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Dinsmore-Poff v. Alvord (2/5/99), 972 P 2d 978
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.
THE SUPREME COURT OF THE STATE OF ALASKA
DONNA DINSMORE-POFF, )
) Supreme Court No. S-7935
Appellant, )
) Superior Court No.
v. ) 3AN-95-3103 CI
)
LOUIS and TINA ALVORD, ) O P I N I O N
)
Appellees. ) [No. 5077 - February 5, 1999]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: W. David Weed, Law Offices of W.
David Weed, Anchorage, and LeRoy E. DeVeaux, DeVeaux and
Associates, P.C., Anchorage, for Appellant. Rod R. Sisson, Crosby
& Sisson, P.C., Anchorage, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Justice.
I. INTRODUCTION
This appeal presents two novel questions. The first is
whether we should adopt sec. 316 of the Restatement (Second) of
Torts,
which makes parents liable for negligently failing to prevent their
children from intentionally harming others. The second concerns
the plaintiff's burden under sec. 316 of showing that a parent
unreasonably failed to recognize a need to control his or her
child, or did recognize such a need, but failed to make a
reasonable attempt to meet it. The question is how specific and
immediate the need to control the child must be to support
liability.
The mother, sister, child, and estate of Mickey Robert
Dinsmore II (collectively, Dinsmore [Fn. 1]) sued various people to
redress Dinsmore's murder by seventeen-year-old Brian Hall. These
included Hall's mother and stepfather, Tina and Louis Alvord, on a
theory of negligent supervision. The Alvords were well aware of
Hall's long history of emotional disturbance and violence, and of
his arrest twenty-one months earlier for shooting a boy.
Nonetheless, they did not enforce a curfew or regularly search his
personal effects. Dinsmore, on the other hand, presented no
evidence that, at the time of the murder, the Alvords knew that
Hall had a gun or had done anything violent in the past twenty-one
months, or that they should have known that any specific recent
event or plan of Hall's required them to intervene to prevent
likely harm. We conclude that the superior court correctly applied
sec. 316 to these facts in granting the Alvords summary judgment,
and
affirm.
II. FACTS AND PROCEEDINGS
Brian Hall was born in 1975. The parties do not dispute
that, from early childhood, he was emotionally disturbed and prone
to uncontrollable anger and violence. From age three onward his
parents -- and sometimes the State, with their consent -- put him
in numerous psychiatric treatment facilities and alternative school
programs for emotionally disturbed children, in and out of Alaska.
He attended the Whaley Center, Anchorage's most restrictive school
program, which is equipped with padded cells to hold uncontrollable
students. He was hospitalized four times at the Alaska Psychiatric
Institute (API) between the ages of eleven and twelve because of
fighting and, once, threatening or assaulting his mother with
scissors. API personnel put him in four-point restraints at least
once. During the 1990 91 school year, both West High School and a
vocational high school expelled him for fighting.
In July 1991, at age fifteen, Hall was adjudicated a
delinquent on a charge of misconduct involving a weapon. He had
shot a boy in the hand with a stolen pistol. Hall and a friend had
approached and talked to two girls sitting in a car at an
intersection at night; a large group of boys who knew the girls,
and some of whom had bats, accosted and threatened Hall and his
friend. Hall shot one. As reported by the police and by Hall's
juvenile probation officer, Paul Kelson, the shooting involved a
notable element of self-defense.
Hall was put on probation and, after about a month in a
shelter, returned to live with the Alvords in October 1991.
Everyone felt that he did well on probation: He was a model
resident at the shelter and, once at home, kept his appointments
with Kelson, did well at a computer-assisted alternative classroom
program and a drug education and awareness program, paid his
restitution, and became a trusted employee at a janitorial firm.
He had conflicts with his parents about piercing his nose, drinking
alcohol, possibly using marijuana, and having a girl in the house,
but he, they, and Kelson resolved the conflicts. There were no
reports of violence. During Hall's probation, the Alvords fully
cooperated with Kelson, who found them caring and supportive.
Kelson moved to end the probation ten months early, in October
1992. Lou Alvord expressed concern about how Hall would act after
his probation ended, but he and Tina supported Hall's release from
probation.
Neither Kelson nor the Alvords then knew that on
Halloween -- while the court was processing Hall's release from
probation -- he and one or more of his friends had used a cane and
a bat to beat another boy at a party. Hall's parents only learned
of the assault after his arrest for murder.
Brian Hall murdered Mickey Dinsmore and Stanley Honeycutt
with a stolen gun in the early-morning hours on April 16, 1993.
Dinsmore and Honeycutt were riding in a car in Anchorage's Far
North Bicentennial Park. They had a verbal altercation with Hall
and his companions, who were in a car driven by a friend of Hall's.
Dinsmore and Honeycutt were unarmed. Hall was seventeen and a
half. After an extensive juvenile waiver hearing, Hall was tried
as an adult and convicted of first-degree murder for shooting
Dinsmore.
Dinsmore's relatives and estate filed a wrongful-death
suit against Hall; his companions; the parents who owned the car
they were in; the Municipality of Anchorage and its Police
Department; Paul Kelson; the State Division of Youth Corrections;
and the Alvords. After the court dismissed a "vicarious liability"
claim against the Alvords, Dinsmore amended the complaint to allege
negligent supervision.
The Alvords submitted much of the juvenile-waiver-hearing
transcript as evidence; Dinsmore submitted only some material whose
inadmissibility we note in the margin, [Fn. 2] and Kelson's
testimony about the Halloween battery. Applying section 316 of the
Restatement (Second) of Torts (sec. 316), the court granted the
Alvords summary judgment. Dinsmore unsuccessfully moved for
reconsideration, attaching evidence that, as we note in the margin,
is irrelevant to this appeal. [Fn. 3] The Alvords successfully
moved the court under Alaska Civil Rule 54(b) to make the summary
judgment final, though other defendants remained in the case.
Dinsmore appeals the summary judgment and the entry of final
judgment.
III. DISCUSSION
A. Standard of Review
We review summary judgments de novo, drawing all
reasonable inferences in the nonmovant's favor. [Fn. 4] If there
are no genuine factual disputes -- and Dinsmore does not claim that
there are -- we must decide whether the undisputed facts entitle
the movant to judgment as a matter of law. [Fn. 5] We also decide
questions of law -- such as whether to adopt sec. 316 -- de novo,
choosing the rule that best reflects reason, policy, and precedent.
[Fn. 6] We review a grant of final judgment under Rule 54(b) for
abuse of discretion. [Fn. 7]
B. We Decline to Address Adoption of sec. 316 as Alaska Law.
Both parties recommend that we adopt sec. 316, and the
superior court predicted that we would. Section 316 requires
parents who know of their children's violent propensities to keep
them from harming others, by imposing
a duty to exercise reasonable care so to
control [one's] minor child as to prevent it from intentionally
harming others or from so conducting itself as to create an
unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that [the
parent] has the ability to control [the] child, and
(b) knows or should know of the necessity and
opportunity for exercising such control.[ [Fn. 8]]
This rule encodes a principle that courts in numerous states have
applied in many cases since at least the early twentieth century.
[Fn. 9]
Not all courts embrace sec. 316. Three state supreme
courts
in the last two decades have squarely declined to adopt sec. 316,
and
an intermediate appellate court in a fourth state partly did so.
[Fn. 10] Interestingly, the cases in which courts have declined to
adopt sec. 316 have involved teenaged children and serious crimes
like
rape or murder. [Fn. 11] As our discussion in Part III.C.1 shows,
many sec. 316 cases -- though by no means all -- have involved
young
children and less serious assaults. The opinions rejecting
sec. 316
may thus reflect at least in part a judicial disinclination to hold
parents liable for being unable to stop serious delinquency in
older children. One court asked rhetorically whether sec. 316
should "apply to all minor children regardless of age, even though
parental control diminishes as the child matures?"[Fn. 12]
We appreciate the concerns expressed both by those courts
which have adopted and by those which have rejected sec. 316. The
parties have agreed that sec. 316 is the law of the case; thus they
have made the determination that sec. 316 should apply to the
dispute
between them. In view of their agreement, we see no need either to
adopt or reject sec. 316. The issue must slumber until awakened by
parties who present us with adversarial expressions of "reason,
policy, and precedent"for or against adoption of sec. 316.
C. Dinsmore Failed to Rebut the Alvords' Showing that They
Were Entitled to Judgment under sec. 316 as a Matter of Law.
We consider the Alvords' entitlement to judgment as a
matter of law first in light of out-of-state sec. 316 precedents
and,
ultimately, by analyzing independently how best to apply its rule.
1. Case law from other states offers no support for
finding parents liable on the facts of this case.
The text of sec. 316 suggests a three-part test: i.e.,
whether parents knew or should have known of the (1) need,
(2) ability, and (3) opportunity to control their child. Case law
from other states, however, does not bear this out. Instead,
courts first ask if parents knew of past conduct enough like that
at issue to put them on notice of the need to correct their child's
dangerous propensity. Courts resolve most cases in the parents'
favor upon finding no such past misconduct or, at least, no
parental knowledge thereof. [Fn. 13] But the Alvords cannot
dispute that they knew of Hall's propensity for violence, including
a prior assault with a stolen gun.
Most courts, upon finding parental knowledge of past
misconduct, have not then made a demanding, detailed inquiry. They
have usually just asked if the parents made some reasonable effort
to prevent a recurrence. One can divide reported cases in which
parents knew of past violence into those: (a) reversing Rule
12(b)(6) dismissals (or their equivalent) upon taking as true
allegations that parents knew of, yet did absolutely nothing to
correct, and even encouraged, a violent tendency; [Fn. 14] (b)
finding parents liable, or reversing nonsuits in their favor, based
not on allegations but on evidence; (c) exonerating parents who
made adequate disciplinary efforts; and (d) exonerating parents who
had no chance to prevent the harm.
All but one of the cases that Dinsmore cites are from
group (a). They only reverse dismissals for failure to state a
claim upon accepting allegations that parents did nothing to
correct -- or even encouraged -- a child's misconduct. [Fn. 15]
These opinions offer scant guidance beyond the Rule 12(b)(6) stage;
they only show that a court accepts the rule of sec. 316. The
opinions in group (b), finding parents liable, are distinguishable.
Those in group (c), finding adequate discipline, show that courts
have been far from demanding in judging the reasonableness of
parental efforts to correct a vicious tendency. And two opinions
in group (d), which rely partly on inability to control a child at
the time of a crime, absolve parents in the cases most like this
one.
The one opinion Dinsmore cites that does not rely only on
allegations that the parents did nothing to control their child is
Singer v. Marx, 301 P.2d 440 (Cal. App. 1956), in which an
appellate court reversed a nonsuit taken after all evidence. That
evidence showed that the mother of nine-year-old Tim Marx, who hit
a girl in the eye with a rock, knew that he had been throwing rocks
at people, houses, and cars for over a year. [Fn. 16] Two people
testified that they had complained to her. She testified that,
after the second complaint, she had made Tim repeatedly write, "I
will not throw pebbles."[Fn. 17] But he still did, leading the
court to note that efforts to control his conduct had failed.
Finding it "fairly inferable that Mrs. Marx had notice of Tim's
dangerous proclivities and did not administer effective
discipline,"the court held that a jury could reasonably find
her -- but not her husband Zeppo, who did not know of the
problem -- liable. [Fn. 18]
Marx yielded the result that Dinsmore seeks: The court
found a jury question in whether parental efforts to correct a
child's violent misconduct had been reasonable. And in so doing,
the court relied on the fact that the misconduct had continued
after the parents' efforts to correct it. But Marx is readily
distinguishable, for it involved a young boy engaged in relatively
minor, childish misconduct. Making a nine-year-old stop throwing
rocks is a much less daunting task than keeping a seventeen-year-
old from secretly carrying and using a stolen gun. At least three
courts have followed the authors of sec. 316 in noting "the modern
view . . . that the very youth of [a] child is likely to give [a]
parent more effective ability to control [its] actions,"[Fn. 19]
or the corollary view that it is harder to control a near-adult
child. [Fn. 20]
The few other opinions in group (b) (affirming liability
or reversing nonsuits based on evidence) are also distinguishable:
one involved only a duty to warn; [Fn. 21] two involved failure to
control very young children misbehaving in a custodian's immediate
presence; [Fn. 22] and two involved failure to do anything to
address recent misconduct. [Fn. 23] Given the Alvords' active
cooperation with Hall's probation, the rules over which he fought
with them, and the many programs and facilities into which his
mother diligently placed him, one cannot possibly describe them as
having done nothing to respond to his misconduct.
The few opinions besides Marx in group (c), evaluating
whether parental efforts were reasonable, suggest that a good-faith
attempt to correct misconduct as it occurs is enough. [Fn. 24] In
Ross v. Souter, 464 P.2d 911 (N.M. App. 1970), for example, the
court affirmed dismissal of a suit against parents who had known of
their boy's tendency to fight before his punch ruined plaintiff's
son's orthodontia. [Fn. 25] The court found adequate evidence of
a "reasonable effort to correct or restrain"the boy in his
principal's testimony that the boy's mother had helped discipline
him for fighting, had reprimanded him in the principal's office,
and had been "sincere in trying to get [him] to stop this
fighting."[Fn. 26] Ross and the opinions cited in note 24 absolve
parents after cursorily noting evidence of good-faith efforts to
correct young children by admonition. To the extent such cases are
relevant in this more grave context, they do not support the
searching inquiry into alternate disciplinary regimes that Dinsmore
urges.
We consider finally group (d) -- cases turning at least
in part on whether parents knew of an opportunity or need to
control a child, or whether they were able to do so. Dinsmore
stresses her view that parents need not be immediately present at
the moment of a tort to be liable for failing to control their
child. Reading literally Judge Hunt's comments that the Alvords
"were not present at the shooting"and "did not have the
opportunity or know of the necessity . . . [or] have the ability to
control Hall's actions at the time of the shooting,"Dinsmore sets
up and knocks down a straw man. Dinsmore portrays the court's
holding as follows: "[S]ince the Alvords . . . were not present at
the murders, they could not, as a matter of law, be held
responsible."[Fn. 27] But the Alvords do not argue that parents
must be physically present to be liable. They argue that sec. 316
only requires parents to exercise the ability to control a child
that they have at the time of the tort, and only at such time as
they should know of a specific need and opportunity to do so. That
need not mean the precise instant of the tort.
Two Illinois opinions address in their holdings how
narrowly to define the opportunity, ability, and need to control a
child. [Fn. 28] In Cooper v. Meyer, 365 N.E.2d 201 (Ill. App.
1977), Cooper went to Meyer's home to complain about one of Meyer's
children, but another of Meyer's sons flew into a rage and attacked
Cooper. [Fn. 29] The court assumed that Meyer knew of his son's
violent propensity. It held that he had nonetheless "had no
opportunity to directly control the . . . child at the time of the
tort"[Fn. 30] and no chance to warn Cooper. He had not invited or
expected her visit, unlike the parents in a California case who
failed to warn a babysitter that their child was violent. [Fn. 31]
In Barth v. Massa, 558 N.E.2d 528 (Ill. App. 1990), the
Illinois court resolved one of the two reported cases somewhat
similar to this one. Fifteen-year-old Michael Massa's parents knew
that he had misused BB guns at least once, firing at other
children, yet they had failed or refused to get him counseling.
[Fn. 32] Michael bought some stolen guns and kept them in his
room; two weeks later, he and a friend broke into a store to steal
ammunition and, when police fired at them as they fled, Michael
shot and injured Officer Barth. [Fn. 33] Barth sued, and the
appellate court ultimately held the Massas were entitled to a
directed verdict. [Fn. 34]
The court held that the BB-gun incidents could not
"reasonably be interpreted as putting the Massas on notice that
Michael was likely to buy a stolen gun, commit a burglary, and
shoot a police officer,"and, in the alternative, that there was
"no evidence of the opportunity to prevent the shooting."[Fn. 35]
It quoted from the commentary to sec. 316, which says that a parent
is
bound "only to exercise such ability to control his child as he in
fact has at the time when he has the opportunity to exercise it and
knows the necessity of so doing."[Fn. 36] It noted that, even if
the Massas were on general notice that Michael tended to misuse
guns, nothing suggested that they knew that
when Michael left the house on October 3,
1981, he planned to break into a sporting goods store. Nor was
there any evidence from which it could reasonably be inferred that
they knew Michael was armed when he left the house that day.
Absent some evidence that the Massas knew or should have known of
the necessity and opportunity to control Michael's conduct on that
day, there can be no liability.[ [Fn. 37]]
In Moore v. Crumpton, 295 S.E.2d 436 (N.C. 1982), North
Carolina's Supreme Court affirmed summary judgment for the father
of seventeen-year-old John Crumpton Jr., who late one night got
very drunk, left home, and raped Ms. Moore at knife point.
Applying the rule of sec. 316, [Fn. 38] the court held that John
Jr.'s
father had not known of his dangerous propensity and, in the
alternative, that the father had not had the ability or opportunity
to control his son at the time of the rape. [Fn. 39]
John Jr. began to use drugs, argue with his parents, and
skip school before he turned thirteen. [Fn. 40] The court noted
without elaboration that he had been "arrested for carrying a
concealed knife"[Fn. 41] and "involved in an assault . . . with a
deadly weapon a year or more before the [rape]."[Fn. 42]
Psychologists had deemed him "not disposed toward violent or
dangerous behavior,"[Fn. 43] and the court found no evidence that
his father had "had any indication that John Jr. was disposed to
commit the crime committed."[Fn. 44] Dinsmore argues that this
makes the rest of the opinion dicta, but we find that the following
was an alternate basis to affirm. John Jr.'s parents sought help
from psychologists and counselors, "made frequent attempts to
discipline John, Jr. and to reason with him,"and put him in a
private school, all to no avail. [Fn. 45] The court noted, in a
frank discussion apposite to this case, that there was little more
the parents could have done to control their near-adult son short
of constantly guarding him:
John, Jr. was 17 years old at the time of the
rape . . . . The opportunity to control a young man of this age
obviously is not as great as with a younger child. The crime
involved occurred during the very early morning hours after parents
would ordinarily be expected to be in bed. Short of standing guard
over the child twenty-four hours a day, there was little that the
defendant father could do to prevent John, Jr. from leaving the
home after [he] was asleep. . . .
. . . [His] parents . . . sought
professional help for John, Jr. early and often. We fail to see
that much more could have been done by them, short of physically
restraining his movements and placing him under twenty-four hour a
day observation.[ [Fn. 46]]
This description recalls Superior Court Judge Larry Card's poignant
comments at Hall's juvenile-waiver hearing that Mrs. Alvord "has
been diligently getting him into every program she could,"and "has
tried so hard to help him turn around."
Barth and Moore provide a meager basis for analogizing to
other states' resolution of similar cases, but the absence of any
reported cases holding parents liable on even vaguely similar facts
bodes ill for Dinsmore.
2. Dinsmore has not shown a genuine dispute as to
whether the Alvords had a specific reason to know of a need or
opportunity to control Hall.
The Alvords were undisputedly on general notice of Hall's
dangerous propensity. To analyze thoroughly whether they acted
reasonably seems to us to entail four questions: (a) Did they
respond appropriately to specific prior violent acts? (b) Have
their subsequent general efforts to control Hall been reasonable?
(c) Should they have foreseen the need to prevent this specific
incident? and (d) If so, did they make reasonable efforts to do so?
We do not mean to suggest that the Alvords must successfully answer
all four questions in order to avoid liability, but only that each
question is relevant, in that an unfavorable answer could at least
contribute to a finding of negligence.
On the first query, the Alvords offered evidence that
they responded properly at the time to past incidents -- they put
Hall in many in- and out-patient treatment programs. Dinsmore has
not challenged that evidence.
The second query is general: After responding
immediately to past misconduct, did the parents maintain reasonable
measures to keep tabs on and control the child to prevent
recurrences? The treatment programs in which the Alvords put Hall,
and their cooperation with his probation, could suffice. Dinsmore
suggests, however, that they had a duty to enforce a curfew --
since the 1991 shooting occurred when Hall was running around town
late at night with his friends -- and to systematically search
Hall's room and belongings for weapons. This is Dinsmore's most
plausible argument. Precedent offers no guidance on whether it
alone suffices to raise a jury question. We return to it after
considering the third and fourth questions.
Those questions are whether the parents should, in the
exercise of due care, have recognized any specific signs that their
child was imminently likely to do something violent and, if so,
whether they took reasonable steps to prevent harm. Dinsmore is
surely correct that a parent need not be immediately present to be
liable for negligently failing to prevent a child's intentional
tort. But Barth, Moore, and Cooper all suggest, and we now hold,
that a plaintiff must show more than a parent's general notice of
a child's dangerous propensity. A plaintiff must show that the
parent had reason to know with some specificity of a present
opportunity and need to restrain the child to prevent some
imminently foreseeable harm. General knowledge of past misconduct
is, in other words, necessary but not sufficient for liability.
Dinsmore offered no evidence creating a triable issue on
the latter two questions. As the Alvords note, Dinsmore's one
piece of admissible evidence established Hall's likely involvement
in the Halloween assaults, five months before Dinsmore's murder.
The Alvords replied with uncontroverted affidavits that they had no
knowledge of the assaults until after the shooting. The Halloween
incident cannot contribute to showing that they should have
foreseen a specific, present opportunity and need to control Hall.
The evidence of Hall's successful September 1991 November 1992
probation suggested that the Alvords had no reason, in April 1993,
to know that he posed an imminent threat to commit a violent crime
requiring them to closely supervise him or, as Dinsmore suggests,
return him to State custody under the statutory provisions for
runaways and children who are habitually absent from home or reject
parental care. [Fn. 47]
The evidence thus raises no jury question as to whether
the Alvords should have known, at the time of the incident, of an
opportunity or need to control Hall. That leaves the failure-to-
take-general-measures argument. That argument implicates
Dinsmore's claim that it was improper to grant the Alvords summary
judgment on a disputed question of tort duty.
3. The judgment did not violate our rule disfavoring
summary adjudication of the scope or fulfillment of a tort duty.
Dinsmore stresses the body of commentary and opinions
disfavoring summary judgment in negligence cases. [Fn. 48] But she
identifies no genuine factual dispute, claiming only that a jury
could draw different inferences from the evidence and find the
Alvords negligent for not better controlling Hall. Nor does she
specify any particular inference that the court wrongly drew. She
challenges only the court's ultimate conclusions that the Alvords
showed a lack of evidence that they owed Dinsmore a duty at the
time of the murder, and that Dinsmore identified no specific facts
from which a jury reasonably could find a duty and breach thereof.
Dinsmore notes our consistent rule that a party seeking
summary judgment has the "entire burden"of proving that there are
no factual disputes and that it is entitled to judgment as a matter
of law. [Fn. 49] Dinsmore also stresses that, as the nonmovant,
she did not have to produce any evidence. [Fn. 50] But the fact
that she did not have to offer evidence until the Alvords had
"'[made] out a prima facie case that would entitle [them] to a
directed verdict if uncontroverted at trial'"[Fn. 51] does not
mean that the court erred in finding that the Alvords had done so,
that the burden had shifted to Dinsmore to show specific facts
raising a genuine issue for trial, and that she failed to do so.
We recently discussed the propriety of summarily judging
the existence or scope of a tort duty in Arctic Tug & Barge, Inc.
v. Raleigh, Schwarz & Powell, 956 P.2d 1199 (Alaska 1998). We held
that summary judgment is proper if the only reasonable inference
from undisputed facts is that a defendant simply owed a plaintiff
no duty. [Fn. 52] Summary judgment is often improper if a
defendant undisputedly owed a plaintiff some duty, and the question
is whether the duty's precise scope encompassed a given situation,
or whether given acts or omissions satisfied the duty, i.e.,
whether they constituted negligence, or due care. [Fn. 53]
Arctic Tug involved a duty that is specific to individual
plaintiffs -- the duty to disclose information. [Fn. 54] We
affirmed summary judgment because the defendant and plaintiff had
not had any meaningful contact from which any such duty could have
arisen. [Fn. 55] Under sec. 316, though, parents arguably owe some
duty to the world at large; i.e., a duty to whoever may encounter
their child to make reasonable efforts to control the child.
The Alvords, however, showed that nothing should have led
them to foresee, in mid-April 1993, a specific need and opportunity
to keep Hall from hurting someone. We might thus say that they
owed Dinsmore no duty. Or we might say that they owed Dinsmore,
along with the rest of the world, a general duty to be prepared to
control Hall. Nothing, however, had happened to convert that duty
into a duty to act; i.e., to put the Alvords on notice that they
must take steps to prevent Hall from imminently, foreseeably
harming someone. On either view, summary judgment was proper.
Dinsmore's only plausible reply is that the Alvords
should have known that Hall had a gun, because they should have
regularly searched his effects, and should have prevented the
murder, even if there were no specific signs of trouble, because
they should have imposed a curfew on Hall. But Dinsmore's view of
sec. 316 would ensure that parents who know of a child's violent
propensity would almost always have to face a jury whenever the
child hurt someone. Even if a plaintiff could show no reason that
the parents should have known of a specific need to control the
child, the plaintiff could almost always posit some stricter regime
of discipline and surveillance under which the parents might have
discovered that need. We assume for the sake of discussion that
parents' inadequate general efforts to monitor a violent child, in
the period between the child's initial misconduct and the time
immediately before the violence at issue, can support a plaintiff's
case. But the plaintiff must first make some showing that the
parents should have known at the time of a specific need and
occasion to control their child. To send to a jury the general-
measures argument alone would carry the rule of sec. 316 too far
towards making parents, once aware of their child's dangerous
propensity, into insurers and prison wardens until the child's
eighteenth birthday.
D. Whether the Superior Court Abused Its Discretion in
Making the Summary Judgment Final under Civil Rule 54(b) Is Moot.
The Alvords moved the court under Rule 54(b) to make the
summary judgment in their favor final, even though other defendants
remained in the case. Dinsmore opposed the motion and now appeals
its grant.
Rule 54(b) allows a court to "direct the entry of a final
judgment as to . . . fewer than all of the . . . parties only upon
an express determination that there is no just reason for delay."
It is an exception to the rule allowing appeals "only after the
entire case is disposed of on all substantive issues."[Fn. 56] We
have stressed that "the policy against piecemeal litigation is very
strong, and 'there must be a good reason for using [Rule] 54(b).'"
[Fn. 57] The usual reason is hardship: "Typically, use of Rule
54(b) is appropriate only if the party seeking judgment is likely
to suffer actual hardship otherwise."[Fn. 58] But the word
"typically"shows that we have not made hardship a categorical
requirement. This accords with the federal view that, since it is
impossible to catalog all reasons to grant a Rule 54(b) motion,
courts have discretion to consider any relevant factor. [Fn. 59]
The issue is moot. The reason Dinsmore opposed entry of
a final judgment was to avoid having to spend time and money on an
immediate appeal. Dinsmore has now spent that time and money, and
we have reached and affirmed the merits. Even if Dinsmore's
argument were persuasive, to remand would serve no legitimate
purpose. Indeed, it could only result in an inefficient use of
judicial resources and be an economic hardship to the parties. We
conclude that the issue is moot and therefore decline to address
it.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
Only Donna Dinsmore-Poff, Mickey's mother, has appealed. For
simplicity and consistency, however, we refer to "Dinsmore"in
discussing both the trial court proceedings and the appeal.
Footnote 2:
The State's closing argument in Hall's juvenile-waiver hearing
is not admissible to oppose summary judgment under Alaska Civil
Rule 56(e). See Jennings v. State, 566 P.2d 1304, 1310 (Alaska
1977) (holding that "allegations of fact made by counsel in oral
argument do not satisfy . . . Rule 56(e)") (citing 10 Charles
Wright & Arthur Miller, Federal Practice & Procedure sec. 2723, at
488 90 (1973)). Nor are the police reports that Dinsmore filed
without affidavit. See, e.g., French v. Jadon, Inc., 911 P.2d 20,
24 (Alaska 1996) ("[H]earsay statements that would be inadmissible
at trial are inadmissible in a motion for summary judgment.");
Alaska R. Evid. 803(8)(b)(i) (specifying that "investigative
reports by police"are not within the public-records exception to
hearsay rule).
The parties dispute whether the superior court, in ruling
on the Alvords' summary-judgment motion, was bound to consider
evidence that neither Dinsmore nor the Alvords had submitted or
mentioned, but that two other defendants had made part of the
record in the case. We need not address those arguments, however,
for Dinsmore has not pointed to anything in the disputed material
that would lead us to reverse the judgment.
Footnote 3:
Dinsmore first filed parts of the Alvords' depositions with a
motion for reconsideration and, leaving aside the impropriety of
filing new evidence with a motion for reconsideration, Dinsmore has
not appealed the denial of that motion.
Footnote 4:
See, e.g., Maddox v. River & Sea Marine, Inc., 925 P.2d 1033,
1035 (Alaska 1996).
Footnote 5:
See id.
Footnote 6:
See, e.g., Bolieu v. Sisters of Providence in Wash., 953 P.2d
1233, 1235 (Alaska 1998) (deciding whether to impose duty).
Footnote 7:
See, e.g., Williams v. Mammoth of Alaska, Inc., 890 P.2d 581,
586 (Alaska 1995).
Footnote 8:
Restatement (Second) of Torts sec. 316 (1966).
Footnote 9:
See sec. 316, Reporter's Notes at 21 24 (collecting pre-1966
cases); Wade R. Habeeb, Annotation, Parents' Liability for Injury
or Damage Intentionally Inflicted by Minor Child, 54 A.L.R.3d 974,
992 1008 (sec. 10[a] [b]) (1993 & Supp. 1997) (collecting cases).
Footnote 10:
See Lanterman v. Wilson, 354 A.2d 432, 436 (Md. 1976); J.L. v.
Kienenberger, 848 P.2d 472, 475 76 (Mont. 1993); Rodriguez v.
Spencer, 902 S.W.2d 37, 43 (Tex. App. 1995) (finding "sec. 316's
analysis helpful"but not adopting it, instead apparently limiting
liability to parents who actually know -- not just should know --
of danger); Bell v. Hudgins, 352 S.E.2d 332, 334 (Va. 1987).
Footnote 11:
See Lanterman, 354 A.2d at 433 (19-year-old, burglary);
Kienenberger, 848 P.2d at 474 (13-year-old, rape); Rodriguez, 902
S.W.2d at 39 40 (17-year-old, hate-crime murder); Bell, 352 S.E.2d
at 333 (16-year-old, assault and attempted rape).
Footnote 12:
Bell, 352 S.E.2d at 334.
Footnote 13:
See, e.g., Robertson v. Wentz, 232 Cal. Rptr. 634, 638 (Cal.
App. 1986); Gellner v. Abrams, 390 S.E.2d 666 (Ga. App. 1990);
Brahm v. Hatch, 609 N.Y.S.2d 956, 958 (N.Y. App. Div. 1994). At
least 20 case summaries appended to sec. 316 and/or to the A.L.R.
annotation cited in note 9, supra, show that this is the most
common conclusion to this sort of claim.
Footnote 14:
An archetypal example is Mitchell v. Wiltfong, 604 P.2d 79,
80, 82 (Kan. App. 1979), in which the court of appeals found a
viable complaint upon accepting as true allegations that child
repeatedly beat other children and that parents not only did
nothing to discipline but "incited"and "encouraged"him. See also
Ryley v. Lafferty, 45 F.2d 641, 642 (D. Idaho 1930); Bieker v.
Owens, 350 S.W.2d 522 (Ark. 1961); Poncher v. Brackett, 55 Cal.
Rptr. 59 (Cal. App. 1966); Ellis v. D'Angelo, 253 P.2d 675, 679 80
(Cal. App. 1953); Caldwell v. Zaher, 183 N.E.2d 706, 707 (Mass.
1962); Linder v. Bidner, 270 N.Y.S.2d 427, 430 (N.Y. Sup. 1966);
Zuckerberg v. Munzer, 100 N.Y.S.2d 910 (N.Y. App. Div. 1950);
Condel v. Sava, 39 A.2d 51, 52 53 (Pa. 1944); Seaman v. Hockman, 2
Pa. D. & C.2d 663, 54 A.L.R.3d 974, 999 (1953); Bocock v. Rose, 373
S.W.2d 441 (Tenn. 1963).
Footnote 15:
See Ryley, 45 F.2d at 642; Bocock, 373 S.W.2d at 445; Bieker,
350 S.W.2d at 526; Caldwell, 183 N.E.2d at 707; Seaman, as
summarized at 54 A.L.R.3d at 999; Condel, 39 A.2d at 53. Some of
the older opinions technically reverse orders sustaining demurrers,
rather than orders of dismissal for failure to state a claim, but
the two are functionally equivalent.
Footnote 16:
See Singer v. Marx, 301 P.2d 440, 444-45 (Cal. App. 1956).
Footnote 17:
Id. at 445.
Footnote 18:
Id.
Footnote 19:
Section 316, cmt. c (quoted in Jarboe v. Edwards, 223 A.2d
402, 404 (Conn. Super. 1966) (affirming verdict against parents
whose four-year-old son stuffed paper in child's pants and set it
afire, as parents had despaired of ending his fascination with
fire, yet did not monitor play or keep him from matches)).
Footnote 20:
See Moore v. Crumpton, 295 S.E.2d 436, 442 (N.C. 1982) ("The
opportunity to control a young man of this age [seventeen and a
half] obviously is not as great as with a younger child."); cf.
Bell, 352 S.E.2d at 334 (noting, in declining to adopt sec. 316,
that
"parental control diminishes as the child matures").
Footnote 21:
See Nieuwendorp v. American Family Ins. Co., 529 N.W.2d 594,
597, 602 (Wis. 1995) (affirming verdict against parents of
hyperactive nine-year-old who, resisting discipline, hurt teacher,
but stressing that parents would not be liable had they only warned
school when they stopped son's behavior-controlling medication).
Footnote 22:
See Costello v. Hart, 100 Cal. Rptr. 554 (Cal. App. 1972);
Duncan v. Rzonca, 478 N.E.2d 603 (Ill. App. 1985).
Footnote 23:
See Eldredge v. Kamp Kachess Youth Servs., Inc., 583 P.2d 626,
630 (Wash. 1978) (en banc) (affirming verdict against program for
troubled youth from which three boys ran away, stealing and
damaging a car, and which, when the boys were returned after ten
days, reassigned them to the same unguarded facility, whence they
again escaped three days later, stealing and damaging another car,
because record was "devoid of evidence indicating [any] increased
supervision of the boys during the 3 days"after their return);
Norton v. Payne, 281 P. 991, 992 93 (Wash. 1929) (reversing nonsuit
taken after evidence because mother had testified that father not
only had not tried to restrain daughter, but had actually
encouraged her in habit of hitting other children with sticks).
Footnote 24:
See, e.g., Horton v. Reaves, 526 P.2d 304, 307 (Colo. 1974)
(en banc) (affirming dismissal of claim against mother whose young
sons dropped an unattended infant they found in bed, where infant's
mother testified that, when defendant's children had once before
pushed a child off a bed, defendant had "reprimanded her children
for this behavior . . . indicat[ing] that [she] exercised due care
in watching over [her sons]."); Zuckerbrod v. Burch, 210 A.2d 425,
426 (N.J. App. 1965) (affirming dismissal in case in which five-
year-old threw a rod into a child's eye because, when he had thrown
things at others, his mother "had spoken to him on several
occasions . . . [and told him] 'he shouldn't throw things.'").
Footnote 25:
Ross v. Souter, 464 P.2d 911, 913-14 (N.M. App. 1970).
Footnote 26:
Id. at 914.
Footnote 27:
"[T]he Superior Court interpreted the 'opportunity to control'
to be tantamount to the parent being present at the exact spot,
time and place, where the minor child commits the tort." See
Appellant's Brief at 21.
Footnote 28:
Cf. Campbell v. Haiges, 504 N.E.2d 200, 203 (Ill. App. 1987)
(dictum) (implying narrow definition of ability to control child).
Footnote 29:
See Cooper v. Meyer, 365 N.E.2d 201, 202 (Ill. App. 1977).
Footnote 30:
Id.
Footnote 31:
See id. at 203 (distinguishing Ellis v. D'Angelo, 253 P.2d
675, 679 80 (Cal. App. 1953)).
Footnote 32:
See Barth v. Massa, 558 N.E.2d 528, 531 (Ill. App. 1990).
Footnote 33:
See id. at 530 31.
Footnote 34:
See id. at 535.
Footnote 35:
Id. at 534.
Footnote 36:
Id. (quoting sec. 316, cmt. b.).
Footnote 37:
Id. (citing Cooper, 365 N.E.2d at 203).
Footnote 38:
See Moore v. Crumpton, 295 S.E.2d 436, 440 (N.C. 1982). We do
not find persuasive Dinsmore's argument that the court applied a
significantly different analysis from that of sec. 316.
Footnote 39:
See id. at 442.
Footnote 40:
See id. at 438.
Footnote 41:
Id. at 438.
Footnote 42:
Id. at 442.
Footnote 43:
Id. at 439.
Footnote 44:
Id. at 442.
Footnote 45:
Id. at 439; see also id. at 442.
Footnote 46:
Id. at 442.
Footnote 47:
See AS 47.10.010(a)(1), 47.10.141.
Footnote 48:
See, e.g., Maddox v. River & Sea Marine, Inc., 925 P.2d 1033,
1035 36 (Alaska 1996); 10A Charles A. Wright et al., Federal
Practice and Procedure sec. 2729, at 533 36, 551 72 (1998).
Footnote 49:
See Nizinski v. Golden Valley Elec. Ass'n, 509 P.2d 280, 283
(Alaska 1973) (quoted in Shade v. Co & Anglo Alaska Serv. Corp.,
901 P.2d 434, 437 (Alaska 1995) and Williams v. Municipality of
Anchorage, 633 P.2d 248, 250 (Alaska 1981)).
Footnote 50:
See, e.g., Webb v. City & Borough of Sitka, 561 P.2d 731, 735
n.18 (Alaska 1977).
Footnote 51:
Shade, 901 P.2d at 437 (quoting 10A Charles A. Wright et al.,
Federal Practice & Procedure sec. 2727, at 143 46 (1983)).
Footnote 52:
See Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956
P.2d 1199, 1203-04 (Alaska 1998).
Footnote 53:
See id. at 1203.
Footnote 54:
See id. at 1202 (citing Restatement (Second) of Torts sec. 551
(1977)).
Footnote 55:
See id. at 1202 03.
Footnote 56:
Johnson v. State, 577 P.2d 706, 709 (Alaska 1978).
Footnote 57:
S & B Mining Co. v. Northern Commercial Co., 813 P.2d 264, 269
(Alaska 1991) (quoting Johnson, 577 P.2d at 710).
Footnote 58:
Williams v. Mammoth of Alaska, Inc., 890 P.2d 581, 586 (Alaska
1995) (citing Johnson, 577 P.2d at 710).
Footnote 59:
See 10 Jeffrey W. Stempel, Moore's Federal Practicesec. 54.23[1][b],
at 54 71 (3d ed. 1997); 10 Wright et al., supranote 55, sec. 2659,
at 111 12 (citing Curtiss-Wright Corp. v. General Elec.
Co., 446 U.S. 1, 10 11 (1980)).
