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P.G. and R.G. v. State, Dept of Health & Human Services, DFYS (6/30/00)
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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
P.G. and R.G., )
) Supreme Court No. S-8062/8142
Appellants and )
Cross-Appellees, ) Superior Court No.
) 3KN-93-64 CI
v. )
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF HEALTH AND HUMAN SERVICES, )
DIVISION OF FAMILY AND )
YOUTH SERVICES, ) [No. 5294 - June 30, 2000]
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, at Kenai,
Harold M. Brown, Judge.
Appearances: John S. Hedland, and Amy L.
Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage, for
Appellants/Cross-Appellees. William F. Morse, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee/Cross-Appellant.
Before: Matthews, Chief Justice, Fabe,
Bryner, and Carpeneti, Justices. [Eastaugh, Justice, not
participating]
BRYNER, Justice.
I. INTRODUCTION
Penny and Richard Green [Fn. 1] sued the Division of
Family and Youth Services (DFYS) after their foster child, Billy,
physically and sexually assaulted their two children. The Greens
alleged that DFYS negligently failed to disclose information that
would have alerted them to the risks of accepting Billy into their
home. The superior court assumed that DFYS had a duty to give the
Greens relevant information about Billy. But it granted summary
judgment to DFYS, finding part of their claim barred by
AS 09.50.250(3) -- which immunizes the state from claims of
misrepresentation -- and the balance barred because Billy's actions
were unforeseeable. We reverse, concluding that DFYS owed the
Greens a duty of disclosure, that a reasonable jury could find
Billy's actions a foreseeable result of breaching this duty, and
that AS 09.50.250(3) only bars suits for financial or commercial
misrepresentations.
II. FACTS AND PROCEEDINGS [Fn. 2]
In November 1991 Penny and Richard Green became the
foster parents of Billy, a child in need of aid who was then
thirteen years old. Although they had a daughter and son of their
own, aged eight and ten, the Greens were first-time foster parents.
Before moving to Alaska in 1990, Billy and his brother
lived in Washington state with their mother. Washington school
officials described Billy as "a troubled boy with much anger." In
September 1990, after Billy displayed behavioral problems in
school, Billy's mother sent the two boys to live with their father
in Soldotna.
Once Billy arrived in Alaska, his father alerted Billy's
new school to potential problems and worked with the school to
provide an appropriate placement. On September 20 Billy's father
took Billy to see Dr. Kathleen Dinius, a Soldotna psychologist.
Dr. Dinius reported that Billy's mother had described him as
"exhibiting serious behavior problems." Dr. Dinius stated that she
"anticipated . . . that [Billy] would develop behavior problems,
probably of a serious nature . . . that would require professional
help."
Edward Harrison, a school psychologist, also interviewed
and tested Billy to determine an appropriate grade placement. In
a report dated September 27, 1990, Harrison noted that Billy's
teacher had described him as "street wise." Harrison found Billy
to be "evasive and guarded in his responses." Testing showed signs
that the boy was anxious over self-disclosure and depressed, and
also suggested "themes of anger, feelings of abandonment and being
without control in an untrustworthy adult world." Harrison warned
that Billy's "defenses appear taxed to a point where withdrawal may
be necessary for coping with adults . . . . The future may appear
chaotic and out of control to [Billy] with little hope for adequacy
in meeting normal social role expectations as a person, as student
or as a son."
According to Harrison, Billy would "become easily upset
when given constructive criticism. His outlook is
pessimistic . . . ." Harrison concluded that "[f]or educational
purposes [Billy] should be considered severely emotionally
disturbed and in need for special education intervention for him to
benefit from his educational program. . . . His difficulties have
persisted over a long period of time and to a marked degree they
have adversely affected his educational performance." One of the
tests that Harrison gave Billy consisted of a display of ambiguous
pictures. Billy's responses focused on murder, death, anger,
suicide, guns, blood, sex and sexuality, disease, and
strangulation.
Billy encountered difficulty at school throughout the
ensuing year. In April 1991 a special services teacher wrote that
Billy "has psychological needs that are not being met at this
time," was not making satisfactory progress in school despite the
school's attempts to meet his needs, and would benefit from outside
counseling.
DFYS first became involved with Billy in April, after he
and his older brother contacted the agency and asked to be placed
in a foster home. The boys told a DFYS social worker that their
father "has kicked [and] hit [Billy] in the past," "smokes pot all
day" and "is moody [and] unpredictable when high," and offered
marijuana to them. The boys went to the home of an aunt -- their
father's sister -- who confirmed that Billy's father abused his
children; she indicated that she did not want them to return to his
home.
A few days later, DFYS caseworker Pam McDermott
interviewed Billy's father, who denied any abuse. Billy's father
told McDermott that Billy was "street wise" and had come to Alaska
with a cigarette addiction. Billy's father also informed McDermott
that a school psychologist had evaluated Billy and that Billy had
seen Dr. Dinius. Afraid that Billy would be defiant and would not
cooperate, his father initially told McDermott that he did not want
Billy back. McDermott also interviewed Billy that day and found
him "very uncooperative, defiant, negative, sneering." After
concluding that Billy would be safe with his father and securing
his father's agreement to take him back, McDermott allowed Billy to
return home.
Billy subsequently became involved in two school-related
fighting incidents with girls in which he pulled down the pants of
-- or "pantsed" -- his opponents. On each occasion, Billy was
suspended from school for his behavior. The second incident
occurred on October 31, 1991. While being questioned in the school
office about the pantsing, Billy told school officials that he did
not want to return home because, according to the caseworker's
report, "he won[']t live in that kind of place anymore." The
school contacted DFYS, which took emergency custody and placed
Billy in a temporary foster home. His temporary foster father, Tom
Musgrove, evidently knew that Billy had psychological and
behavioral problems and was aware that the school psychologist,
Harrison, had evaluated Billy; [Fn. 3] on November 8, 1991,
Musgrove talked to McDermott about these issues, recommending that
DFYS speak with Harrison about Billy's progress.
Several days later, DFYS gave custody of Billy to the
Greens. Their involvement resulted from a telephone call by
Penny's mother to a DFYS office to inquire about becoming a foster
parent. DFYS caseworker Lela McNutt told Penny's mother about
Billy's situation. According to Penny's mother, McNutt "played on
my heartstrings," offering her custody of Billy and saying that he
was being abused by his father, had recently been placed in a
temporary foster home, and urgently needed a more permanent
placement. Penny's mother demurred, telling McNutt that her
current living quarters were too small to accommodate a foster
child and that she was planning to buy a larger home. But that
night, at dinner, Penny's mother told Penny and Richard about her
conversation with McNutt and described Billy's plight. The Greens
decided that they might be able to take Billy.
Penny and her mother went to the DFYS office on
November 11, 1991, for what Penny expected would be an initial
consultation. But upon meeting with McNutt, they found that she
was ready to arrange the foster placement immediately, telling
Penny and her mother that Billy "was a really good kid, had never
been in trouble before, had never been in a foster home before, had
no problems, that he -- that he was just a kid that needed a place
to stay . . . ." Relying on McNutt's statements, the Greens agreed
to take foster custody of Billy; he arrived at their home the same
day.
DFYS gave the Greens few special instructions about
foster parenting and no specific information about Billy. As
Penny's mother testified in her deposition:
[T]here was no orientation at all. We just
went over there, met with her, she came over and looked at the
home, we went over and got [Billy]. That was it. . . . [my
daughter and son-in-law] just, I guess, assumed you take care of a
foster child just like you take care of any child; you feed them,
clothe them, love them, care for them, just like you do any child.
Billy lived with the Greens and their two children until
February 1992. Neighbors reported Billy to the Department of Fish
and Game for shooting at a moose with a BB gun. Billy also became
involved in a new "pantsing" incident, pulling down the pants of
another child, "underwear [and] all[,] in front of many people."
When confronted by the Greens, Billy's anger escalated, and his
attitude deteriorated; the Greens felt that they could not control
him, and ultimately relinquished custody to DFYS.
After Billy left the Greens, their children disclosed
that Billy had repeatedly assaulted them, sexually and physically
abusing the daughter and physically abusing the son. The children
said that Billy had also threatened to rape the daughter and kill
the children's parents and pets if the children told anyone about
his misconduct. The Greens reported Billy's assaults to the
police. After investigating the reports, the state filed
delinquency charges against Billy, who ultimately admitted engaging
in conduct amounting to fourth-degree assault and was adjudicated
a delinquent.
The Greens sued the state in January 1993, alleging that
DFYS knew or should have known that Billy posed a serious threat of
harm and that the agency negligently injured them and their
children by breaching its duties to protect the Greens and provide
them with information before it placed Billy in their home.
DFYS moved for summary judgment, characterizing Count III
of the Greens' complaint -- their claim for failure to disclose
information -- as a claim of misrepresentation and arguing that, as
such, it was barred by AS 09.50.250(3) -- a provision immunizing
the state from claims arising out of misrepresentation. The
superior court partially granted the state's motion, dismissing
Count III because it included allegations of misrepresentation.
After the parties took numerous depositions, the Greens
moved for summary judgment on their remaining claims. DFYS
eventually filed a cross-motion for summary judgment. The superior
court granted summary judgment to the state and dismissed the case,
finding insufficient evidence in the record to establish that
Billy's actions were foreseeable.
The Greens appeal the superior court's summary judgment
orders.
III. DISCUSSION
A. Standard of Review
In reviewing a grant of summary judgment, we consider
whether there were any genuine issues of material fact and whether
the moving party was entitled to judgment as a matter of law. [Fn.
4] We view the facts in the light most favorable to the non-moving
party. [Fn. 5]
B. Did the Superior Court Err in Finding No Genuine Issues
of Material Fact?
1. DFYS's duty of care to the Greens
In summarily rejecting the Greens' claim that DFYS failed
to exercise the care necessary to prevent Billy from harming them,
the superior court assumed "that the State owed a duty of
reasonable care to the [Greens]." But it found that despite this
duty, summary judgment was warranted because "there are no issues
of material fact and reasonable people could not disagree that the
actions of [Billy] complained of were not foreseeable."
The state concedes it owes a duty of due care to protect
prospective foster parents from harm by foster children and that
the duty takes form in a requirement of reasonable disclosure:
"The State agrees that it must provide prospective foster parents
with reasonable information about a child prior to placement and
must take reasonable steps to gather such information." We too
agree that the state owes a duty of reasonable care to protect
prospective foster parents.
As we recently emphasized, "[t]he existence of a duty
turns not on the particularized facts of a given case, but rather
on the basic nature of the relationship between the parties to the
cause of action." [Fn. 6] In D.S.W. v. Fairbanks North Star
Borough School District, we laid out the factors that courts must
consider in determining whether a duty of care exists. [Fn. 7]
Applying the D.S.W. factors in Division of Corrections v. Neakok,
we determined that the special relationship between the Alaska
Department of Corrections and parolees under its supervision gave
rise to an actionable duty to warn or otherwise protect their
potential victims. [Fn. 8] We similarly concluded in R.E. v. State
that the state owed parents whose children used DFYS-licensed
daycare facilities a duty to take reasonable steps to prevent harm
to their children from sexual abuse. [Fn. 9]
D.S.W., Neakok, and R.E. compel us to find the existence
of a duty in the present case. [Fn. 10] Here, as in Neakok and
R.E., DFYS stands in a special relationship both with children in
need of aid who come under its supervision and with prospective
foster parents whom it seeks to enlist as their custodians.
Because placing a foster child poses foreseeable risks to new
foster parents, [Fn. 11] this special relationship requires DFYS to
exercise due care to minimize potential harm by making reasonable
efforts to gather and disclose facts necessary to give foster
parents an informed basis for deciding whether to accept a
particular child and what supervision the child may need.
We emphasize that this duty to investigate and disclose
only requires DFYS to take steps that a reasonable person in its
position would find prudent under the totality of the
circumstances. Determining whether this duty has been breached
will require a careful, case-specific balancing of factors such as
the recency, reliability, and accessibility of any undisclosed
information, the nature and degree of risk stemming from
nondisclosure, the child's legitimate interests in privacy, the
state's compelling interest in ensuring prompt and appropriate
placement for children needing aid, the limited resources of an
agency like DFYS, the agency's compliance with its own internal
policies, and the existence of any unusual exigencies. [Fn. 12]
While the precise scope of this duty is a question of fact for the
jury, [Fn. 13] its general contours here are clearly defined by
DFYS standards governing disclosure. DFYS's Child Protective
Services Manual provides:
To assist the foster family in making an
informed decision regarding whether to accept a particular child,
to help the foster family anticipate problems which may occur
during the child's placement, and to help the foster family meet
the needs of the child in a constructive manner, [the agency shall]
provide the following information to the foster family:
1. the strengths, needs, and general
behavior of the child;
2. circumstances which necessitated
placement of the child;
3. information about the child's family and
his relationship to his family;
4. [i]mportant life experiences and
relationships which may affect the child's feelings, behavior,
attitudes, or adjustment;
5. [m]edical history, to include third party
coverage which may be available to the child;
6. education history, to include present
grade placement, special strengths, weaknesses.[ [Fn. 14]]
Under these standards, the information at issue in the
present case -- school performance and disciplinary records,
relevant information from recent psychological evaluations, and
past family and placement history -- falls squarely within the
range of disclosable information. [Fn. 15]
2. Foreseeabiliy of alleged harm caused by Billy.
The superior court's primary basis for granting summary
judgment was that Billy's actions were not foreseeable:
Referring to certain language in DFYS
guidelines, Plaintiffs suggest that . . . "but for" the failure of
DFYS to communicate such information, the injuries would not have
occurred. The simplicity of such a theory has certain visceral
appeal. But it is not one upon which the liability of DFYS can be
predicated. Based upon all information available to DFYS at the
time of placement, it was not foreseeable that [Billy] would engage
in assaultive behavior towards the foster children.
(Footnote omitted.)
We often use the concept of foreseeability to determine
the existence of a duty: if no harm is foreseeable from the
defendant's conduct, then no duty is owed. [Fn. 16] Yet here the
superior court explicitly assumed that DFYS did owe a duty to the
Greens, so its finding of unforeseeability necessarily addressed
issues of causation and negligence rather than duty.
We have upheld summary judgment on questions of tort duty
when "the undisputed facts support only one reasonable inference."
[Fn. 17] But "in cases where no one disputes the existence of a
duty running from one party to another, we have disfavored summary
adjudication of the precise scope of that duty, or of whether
particular conduct did or did not breach it (i.e., constitute
negligence)." [Fn. 18] Yet, in this case, the state urges us to
uphold the superior court's ruling because none of the allegedly
undisclosed information here pointed specifically to the
possibility that Billy might assault the Greens' children:
It does not matter whether the predictive
quality of the unfurnished information is analyzed in terms of
whether there was a duty to reveal that information, whether the
State breached any informative duty, or whether ignorance of the
information was a proximate cause of the harm to the [Green]
children. Regardless of the legal category to which foreseeability
is assigned, the outcome is the same. Even assuming that the State
should have known of and disclosed the information, disclosure
would not have made [Billy's] assaultive behavior foreseeable.
In pressing this argument, the state relies heavily on
this court's recent decision in Dinsmore-Poff v. Alvord. [Fn. 19]
There, the parents of a young homicide victim sued the parents of
his assailant -- a seventeen-year-old boy with a history of
juvenile crime -- for negligent supervision; in affirming summary
judgment against the plaintiffs, we acknowledged that the
assailant's parents were on notice of his general propensity for
assaultive behavior, but we held that to prevail on a negligent
supervision claim,
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.[ [Fn.
20]]
But Dinsmore-Poff and the other similar cases upon which
the state relies [Fn. 21] are readily distinguishable from the
present case; the cause of action that they address is negligent
supervision, a narrow theory of liability predicated on the
supervisory duty over children that parents owe to the community at
large. [Fn. 22] As we emphasized in Dinsmore-Poff, the Restatement
of Torts limits this cause of action to cases in which a parent
"knows or has reason to know that [the parent] has the ability to
control [the] child, and . . . knows or should know of the
necessity and opportunity for exercising such control." [Fn. 23]
In requiring specific knowledge of "imminently foreseeable harm,"
our opinion in Dinsmore-Poff did not construe or narrow the
traditional foreseeability standard; rather, it interpreted and
applied the Restatement's "necessity and opportunity" requirement
-- a substantive element of a negligent supervision claim. [Fn. 24]
By contrast, we deal here not with a negligent
supervision claim or with a general supervisory duty that the state
owes to the public, but rather with the more specific duty of due
care that DFYS owes prospective foster parents -- a duty arising
from the special relationship that the agency creates when it
enlists adults to accept foster custody and places foster children
in their homes. In this situation we apply the same conventional
principles of foreseeability that we normally apply to questions of
causation and negligence.
We have generally recognized that a defendant's negligent
conduct may be the legal or proximate cause of the plaintiff's
injury if the negligent act was more likely than not a substantial
factor in bringing about the injury. [Fn. 25] "The issue of
proximate cause is normally a question of fact for the jury to
decide and becomes a matter of law only where reasonable minds
could not differ." [Fn. 26]
Negligence and causation necessarily involve foreseeable
risks. [Fn. 27] But in this context foreseeability does not imply
an ability to predict precise actions or injuries: "When the risk
created causes damage in fact, insistence that the precise details
of the intervening cause be foreseeable would subvert the purpose
of that rule of law." [Fn. 28] Thus, Prosser and Keeton note that
there is "quite universal agreement that what is required to be
foreseeable is only the 'general character' or 'general type' of
the event or the harm, and not its 'precise' nature, details, or
above all manner of occurrence." [Fn. 29] Or as the Restatement
puts it,
[t]he fact that the actor, at the time of his
negligent conduct, neither realized nor should have realized that
it might cause harm to another of the particular kind or in the
particular manner in which the harm has in fact occurred, is not of
itself sufficient to prevent him from being liable for the other's
harm if his conduct was negligent toward the other and was a
substantial factor in bringing about the harm.[ [Fn. 30]]
Prosser and Keeton observe that foreseeability is a
question "of the fundamental policy of the law, as to whether the
defendant's responsibility should extend to such results." [Fn. 31]
The Restatement presents the analytical approach for answering this
policy question as follows: "The actor's conduct may be held not
to be a legal cause of harm to another where after the event and
looking back from the harm to the actor's negligent conduct, it
appears to the court highly extraordinary that it should have
brought about the harm." [Fn. 32]
Our own cases follow the same approach. [Fn. 33] Its
expansive view of foreseeability seldom warrants summary dismissal
of a negligence claim on the ground of unforeseeability:
Perhaps the Restatement has come close to
expressing the underlying idea of a limitation of liability short
of the remarkable, the preposterous, the highly unlikely, in the
sometime language of the street the cock-eyed and far-fetched, even
when we look at the event, as we must, after it has occurred.[ [Fn.
34]]
In the present case, the superior court concluded as a
matter of law that the information available to DFYS could not have
allowed a reasonable person to predict Billy's subsequent assaults
on the Greens' children. But the accuracy of this conclusion is
beside the point for purposes of determining DFYS's potential
liability. For as we have explained, foreseeability does not
require an ability to predict precise actions and exact injuries.
Considering the evidence in the light most favorable to
the Greens, it does not seem "highly extraordinary" that DFYS's
conduct "should have brought about the harm" allegedly committed.
[Fn. 35] Reasonable jurors applying the correct standard of
foreseeability could properly conclude that McNutt's alleged
description of Billy as "a really good kid" who "had never been in
trouble before" and "had no problems" was highly misleading, that
DFYS failed to make reasonable efforts to gather and disclose
relevant information concerning Billy's background, that this
failure exposed the Greens to a foreseeable and unjustifiable risk
that Billy might engage in harmful actions, that the injuries he
allegedly inflicted were of the general nature that could be
expected, and that the Greens could have avoided these injuries --
either by declining to accept Billy as a foster child or by
subjecting him to more rigorous supervision -- had they known what
they were entitled to know.
Accordingly, we conclude that the superior court erred in
finding no genuine factual dispute on the issue of foreseeability
and in granting summary judgment to the state on that basis.
C. Did the Superior Court Err in Granting Partial Summary
Judgment to DFYS on Immunity Under AS 09.50.250(3)?
We must separately consider whether the Greens' claim for
negligent failure to disclose was subject to dismissal under
AS 09.50.250(3). Section .250 generally waives the state's
sovereign immunity from suit, but subsection .250(3) provides that
"an action may not be brought [against the state] under this
section if the claim . . . arises out of misrepresentation . . . ."
In interpreting this provision, we rely heavily on federal cases
interpreting the Federal Tort Claims Act, which also contains a
"misrepresentation" clause. [Fn. 36]
The United States Supreme Court held in United States v.
Neustadt that under this analogous provision of the federal act the
federal government is immune from liability for misrepresentation
arising from a negligent home appraisal by the Federal Housing
Authority. [Fn. 37] The Court noted, however, that its holding did
not immunize the government from liability in general negligence
cases:
[M]any familiar forms of negligent conduct may
be said to involve an element of "misrepresentation," in the
generic sense of that word, but "[s]o far as misrepresentation has
been treated as giving rise in and of itself to a distinct cause of
action in tort, it has been identified with the common law action
of deceit," and has been confined "very largely to the invasion of
interests of a financial or commercial character, in the course of
business dealings."[ [Fn. 38]]
Here, while the Greens do allege that DFYS misrepresented
facts regarding Billy's personal history and character, their
allegations do not arise from the invasion of any commercial or
financial interests. They serve only to support the Greens'
general theory that DFYS negligently failed to gather and disclose
relevant information, and thereby caused personal injury to their
children. The Greens do not purport to advance a separate claim
for the tort of misrepresentation.
In Johnson v. State, the California Supreme Court noted
that
"misrepresentation" potentially lends itself
to extremely expansive and elusive interpretations. A driver of an
automobile who makes a misleading turn signal, for example,
literally has "misrepresented" his intentions and subsequent course
of conduct. Yet it would be senseless to hold the state liable if
its employee failed to make any signal, arguably a
"nonrepresentation," but reach the opposite result if he
affirmatively "misrepresented" his intentions.[ [Fn. 39]]
Similarly, it would be senseless here to hold the state liable for
failing to gather and disclose relevant information to potential
foster parents, while providing immunity for affirmatively
misrepresenting Billy's suitability for foster placement.
We thus agree with the California Supreme Court's view
that a "'misrepresentation,' as a tort distinct from the general
milieu of negligent and intentional wrongs, applies to
interferences with financial and commercial interests." [Fn. 40]
We conclude that AS 09.50.250(3) only exempts the state from this
type of misrepresentation claim. Because the Greens' claim against
DFYS does not arise from an invasion of financial or commercial
interests, AS 09.50.250(3) does not apply. We reverse the superior
court's grant of summary judgment based on this provision.
IV. CONCLUSION
DFYS owes a duty of due care to disclose relevant
information to prospective foster parents. The evidence here,
taken in the light most favorable to the Greens, would permit a
reasonable jury to find that DFYS breached this duty and that its
breach caused the Greens to suffer forseeable injuries. The
Greens' claim for negligent nondisclosure does not allege financial
or commercial misrepresentations and so is not subject to dismissal
under AS 09.50.250(3). Accordingly, we REVERSE the superior
court's summary judgment orders and REMAND for further proceedings.
[Fn. 41]
FOOTNOTES
Footnote 1:
We use pseudonyms for the appellants and members of their
family, including their foster son, to protect their privacy.
Footnote 2:
Because we are reviewing an order granting summary judgment
against the Greens, our discussion of the facts presents the
evidence in the light most favorable to their claim. See Howarth
v. State, Public Defender Agency, 925 P.2d 1330, 1332 (Alaska
1996).
Footnote 3:
The record does not establish how Musgrove obtained this
information.
Footnote 4:
See Drake v. Hosley, 713 P.2d 1203, 1205 (Alaska 1986).
Footnote 5:
See Howarth v. State, Public Defender Agency, 925 P.2d 1330,
1332 (Alaska 1996).
Footnote 6:
M.A. v. United States, 951 P.2d 851, 854 & n.6 (Alaska 1998)
(quoting W. Page Keeton et al., Prosser and Keeton on the Law of
Torts sec. 53, at 356 (5th ed. 1984) ("It is better to reserve
'duty'
for the problem of the relation between individuals which imposes
upon one a legal obligation for the benefit of the other, and to
deal with particular conduct in terms of a legal standard of what
is required to meet the obligation.")). See also Division of
Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986) (quoting
Prosser, Law of Torts (4th ed. 1971) at 325-26 ("'Duty,' as the
word is used in negligence law, 'is not sacrosanct in itself, 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.'")).
Footnote 7:
628 P.2d 554, 555-56 (Alaska 1981) (quoting Peter W. v. San
Francisco Unified Sch. Dist., 131 Cal. Rptr. 854, 859-60 (1976)).
Specifically, we listed the following factors:
[1] The foreseeability of harm to the
plaintiff, [2] the degree of certainty that the plaintiff suffered
injury, [3] the closeness of the connection between the defendant's
conduct and the injury suffered, [4] the moral blame attached to
the defendant's conduct, [5] the policy of preventing future harm,
[6] 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 [7] the availability, cost and prevalence
of insurance for the risk involved.
Id.
Footnote 8:
See Neakok, 721 P.2d at 1126 (citing Tarasoff v. Regents of
Univ. of Cal., 551 P.2d 334, 342-43 (Cal. 1976) and Restatement
(Second) of Torts sec. 315 (1965) ("[T]he common law has not
required
a defendant to prevent foreseeable harm when, to do so, he or she
must control the conduct of another person or warn of such conduct.
This rule has an important exception: When a defendant stands in
a special relationship to either the dangerous person or the
potential victim, the defendant is required to control the
dangerous person or warn or otherwise protect the victim.").
Footnote 9:
878 P.2d 1341, 1345 (Alaska 1994).
Footnote 10:
We note that the Nebraska Supreme Court has found the same
duty to exist in similar circumstances. See Haselhorst v. State,
485 N.W.2d 180 (Neb. 1992); see also Talle v. Nebraska Dep't of
Soc. Servs., 541 N.W.2d 30 (Neb. 1995); Moore v. State, 515 N.W.2d
423 (Neb. 1994).
Footnote 11:
In the context of determining the existence of a duty, we have
made it clear that foreseeability is a broad concept and does not
require that the precise harm in a given case be predictable. See,
e.g., Neakok, 721 P.2d at 1127 n.7 ("In deciding whether
Nukapigak's criminal acts were a 'foreseeable' risk of a failure to
use due care, we do not determine whether, under the specific facts
of this case, state employees should have foreseen that the murders
would occur."); R.E., 878 P.2d at 1346-47 (stating, as a basis for
rejecting argument that DFYS could not have foreseen sexual abuse
that occurred at the daycare clinic it licensed, that "[s]exual
abuse was a prevalent social concern in the early 1980's. . . . 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.").
Footnote 12:
See generally Restatement (Second) of Torts sec.sec. 291-293
(1965).
Footnote 13:
See, e.g., Arctic Tug & Barge, Inc. v. Raleigh, Schwarz &
Powell, 956 P.2d 1199, 1203 (Alaska 1998) ("Summary judgment is
proper where the only reasonable inference from the undisputed
facts is that one party owed another no duty whatsoever -- or owed
a duty clearly and vastly narrower in scope than the one that the
other party asserts in opposing summary judgment."); see also
Neakok, 721 P.2d at 1127 n.7 ("While a specific case-by-case
determination of foreseeability and causation lies within the
province of a jury, the existence of a duty is a question of
law.").
Footnote 14:
DFYS Child Protective Services Manual Ch. 3.0, sec. 3.9(c)
(1991).
Footnote 15:
The state separately argues that the Greens waived their right
to rely on the deposition testimony of school psychologist
Harrison. We find no merit to this argument.
Footnote 16:
See Dinsmore-Poff v. Alvord, 972 P.2d 978, 987 (Alaska 1999);
see also supra note 11.
Footnote 17:
Arctic Tug, 956 P.2d at 1203 (citing Smith v. State, 921 P.2d
632, 634 (Alaska 1996)).
Footnote 18:
Id.
Footnote 19:
972 P.2d at 978.
Footnote 20:
Id. at 986.
Footnote 21:
See, e.g., Adolph E. v. Linda M., 170 A.D.2d 1011, 566
N.Y.S.2d 165 (N.Y. App. Div. 1991); Moore v. Crumpton, 295 S.E.2d
436 (N.C. 1982); Barrett v. Pacheco, 815 P.2d 834 (Wash. App.
1991).
Footnote 22:
See Dinsmore-Poff, 972 P.2d at 981.
Footnote 23:
Id. at 980-81 (quoting Restatement (Second) of Torts sec. 316
(1965) (emphasis added)).
Footnote 24:
Id. at 981-86.
Footnote 25:
See Morris v. Farley Enters., Inc., 661 P.2d 167, 169 (Alaska
1983).
Footnote 26:
Dura Corp. v. Harned, 703 P.2d 396, 406 (Alaska 1985).
Footnote 27:
W. Page Keeton et al., Prosser and Keeton on the Law of Torts
sec. 43, at 280-81 (5th ed. 1984).
Footnote 28:
Yukon Equip., Inc. v. Fireman's Fund Ins. Co., 585 P.2d 1206,
1212 (Alaska 1978), quoted in Williford v. L.J. Carr Invs., Inc.,
783 P.2d 235, 238 (Alaska 1989). See also Atwater v. Matanuska
Elec. Ass'n, Inc., 727 P.2d 774, 778 n.6 (Alaska 1986) (citing
Restatement (Second) of Torts sec. 435 (1965)). This court has
imposed a more stringent foreseeability requirement in matters of
purely economic harm. See, e.g., Mesiar v. Heckman, 964 P.2d 445,
451 (Alaska 1998); Mattingly v. Sheldon Jackson College, 743 P.2d
356, 361 (Alaska 1987).
Footnote 29:
Keeton et al., supra note 27, sec. 43, at 299 (footnotes
omitted).
Footnote 30:
Restatement (Second) of Torts sec. 435, cmt. a (1965).
Footnote 31:
Keeton et al., supra note 27, sec. 43, at 281.
Footnote 32:
Restatement (Second) of Torts sec. 435(2) (1965) (emphasis
added). See also Keeton et al., supra note 27, sec. 43, at 281
("Whether there is to be such legal responsibility is a matter of
policy, of the end to be accomplished . . . .").
Footnote 33:
See Fancyboy v. Alaska Village Elec. Co-op., Inc., 984 P.2d
1128, 1134 (Alaska 1999); Dura Corp. v. Harned, 703 P.2d 396, 402
(Alaska 1985). This standard of foreseeability applies to
questions of negligence and causation:
The usual answer has been that
"foreseeability" means, in "proximate cause," the same thing as in
negligence; and that the same considerations which determine the
original culpability are to be used again to determine liability
for consequences.
Keeton et al., supra note 27, sec. 43, at 298.
Footnote 34:
Keeton et al., supra note 27, sec. 43, at 299.
Footnote 35:
Restatement (Second) of Torts sec. 435(2) (1965).
Footnote 36:
See State v. Abbott, 498 P.2d 712, 717 (Alaska 1972); 28
U.S.C. sec. 2680 (1999).
Footnote 37:
366 U.S. 696 (1961).
Footnote 38:
Id. at 711 n.26 (quoting Prosser, Torts sec. 85, "Remedies for
Misrepresentation," at 702-03 (1941)).
Footnote 39:
447 P.2d 352, 364 (Cal. 1968).
Footnote 40:
Id. at 365.
Footnote 41:
Our reversal makes it unnecessary to consider the Greens'
challenge to the superior court's order awarding the state
prevailing party attorney's fees. The award must be vacated
because the state is no longer the prevailing party.
