not immune from liability for failing to comply with the
[T]he discretionary function exception
bars any claims that challenge the [agency's]
formulation of policy as to the appropriate
way in which to regulate . . . . In
addition, if the policies and programs
formulated by the [agency] allow room for
implementing officials to make independent
policy judgments, the discretionary function
exception protects the acts taken by those
officials in the exercise of this
discretion. . . . The discretionary function
exception, however, does not apply if the
acts complained of do not involve the
permissible exercise of policy discretion.
Thus, if the [agency's] policy leaves no room
for an official to exercise policy judgment
in performing a given act, or if the act
simply does not involve the exercise of such
judgment, the discretionary function
exception does not bar a claim that the act
was negligent or wrongful.
Id. at 546-47.
Our previous decisions regarding state liability for
negligent design or maintenance of state-owned public facilities
illustrate the distinction between policy decisions and
operational level decisions. We have noted that while the proper
design and the appropriate level of maintenance may involve some
discretion, that discretion must be exercised within the confines
of the original objective.16
We do not seek to usurp DFYS's policymaking function by
proposing how DFYS should have allocated its resources. We
merely hold that, "within the confines of [then] existing
policies and budgetary constraints," DFYS had the duty to
exercise due care in performing its functions. Neakok, 721 P.2d
at 1130 (emphasis added). Once DFYS formulated its original
policy, it was required to act within the confines of that policy
or be exposed to liability for failure to do so.
C. Breach of Duty
The question that remains is whether there is a genuine
issue of material fact as to whether DFYS breached its duty to
exercise reasonable care. D.E. points to a number of facts that
she claims established a genuine issue of material fact.17 These
stem exclusively from DFYS's actions during the pre-licensing
process. She claims that DFYS should have (1) interviewed
Richard, Betty and Richard's adult children, and neighbors of the
Andersons; (2) inquired about the Andersons at localities in
which they previously resided; (3) conducted a criminal
background investigation; (4) reviewed files of other State
agencies; and (5) inquired into mental health problems and past
instances of child abuse.18
D.E.'s assertions that there were genuine issues of
material fact are based on 7 AAC 50.205 which states in part:
(a) An adult who resides in a family child
care home . . . may not
(1) have a history of abusing or
neglecting a child or dependent
(2) have a physical, mental, or
substance abuse problem to the
extent that it adversely affects
the health and safety of children
in care; [and]
(3) abuse or neglect a child or
dependent adult . . . .
. . . .
(b) The division will, in its discretion
require references from a physical or
mental health care professional
attesting to a person's freedom from the
conditions identified in (a)(1) -- (2)
and to that persons's capacity to
provide child care.
This provision was not in effect at the time of the alleged
abuse,19 however, and therefore cannot be a basis for a finding
that a genuine issue of material fact exists as to breach. To the
extent that the briefed allegations of factual issues go to
conscious policy choices, they are covered by discretionary
immunity. D.E. has failed to show any facts in the pre-licensing
process that create a genuine issue of material fact as to
whether or not DFYS could be liable, and hence summary judgment
IV. THE DISCOVERY RULING
The superior court denied D.E.'s motions to compel the
production of API, WIN and Vital Statistics files, because it
concluded that production of these items would not lead to the
discovery of admissible evidence capable of defeating summary
judgment. See Alaska R. Civ. P. 26(b), 37(a). D.E. sought these
materials in order to prove that DFYS knew or should have known
prior to July 1984 that D.W. had been sexually abused by Richard.
DFYS's response on this issue is straightforward and compelling--
the undisputed affidavits, deposition testimony, and state
confidentiality statutes all indicate that DFYS officials had no
access to any information contained in these files. Thus, their
contents are irrelevant to D.E.'s case. We concur with this
analysis and affirm the superior court's order denying discovery.
We AFFIRM the superior court's order granting summary
judgment to the State.
MATTHEWS, Justice, concurring.
I agree that the superior court properly granted
summary judgment to the State. I write separately because I
believe that the State is immune from liability regarding D.E.'s
claims under the discretionary function exception of AS
D.E.'s claims as presented on appeal focus on DFYS's
actions during the pre-licensing process. D.E. essentially
claims that DFYS negligently failed to conduct a more thorough
investigation. The State's decision not to adopt a more
extensive means of investigating applicants and other adult
residents of family day care homes, however, is clearly a
discretionary act based on policy considerations.20
The applicable regulations do not specifically require
that DFYS follow any particular means of investigating applicants
and other adult residents of applicant households, at least not
in any way relative to discovering possible abusive tendencies.
DFYS therefore retained discretion to formulate an investigative
procedure. DFYS has demonstrated, through unrefuted affidavits,
that it exercised this discretion by adopting a policy of not
investigating non-applicant residents of family child care homes
and investigating applicants in only a limited number of ways.
The decision to conduct only a limited investigation of
applicants was based on consideration of such factors as the
proper allocation of limited resources and the need to avoid
excessive intrusion into the private lives of applicants and to
encourage providers to seek licenses. This court has previously
recognized that most allocation of resources decisions are policy
based. See Freeman v. State, 705 P.2d 918, 920 (Alaska 1985)
("Decisions concerning the allocation of available funding are
often immune from suit under the discretionary function
exception.") The other factors relied on by DFYS are also
policy based. The discretionary function exception therefore
bars claims based on DFYS's decision not to investigate
applicants like Betty Anderson more thoroughly.
DFYS's decision not to engage in any extensive
investigation of other residents of family child care homes (or
of the emergency provider listed by the applicant) was based on
the same considerations, as well as a perceived ability on the
part of licensees to choose appropriate cohabitants and emergency
back-ups. Whatever the actual wisdom of such a decision, the
discretionary function exception prevents this court from re-
examining an executive branch agency's resolution of an issue
entrusted to its policy discretion. See Wainscott v. State, 642
P.2d 1355, 1357 (Alaska 1982).
I would therefore hold that the State is immune from
liability under AS 09.50.250(1) for not having engaged in a more
thorough investigation of the Andersons.
1 D.E. is the wife of R.E. and the mother of J.E. and
E.E., children who were sexually abused while attending Betty's
Day Care, a home child care facility operated by Betty Anderson.
2 During the relevant period of time, child care
regulatory duties were transferred from the Division of Social
Services (DSS) to DFYS. The parties do not dispute that actions
by DSS employees are chargeable to DFYS. Much of the testimony
seems to refer to the two agencies interchangeably, and so many
of the references herein are to DFYS even though DSS appears to
have been responsible for initially licensing Betty and for early
renewal of her license.
3 For example, D.E. answered the question "How would you
feel about leaving your child in [Betty's] care?"by stating that
she had peace of mind, and that the children were being cared for
emotionally and nutritionally.
4 The record contains no evaluation letter from D.E. for
the 1983 renewal period, although it appears from the record that
DFYS sent her an evaluation form to fill out. D.E. maintains
that she called DFYS three times between the fall of 1983 and May
1984 to report excessive discipline and overcrowding at Betty's
5 After the Andersons' initial convictions, the court of
appeals found procedural defects in their trials and ordered new
trials. See Anderson v. State, 749 P.2d 369 (Alaska App. 1988).
Both pled no contest on remand, and the superior court sentenced
them to prison terms.
6 The thrust of these affidavits is that, given the
practical limitations of government, DFYS investigated and
licensed Betty's Day Care in a professional manner and followed
all applicable statutes, regulations and department policies.
DFYS had to prioritize functions because of its small staff and
limited budget. As a result, child protection and other
functions were deemed more important than some licensing
investigation functions. DFYS employees further claim that DFYS
did not have the resources to carry out the type of investigation
that D.E. claims should have been done. One employee also avers
that DFYS made a specific policy decision not to conduct overly
intrusive licensing investigations of day care homes, as opposed
to day care centers, because members of the public and the
legislature were concerned that such investigations could lead to
unnecessary invasions of privacy; lower willingness among day
care providers to become licensed and thus receive some
inspection and review; and a reduction in the overall number of
day care providers. Due to these concerns, DFYS created a
standard-by-standard evaluation form used in licensing all home
child care facilities, including Betty's Day Care.
7 D.E. also argues that the child care licensing
statutes, regulations and some general legislative statements of
purpose impose a statutory duty on DFYS to investigate applicants
for day care licenses in order to safeguard the well-being of
children in Alaska. We need not address this issue because, as
DFYS points out, D.E. never argued for the existence of a
statutory duty in opposing the summary judgment motion and
inadequately briefed the issue on appeal. See Alesna v. LeGrue,
614 P.2d 1387, 1392 n.9 (Alaska 1980) (declining to address a
negligence theory that "was not raised below and [wa]s
inadequately briefed on appeal").
8 While we note that licensing of a particular facility
could lower a parent's guard and increase the risk of harm,
parents have the primary responsibility for ensuring the safety
of their child's day care situation. Our holding today should
not be read as allowing them to abdicate that responsibility. As
any parent should be aware, DFYS has neither the resources nor
the practical ability to inspect a child care facility with the
same degree of care as a parent who visits the facility on a
9 We also specifically reject the argument that the
newspaper advertisement created an absolute duty to protect all
children in child care.
10 In Neakok, we rejected the State's "generalized
the burdens and consequences of imposing
financial liability for failure to supervise
adequately would be severe and unwarranted
[and] . . . the imposition of such a duty
would cause "intolerable judicial
interference with judgmental corrections'
decisions" and impose an economic burden,
"reordering [S]tate priorities in allocating
manpower and funds" and causing other
socially desirable programs to suffer.
721 P.2d at 1130. In doing so, we noted that we were not
requiring the State to "spend limitless sums of money taking
every conceivable precaution to prevent any possible violent
action on the part of any parolee." Id. We have never required
that the State do a flawless job in governing, nor do we believe
that the State should be "liable in tort to everyone for every
action." Adams, 555 P.2d at 242. We do not seek to hold the
State liable for every instance of child abuse that occurs at a
state-licensed day care facility, only those that would have been
prevented by the State's exercise of reasonable care in
implementing the policies in place at the time of licensing.
11 Cf. Susan L. Abbott, Liability of the State and Its
Employees for the Negligent Investigation of Child Abuse Reports,
10 Alaska L. Rev. 401, 409 (1993) ("in undertaking to receive and
inquire into reports of child abuse, the State has voluntarily
assumed a duty to use due care in investigating the reports and
protecting abused children").
12 This is, for example, the likely effect of the
newspaper advertisement placed by DSS "assur[ing parents] of an
acceptable level of care, nutritious meals, adequate program,
[and a] safe and healthy environment."
13 At least one commentator has argued that discretionary
immunity should be abolished in the analogous situation of
caseworkers who negligently fail to intervene to stop intra-
family abuse. See Laura Huber Martin, Comment, Caseworker
Liability for the Negligent Handling of Child Abuse Reports, 60
U. Cin. L. Rev. 191, 193 (1991). Such a decision is for the
14 Any argument that DFYS should have employed different
or additional procedures to make its investigations more
effective implicates formulation of basic policy. Such decisions
would be immune under AS 09.50.250(1).
15 Because the critical statutory language of the
discretionary function exception in AS 09.50.250(1) is identical
to that contained in the Federal Tort Claims Act, reliance on
federal court interpretation of the exception is appropriate.
See Abbott, 498 P.2d at 717.
16 For example, a decision to maintain a road is
necessarily a decision to maintain it properly, and a decision to
build an airport for wide-body jets does not allow for discretion
in deciding whether to design taxiways that will accommodate the
jets. I'Anson, 529 P.2d at 193-94; Japan Air Lines, 628 P.2d at
936-38. Some design or maintenance decisions, however, do
involve policy considerations, such as the proper allocation of
limited resources and possible detrimental physical and
environmental effects. See Freeman v. State, 705 P.2d 918, 920
(Alaska 1985); see also Wainscott v. State, 642 P.2d 1355, 1357
17 In addition to those discussed here, there appear to
have been other significant factual questions below, such as
whether DFYS responded adequately to complaints and conducted
spot checks in accordance with its policy. D.E. has not raised
these on appeal; her brief focuses on the pre-licensing
investigation. Consequently, she has waived them. See Wren v.
State, 577 P.2d 235, 237 n.2 (Alaska 1978).
18 D.E. relies on the licensing application form, which
asked "Has applicant or member of the household ever been
convicted of a felony?" On this point, however, D.E. fails to
allege that Richard had been convicted of a felony, and that
therefore a more thorough investigation of his criminal history
would have affected the licensing decision.
19 Prior to 1985, 7 AAC 50.205 only required day care home
caregivers to have an annual tuberculosis test, meet minimum age
requirements (with some exceptions), and provide three unrelated
20 As the majority opinion states: "Any argument
that DFYS should have employed different or additional procedures
to make its investigations more effective implicates formulation
of basic policy. Such decisions would be immune under AS
09.50.250(1)." Slip Op. at 19 n.14.