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Hawks v. State (12/29/95), 908 P 2d 1013
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,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
JEAN "DEE" HAWKS, )
) Supreme Court No. S-6748
) Superior Court No.
v. ) 3AN-90-9660 Civ.
STATE OF ALASKA, ) O P I N I O N
Department of Public Safety, )
Appellees. ) [No. 4303 - December 29, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Peter Michalski, Judge.
Appearances: Joe P. Josephson, Anchorage,
for Appellant. Raymond M. Funk, Assistant
Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
This appeal arises from an action brought against the
State by a mother for a five-year delay in the identification of
her daughter's remains. The superior court granted summary
judgment to the State. We affirm.
II. FACTS AND PROCEEDINGS
Jean "Dee" Hawks (Hawks) is the mother of Delynn R.
Frey (Frey). Sometime during July 1983 Hawks reported to the
Anchorage Police Department (APD) that Frey was missing. In the
fall of 1983, two detectives interviewed Hawks and her husband at
their home in Fairbanks. The Hawks told the detectives that Frey
had broken her arm some years before, and that when she
disappeared she might have been wearing some jewelry Hawks could
identify. Other investigation notes indicate that APD was aware
that Frey was a heroin addict.
In May 1984 the Alaska State Troopers (AST) located
some articles of female clothing, a knife, a hypodermic needle, a
syringe, a metal spoon, and other items at a site on the Knik
River. The site had been identified by Robert Hansen, a serial
killer who preyed upon Anchorage women in the early 1980's, as
one of his burial sites.
In response to an August 1984 inquiry from Trooper
Wayne Von Clasen, Hawks reported that the medical records of
Frey's arm fracture could be obtained from Las Cruces Memorial
Hospital in New Mexico. Trooper Von Clasen sought to obtain
these records, and other records related to dental work Frey was
said to have undergone, but was unsuccessful.
In August 1985 Mr. C.C. "Buck" Kuhn discovered human
remains on a Knik River sandbar not far from the location where
AST previously had found the clothing and other items. AST
recovered two rings with these remains. A forensic pathologist
conducted an autopsy of the remains, but was unable to make an
identification due to their extensive decomposition. Trooper Von
Clasen was not involved in the recovery or attempted
identification of the remains.
Between 1984 and 1989 Hawks repeatedly contacted APD
about Frey. In March 1989 Trooper Selden took over the case and
contacted Hawks, who had since moved to Hawaii. In May 1989
Selden obtained Frey's medical records from New Mexico. He then
had the remains exhumed and a second autopsy performed. The
pathologist confirmed that a fracture appearing in the right arm
bone was consistent with Frey's healed fracture. Selden sent the
rings originally found with the body to Hawaii for the Hawks'
inspection. Mr. Hawks identified one of the rings as belonging
In November 1989 the case was transferred to Trooper
DeHart. Later that month, he requested an anthropological
examination of the remains to "confirm that they are consistent
with Frey's height, weight, and race." The examination,
performed in January, 1990, determined that the remains were
consistent with the description of Frey. In February 1990 DeHart
informed Hawks that the remains had been identified as those of
her daughter. Hawks sued the State for intentional and
negligent infliction of emotional distress. The gravamen of her
claims is that if the police had been more diligent in pursuing
Frey's medical records and Hawks' identification of the rings,
and had more carefully scrutinized the information available
about Frey, the clothing site, and the remains, they could have
more quickly identified the remains as Frey's. The State moved
for summary judgment. The superior court granted summary
judgment for the State as to all Hawks' claims. The superior
court concluded: (1) Hawks had alleged no facts to support a
claim of intentional, reckless, wanton, or grossly negligent
behavior; (2) Hawks had failed to make out a prima facie case of
negligent infliction of emotional distress (NIED); and (3) the
State is statutorily immune from all Hawks' tort claims. The
superior court denied Hawks' motion for reconsideration. Hawks
took a timely appeal.
A. Standard of Review
This court reviews a superior court's grant of summary
judgment de novo. See Tongass Sport Fishing Ass'n v. State, 866
P.2d 1314, 1317 n.7 (Alaska 1994). In reviewing a grant of
summary judgment we must determine if any genuine issue of
material fact exists and if the moving party was entitled to
judgment as a matter of law. Moore v. State, 553 P.2d 8, 15
(Alaska 1976). In determining if there is a genuine issue of
material fact we must view the facts in the light most favorable
to the non-moving party. Beck v. Haines Terminal & Highway Co.,
843 P.2d 1229, 1230 (Alaska 1992). The question whether Hawks
presented sufficient evidence to support a prima facie case for
intentional infliction of emotional distress is a threshold
question to which we apply an abuse of discretion standard.
Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993).
B. Intentional Infliction of Emotional Distress
In Beard v. Baum, 796 P.2d 1344, 1350 (Alaska 1990),
this court reaffirmed its adoption of the elements of IIED set
out in The Restatement (Second) of Torts. To make out a claim
for IIED, the "offending party, through extreme or outrageous
conduct, must intentionally or recklessly cause severe emotional
distress or bodily harm to another." Richardson v. Fairbanks N.
Star Borough, 705 P.2d 454, 456 (Alaska 1985); Restatement
(Second) of Torts ' 46(1) (1986). In considering an IIED claim
the trial court must make a threshold determination "'whether 
the severity of emotional distress and  the conduct of the
offending party warrant a claim of intentional infliction of
emotional distress.'" Beard, 796 P.2d at 1350 (quoting
Richardson, 705 P.2d at 456). To sustain a claim for IIED, the
actor's conduct must rise to the level of conduct which would
warrant a punitive damages award. Richardson, 705 P.2d at 456.
Thus, "[l]iability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
Oaksmith v. Brusich, 774 P.2d 191, 200 (Alaska 1989), quoted in
Beard, 796 P.2d at 1350.
Hawks argues that she presented sufficient evidence to
meet her burden of proof on all elements of an IIED claim. She
alternatively contends that, under this court's reasoning in
Beard, the superior court erred in not holding an evidentiary
hearing in which she could have presented evidence regarding the
severity of her emotional distress and the outrageousness of the
We assume for the sake of analysis that the potential
for emotional distress to a mother resulting from the
disappearance and delayed identification of the remains of her
young daughter cannot be seriously disputed. The superior court
made no findings on this issue and the State does not reargue it
in its brief. Emotional distress, however, is only one-half of
the IIED equation. On our reading of the record, the State's
conduct of the investigation exhibited, at most, a lack of
diligence and organization that perhaps could be characterized as
negligent; there is nothing "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community." See Beard, 796 P.2d at 1350. As for
Hawks' claim that the trial court erred in not holding an
evidentiary hearing, in Beard we remanded so the trial court
could evaluate the evidence because the plaintiff there had made
the necessary threshold showing on the conduct element of an IIED
claim. Id. Because Hawks has made no such threshold showing in
this case, her claim of error on the basis of a lack of an
evidentiary hearing is unfounded. Accordingly, we hold that the
superior court did not abuse its discretion in granting summary
judgment on Hawks' IIED claim.
C. Negligent Infliction of Emotional Distress (NIED)
The first step in determining whether a negligence
action can be maintained is to determine whether the defendant
owed the plaintiff a duty of care under the circumstances.
Stephens v. State, Dept. of Revenue, 746 P.2d 908, 910 (Alaska
1987). The concept of duty is not a legal talisman on which the
court lays hands to decide novel questions, "but only an
expression of the sum total of those considerations of policy
which lead the law to say that a particular plaintiff is entitled
to protection." Prosser, Law of Torts (4th ed. 1971), quoted in
Division of Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska
1986). In D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628
P.2d 554, 555 (Alaska 1981), this court adopted a list of
considerations to aid in deciding when, as a matter of policy, a
particular plaintiff is entitled to protection. These
considerations include the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered an
injury, the closeness of the connection between the defendant's
conduct and the plaintiff's injury, the moral blame attached to
the defendant's conduct, the policy of preventing further harm,
the extent of the burden to the defendant and consequences to the
community of imposing a duty of care, and the availability, cost
and prevalence of insurance for the risk involved. Id.
Two of these factors, the foreseeability of harm to the
plaintiff and the degree of certainty that the plaintiff suffered
injury, weigh in favor of imposing a duty of care on the State.
It is foreseeable that when potentially identifiable human
remains are not identified, relatives of missing persons will be
left to wonder about their beloved's fate. We assume that such
lingering uncertainty could cause some psychic injury.
Nevertheless, the majority of the D.S.W. factors militate against
holding the State liable.
Hawks' injury is most closely connected to Hansen's
depraved conduct, not the State's handling of the investigation.
It was his choice of location and method of disposing of his
victims' bodies that most directly caused the delay in the
identification of Frey's remains. Moreover, there is little, if
any, moral blame to attach to the investigating authorities'
possible failure to correlate every known characteristic of every
open missing person case with every John Doe or Jane Doe
deceased. See Stephens, 746 P.2d at 911.
Finally, "the consequences to the community" of
imposing liability for a negligently-conducted investigation or
identification are considerable. Identification of remains is
one of many responsibilities of the State's law enforcement
authorities; invariably, as with other types of investigations,
some attempts at identification are successful and others are
not. A decision by this court that imposed a duty of care on the
police would open the judicial floodgates to allow review of all
identifications and permit liability in those determined with
twenty-twenty hindsight to have been negligently conducted. Such
a decision would invariably lead to the diversion of resources
from other projects and investigations. Decisions regarding the
allocation of limited resources are better left to the executive
branch. See, e.g., Wainscott v. State, 642 P.2d 1355, 1356
(Alaska 1982) ("[C]ourts are ill-equipped to investigate and
balance the numerous factors that go into an executive or
For the foregoing reasons, we conclude it is the more
sound policy not to impose liability on the State for negligence
in the attempted identification of remains. Therefore, we hold
that the State owed no duty of care to Hawks.
Because we have concluded that Hawks' claims are
without legal merit, we do not address the issue whether the
State is immune from liability. See Stephens, 746 P.2d at 910
("Before we determine whether a statutory immunity applies to a
given case, we will determine whether the State would be liable
to the plaintiff in the absence of the immunity.").
The decision of the superior court is AFFIRMED.