RAYMOND DAPO v. STATE OF ALASKA, OFFICE OF CHILDREN‘S SERVICES аnd TAUN LUCAS
Supreme Court No. S-17139
THE SUPREME COURT OF THE STATE OF ALASKA
December 13, 2019
Opinion No. 7423
Superior Court No. 4FA-15-01892 CI
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge.
Appearances: Michael C. Kramer and Robert John, Kramer and Associates, Fairbanks, for Appellant. Aisha Tinker Bray, Assistant Attorney General, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Office of Childrеn‘s Services.
Before: Bolger, Chief Justice, Winfree, Stowers, and Maassen, Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A young man filed suit against his adoptive mother for sexual abuse that allegedly occurred 13 years earlier, shortly after he was adopted. The adoptive mother filed a third-party claim against the Office of Children‘s Services (OCS) for apportionment of fault and assigned the claim to the man in exchange for his agreement to release her from liability.
The superior court granted OCS‘s motion to dismiss the apportionment claim, holding that it was barred by the ten-year statute of repose,
II. FACTS AND PROCEEDINGS
A. Facts
Raymond Dapo was born in 1990. OCS1 took custody of him ten years later and, in April 2000, placed him in Taun Lucas‘s foster home. Lucas and her husband David legally adopted Dapo in May 2002. According to Dapo, Lucas began sexually abusing him shortly thereafter; Lucas, however, alleged that she was sexually abused by Dapo, and Dapo, then 11 years old, was arrested and charged with two counts of first-degree sexual assault. The charges were eventually dropped, and Dapo was returned to the custody of the State as a dependent child.
B. Proceedings
Dapo reached the age of majority on September 5, 2008. On May 19, 2015, when he was 24 years old, Dapo filed a complaint against Lucas alleging that she had sexually abused him while he was a minor. In September 2015 Lucas filed а third-party claim against OCS for apportionment of fault, contending that OCS “had a duty to protect” Dapo and “negligently failed to protect” him. A month earlier she assigned to Dapo any rights she might have to recover on the apportionment claim in exchange for a complete release from liability for his sexual abuse claims against her.
OCS moved to dismiss Lucas‘s third-party claim on grounds that it was barred by Alaska‘s ten-year statute of repose,
On remand, the superior court held that the statute of repose “applies to and bars the third-party allocation of fault claim against OCS. The statute of repose is also not facially unconstitutional nor unconstitutional as applied to the third-party allocation of fault claim against OCS in this case.” The court
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.3 Summary judgment is appropriate when “no genuine issues of material fact exist and where the moving party is entitled to judgment as a matter of law.”4 When ruling on a summary judgment motion, we view the facts in the light most favorable to the non-moving party.5
We interpret statutes “according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.”6 “A presumption of constitutionality applies, and doubts are resolved in favor of constitutionality.”7
IV. DISCUSSION
Alaska‘s statute of repose,
The parties agree that the statute of repose does not bar Dapo‘s sexual abuse claim against Lucas, both because of the “intentional act” exception and, separately, because
The parties’ dispute centers on whether the statute of repose bars Lucas‘s third-party claim for apportionment against OCS. The superior court held that it did. Dapo, as assignee of that claim, argues that the statute does not apply because of rules of statutory interpretation and the rationale of our decision in Alaska General Alarm, Inc. v. Grinnell, in which we discussed apportionment claims in the context of statutes of limitation.12 Dapo argues in the alternative that if the statute of repose does apply, the apрortionment claim falls within the statute‘s exceptions for claims involving gross negligence and breach of fiduciary duty. Finally, he argues that if the statute of repose otherwise applies, it is unconstitutional as applied because it denies him access to the courts. We discuss each argument in turn.
A. The Statute Of Repose For The Underlying Claim Applies To The Apportionment Claim As Well.
Dapo argues that the statute of repose does not bar apportionment claims because it is specifically limited to actions “for personal injury, death, or property damage,”13
But the legislature has indicated its intent that apportionment claims based on “personal injury, death, or property damage” be subject to the statute of repose.
instruct the jury to answer spеcial interrogatories or, if there is no jury, [to] make findings, indicating . . . the percentage of the total fault that is allocated to each claimant, defendant, third-party defendant, person who has been released from liability, or other person responsible for the damages unless the person was identified as a potentially responsible person, the person is not a person protected from a civil action under
AS 09.10.055 [the statute of repose], and the parties had a sufficient opportunity to join that person in the action but chose not to . . . . [Emphasis added.]
In other words, “a potentially rеsponsible person” should be joined as a party unless “protected from a civil action under” the statute of repose, in which case — the statute assumes — the person cannot be joined. But to ensure that the named parties’ percentages of fault may be accurately determined, fault may be allocated to “a potentially responsible person” who cannot be joined as a party because the person is “protected from a civil action under” the statute of repose — though this does not result in a judgment against the “protected” person.15
The apportionment stаtute thus specifically acknowledges that persons who would otherwise be “responsible for the damages” on an apportionment claim may be persons “protected from a civil action” by the statute of repose. Legislative history confirms that the legislature was aware of the interplay between the statute of repose and apportionment claims. Discussing the 1997 Tort Reform Initiative — which both created the apportionment statute and substantially revised the statute of repose16 — Representative Davies stressed to the House Finance Committee that “the statute of reposе removes certain people from responsibility. . . . [I]f a person is barred from being brought to the table by the statute of repose . . . they cannot be apportioned a portion of the fault.”17 Dapo directs us to no contrary legislative history.
Dapo argues, however, that the statute of repose should not apply to Lucas‘s apportionment claim because of the rationale of Alaska General Alarm, Inc. v. Grinnell.18 In that case, observing that “third-party actions [for apportionment] are traditionally deemed to accrue upon judgment or settlement” of the underlying claim, we held that the statute of limitations governing the underlying claim “should not bar the liability of third-party defendants to the plaintiff for their share of
Alaska General Alarm was cоncerned with the statute of limitations, not the statute of repose, and the differences dictate a different result here. “[A] statute of limitation[s] begins to run when the plaintiff‘s cause of action accrues or is discovered,” whereas the statute of repose “may bar a cause of action before it accrues” because the statute of repose begins to run from “the last act alleged to have caused the personal injury.”22 The statute of limitations, though of fixed duration, is still shaped by a case‘s
circumstances, beginning to run only when a person “discovers, or reasonably should have discovered, thе existence of all elements essential to the cause of action” under the discovery rule.23 The statute of repose, on the other hand, “intends to completely extinguish a defendant‘s liability upon the expiration of a certain, set period of time”24 and is meant to act as “an absolute bar”25 to liability; potential defendants are afforded peace of mind after a set amount of time regardless of whether the prospective plaintiff‘s cause of action has accrued.26
Given the language of the relevant statutes, legislative history, and the recognized differences between statutes of repose and statutes of limitatiоn, we conclude that the statute of repose bars an apportionment claim seeking to apportion fault “for personal injury, death, or property damage” at the same time it would bar the underlying claim. Here, the last act alleged to have caused Dapo‘s personal injury occurred before the police took him into custody on September 7, 2002. Lucas‘s 2015 apportionment claim against OCS is barred by the ten-year statute of repose — unless it falls within one of the statute‘s exceptions, which we address next.
B. Whether Lucas‘s Apportionment Claim Falls Within An Exception To The Statute Of Repose Presents Unresolved Questions Of Fact.
The statute of repose‘s listed exceptions include claims in which the alleged “personal injury, death, or property damage resulted from . . . (B) an intentional act or gross negligence; . . . or (F) breach of trust or fiduciary duty.”27 Dapo argues that both exceptions apply because, taking all facts in the light most favorable to him as the non-moving party,28 his allegations suffice to show that OCS either was grossly negligent or committed a breach of trust or fiduciary duty in causing his injuries from sexual abuse.29
To establish negligence, a party must show “(1) a duty of care; (2) breach of the duty; (3) causation; and (4) harm.”30 “Whether a party has a duty of care and, if so, the nature and scope of that duty are questions of law.”31
That OCS owes at least a duty of reasonable care to a child in its custody does not appear to be disputed; OCS concedes the existence of a “special relationship” in such circumstances. By statute, “a relationship of legal custody exists” between OCS and a child in its custody,
impos[ing] on the department . . . the responsibility of physical care and control of the child, the determination of where and with whom the child shall live, the right and duty to protect, nurture, train, and discipline the child, the duty of providing the child with food, shelter, education, and medical care, and the right and responsibility to make decisions of financial significance concerning the child.32
The statutory responsibility for determining “where and with whom the child shall live” necessarily requires that OCS carry out the responsibility non-negligently. In R.E. v. State we held that because DFYS — OCS‘s predecessor agency — had undertaken to license daycare facilities, it “was under a duty to exercise reasonable care in carrying out that function,” specifically by taking reasonable steps to uncover the possibility of sexual abuse.33 In P.G. v. State, Department of Health & Human Services, Division of Family & Youth Services, we held that “DFYS stands in a special relationshiр 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.”34 This meant that the agency was required “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” into their home a child with possibly dangerous propensities.35 These cases direct our conclusion here: that OCS had a duty to exercise reasonable care when placing Dapo in foster care with the Lucases and approving his adoption.
The “gross negligence” necessary for the statute of repose‘s exception to apply is not merely a failure to exercise reasonable care but a “major departure from the standard of care.”36 “Whether a defendant breached its duty of care is typically a factual question for the jury,”37 as are whether the lack of care amounts to gross negligence38 and whether the breach of duty caused the plaintiff harm.39
The claim against OCS, however, is based on its actions before the adoption, when the existence of a special relationship between OCS and Dapo, as a child in its legal custody, is undisputed. Dapo alleges that “OCS clearly breached [its] duty by dumping [Dapo] in a home where it already knew other foster children had been abused, and it was clearly foreseeable that he would be abused too.” He alleges that when OCS did this it knew Lucas “had forced a child to sit in cold water up to his neck for an hour or longer while his teeth were chattering and he was crying and fighting to get out,” “was hitting or spanking her foster children,” “was intentionally giving them too much medication,” and lacked a clear sense of personal boundaries. Dapo alleges that OCS “clearly understood that Ms. Lucas was not fit to be a foster parent because it removed all the children from her home [in 1999] and stated she needed to get a psychological evaluation to assess whether she was a danger to the safety of children.” Dapo claims that OCS placed him in Lucas‘s home six months later regardless of its knowledge of the risks. If OCS breached its duty to Dapo by placing him in harm‘s way, it does not matter to Dapo‘s cause of action that the resulting harm did not occur until OCS no longer had that duty, assuming he can prove that the breach caused the harm.41
2. The breach of fiduciary duty exception
The statute of repose‘s exception for “breach of trust or fiduciary duty” may also be relevant here. We have never used the word “fiduciary” to describe the State‘s relationship with the children in its care, though a few jurisdictions have.42 But OCS‘s
duties under
We have stated that a fiduciary relationship “exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act
in good faith and with due regard to the interests of the one imposing the confidence.” “Fiduciary relationships are generally defined by a level of trust beyond that in ordinary business relationships,” and “[l]oyalty and the disavowal of self interest are hallmarks of the fiduciary‘s role.”44
We conclude, therefore, that the relationship between OCS and children in its legal custody pursuant to
By deciding that Lucas‘s apportionment claim may fall within these two exceptions to the statute of repose, we do not mean to preclude summary judgment if the superior court determines that “no reasonable person could discern a genuine factual dispute on a material issue.”45 Such a determination is not possible on the record before us.
C. The Statute Of Repose Is Not Unconstitutional As Applied To Lucas‘s Apportionment Claim Against OCS.
Dapo contends that if the statute of repose applies to Lucas‘s apportionment clаim, it unconstitutionally deprives him of access to the courts because it leaves him in the absurd position of having to rely on Lucas and OCS to sue themselves on his behalf. “A party raising a constitutional challenge to a statute bears the burden of demonstrating the constitutional violation.”46 “An as-applied [constitutional] challenge requires evaluation of the facts of the particular case in which the challenge arises.”47 “The right of access to the courts is an important interest requiring enhanced scrutiny; however, that right is impaired only by state action that actually limits or blocks access to the courts.”48 “The United States Supreme Court has called it ‘an uncontroversial principle of constitutional adjudication . . . that a plaintiff generally cannot prevail on an as-applied challenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to [him or her].‘”49
We applied this principle in Reasner v. State, Department of Health & Social Services, Office of Children‘s Services, holding that the superior court should refrain from deciding an as-applied constitutional challenge until the plaintiff was able to show the law‘s unconstitutional application to her.50 Because there were questions about when Reasner‘s claims arose and whether they were subject to various exceptions tо the statute of repose, including those for “gross negligence, misrepresentation, or breach of fiduciary duty,” we remanded to the superior court to “determine whether the statute of repose applies to Reasner‘s case before it considers Reasner‘s as-applied constitutional challenge.”51 In Dapo‘s case, however, we decide the as-applied challenge despite the possibility that the superior court, on remand, will moot the issue by concluding that the statute does not apply because of one or more exceptions. The undisputed facts give us a sufficiеnt basis for deciding the constitutional issue while it is before us on this appeal.
Dapo appears to address his delay in filing suit as an adult when he argues that sexually abused children “may take years to understand that the emotional difficulties and other dysfunction [they are] suffering are caused by sexual abuse” and that courts “cannot presume that a sexually-abused child has sufficient information about OCS‘s role in the matter to trigger the running of the statute of limitations against OCS.” But we addressed this discovery-rule-based challenge to the statute of repose in Evans ex rel. Kutch v. State, in which the plurality opinion observed that “[t]he discovery rule is a common law rule created by this court, and is not based on any constitutional principles,” meaning that “the legislature is free to modify or abolish” it.53 “Therefore, to the extent that
We conclude that the statute of repose is not unconstitutional as applied to Lucas‘s apportionment claim against OCS.
D. Sovereign Immunity
The State briefly addresses a statutory immunity defense as an alternative ground for affirming summary judgment in its favor.55 The State cites
We construe the State‘s immunity under
Federal decisions interpreting the Federal Tort Claims Act57 “are persuasive authority in construing”
In Bembenista v. United States,60 which we have cited favorably several times,61 the Court of Appeals for the D.C. Circuit decided that a government-operated military hospital owed a “duty of protective care” arising “out of its special relationship with” its patients, and it was not immune from liability if it breached this duty by failing to protect patients from staff member abuse.62 We have reached similar conclusions in similar cases. In B.R. v. State, Department of Corrections, we held that the State “stands in a special relationship with inmates . . . [which] gives rise to a special protective duty”63 and that Alaska‘s “intentional tort immunity statute did not preclude claims against the State . . . [based on] a breach оf the State‘s independent protective duty to prevent assault.”64 In Mattox v. State, Department of Corrections, we held that the State “owes a duty to inmates to exercise reasonable care for the protection of their lives and health.”65 This duty even extended to harm caused by assault from other inmates so long as the harm was “reasonably foreseeable“; we noted that “evidence of an immediate threat of harm” at the summary judgment stage “would certainly help to raise a genuine issue of fact as to foreseeability.”66
Here, OCS stood in a “special relationship” with Dapo, a “child[] in need of aid who c[a]me under its supervision.”67 OCS was therеfore required to “exercise due care [through reasonable efforts] to minimize potential harm” to Dapo.68 If the State breached its independent duty to Dapo, statutory immunity does not protect it even if Dapo‘s harm resulted from a third-party assault.
V. CONCLUSION
We REVERSE the superior court‘s order dismissing the third-party apportionment claim against OCS and REMAND to the superior court for further proceedings consistent with this opinion.
MAASSEN
Justice