Appeal
from the Superior Court of the State of No. 4FA-12-02812 CI
Alaska, Fourth Judicial District, Fairbanks, Bethany
Harbison, Judge.
Susan
Orlansky, Reeves Amodio, LLC, Anchorage, and Michael C.
Kramer and Reilly Cosgrove, Kramer and Associates, Fairbanks,
for Appellant/Cross-Appellee.
Ruth
Botstein, Assistant Attorney General, Anchorage, and Craig W.
Richards, Attorney General, Juneau, for
Appellee/Cross-Appellant State of Alaska, Department of
Health & Social Services, Office of Children's
Services. No appearance by Appellee Rolin N. Allison, Jr.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, Justice.
I.
INTRODUCTION
Lisa
Reasner suffered years of sexual abuse while in foster care
and after the Office of Children's Services
(OCS)[1] approved her adoption. Years later Reasner
sued OCS after discovering that OCS might have played a role
in allowing her abuse. The superior court concluded that
Reasner's claims were untimely and granted summary
judgment in favor of OCS. The superior court also concluded
that even if Reasner's claims had been timely, OCS would
still be entitled to partial summary judgment on various
other grounds, including that OCS was partially protected by
discretionary function immunity and that Reasner failed to
establish that her foster parents had not completed the
proper training. For the reasons explained below, we vacate
the superior court's grant of summary judgment and remand
for further proceedings.
II.
FACTS AND PROCEEDINGS[2]
Reasner
was born in 1989. OCS assumed custody of her in 1993 after
ongoing reports of child neglect. In January 1994 OCS placed
Reasner in a foster care home with Rolin Allison Sr. and Myna
Allison.
In July
1998 OCS received a report alleging that one of the
Allisons' sons had sexually molested a neighbor's
granddaughter. During the ensuing investigation Reasner
revealed that Rolin Allison Jr. (J.R.), a different son, had
sexually abused her "a long time ago." At the time
of the investigation, however, J.R. was not living with the
Allisons, and Reasner was allowed to remain in the Allison
home. The Allisons adopted Reasner in April 1999. OCS
received reports that J.R. was abusing Reasner after the
adoption but OCS did not take steps to remove Reasner from
the home.
In
November 2011 J.R. was arrested for sexually abusing Reasner
and other children. (J.R. eventually pleaded guilty to five
counts of felony sexual abuse of a minor.) Reasner attended
his arraignment and spoke with her former OCS caseworker. The
caseworker told Reasner that OCS had known that J.R. was
dangerous and had ordered Myna Allison to keep him away from
the home. According to Reasner this was the first time she
learned that OCS may have failed to protect her from J.R.
Reasner
sued OCS on December 3, 2012. Relevant to this appeal,
Reasner alleged that (1) OCS had negligently investigated
reports of harm occurring while OCS had legal custody of
Reasner; (2) OCS had negligently supervised/monitored the
Allison home; and (3) OCS had negligently failed to
investigate reports of harm after Reasner was adopted.
The
superior court granted OCS summary judgment on all of
Reasner's claims, [3] concluding that they were untimely under
Alaska's two-year statute of limitations for tort
suits.[4] The superior court also determined that
even if Reasner's claims had been timely, OCS would still
be entitled to partial summary judgment on Reasner's
claims because she failed to establish a genuine issue of
material fact as to whether the Allisons had completed
certain training requirements and because OCS was partially
protected by discretionary function immunity. The superior
court, however, rejected OCS's argument that Alaska's
statute of repose also barred Reasner's claim concluding
that the statute was unconstitutional as applied to Reasner,
and the superior court also rejected OCS's argument that
Reasner had failed to establish a causal link between
OCS's alleged negligence and her harm.
Reasner
appeals and OCS cross-appeals.
III.
DISCUSSION
The
parties appeal a grant of summary judgment. When ruling on a
summary judgment motion, a court must construe all reasonable
factual inferences in favor of the non-moving
party.[5] "[S]ummary judgment is appropriate
only when no reasonable person could discern a genuine
factual dispute on a material issue."[6] As we have
consistently explained, "ours is a 'lenient standard
for withstanding summary judgment.' "[7] "Any
admissible evidence in favor of the nonmoving party
concerning a material fact is sufficient.. .
."[8] We review questions of summary judgment de
novo.[9]
We
divide our discussion into two categories: (1) whether the
superior court erred in granting OCS summary judgment because
Reasner's claims were untimely and (2) whether
Reasner's claims otherwise withstand summary judgment.
A.
Whether Reasner's Claims Were Untimely
1. It
was error to grant summary judgment to OCS under AS 09.10.070
because a genuine issue of material fact exists as to when
Reasner's claims accrued.
Alaska
Statute 09.10.070 requires that tort claims be brought
"within two years of [their]
accrual."[10] A different statute, AS 09.10.140(a),
tolls the limitations period for minors until they reach the
age of 18. The superior court found that all of Reasner's
claims were untimely because she filed suit more than two
years after her eighteenth birthday. Reasner argues that this
was error because a genuine issue of material fact exists
concerning when her claims "accru[ed]" as that term
is used in AS 09.10.070 and that, at the very least, an
evidentiary hearing was required to resolve this dispute. We
agree with Reasner.
In
Alaska the statute of limitations begins to run on the date
"when a reasonable person has enough information to
alert that person that he or she has a potential cause of
action or should begin an inquiry to protect his or her
rights."[11] The test for inquiry notice focuses on
when a plaintiff has sufficient information to prompt an
inquiry, not on when she has specific information
establishing each element of her cause of
action.[12] Determining that date requires a
"fact-intensive" analysis.[13] We have therefore
cautioned that summary judgment should only be used to
resolve the time at which a statute of limitations commences
when "there exist uncontroverted facts that determine
when a reasonable person should have" begun an inquiry
to protect her rights.[14]
In
order to succeed in her suit against OCS, Reasner must prove
that OCS acted negligently.[15] Reasner argues that a
reasonable person in her circumstances would not have begun
an inquiry until she discovered that OCS may have played some
role in allowing her to be abused.[16] The superior court
appeared to accept this reasoning, but found that by the time
Reasner turned 18, she did, in fact, have information
suggesting that OCS may have played a role in allowing her to
be abused. Specifically, the superior court found that when
Reasner turned 18 she essentially knew what her social worker
later told her - "that OCS knew that J.R. was dangerous
and had told Myna Allison that he was forbidden to be around
the home." In reaching this conclusion the superior
court relied on two events: (1) that Reasner reported her
abuse to OCS but OCS allowed her to remain in the Allison
home and (2) that Reasner told a counselor in 2007 that she
had reviewed her OCS and adoption records.
Summary
judgment, however, "is appropriate only when no
reasonable person could discern a genuine factual dispute on
a material issue."[17] We conclude that a genuine factual
dispute exists concerning when Reasner discovered information
suggesting that OCS had played a role in allowing her to be
abused. First, we note that when ruling on a summary judgment
motion, a court must construe all reasonable factual
inferences in favor of the non-moving party.[18] Applying that
standard, the events relied upon by the superior court do not
justify the superior court's ultimate conclusion that
Reasner had information suggesting OCS's role in her
abuse as early as 2007. The fact that Reasner reported her
abuse to OCS while in OCS custody only establishes that
Reasner knew a report about J.R. had been made to OCS. It
does not establish, at least for the sake of summary
judgment, that Reasner knew that OCS previously had known
J.R. was dangerous or that Reasner knew that OCS previously
had told Myna that J.R. was not allowed to be around the
home. The 2007 counselor's report is similarly unhelpful.
It stated only that "[a]t the age of 18 she looked up
her OCS records and adoption records. She feels like her
adoptive parents lied to her for 14 years." The
counselor's report did not contain any details as to what
documents Reasner actually reviewed or whether she understood
their contents. In a second affidavit accompanying her motion
to reconsider, Reasner stated that she had only reviewed some
adoption records in her mother's closet, not her OCS
records. Indeed, as Reasner points out on appeal, OCS was not
permitted to disclose her records under 7 Alaska
Administrative Code (AAC) 54.050(1).
More
importantly, the conclusion reached by the superior court was
directly contradicted by Reasner's own sworn affidavit.
In that affidavit Reasner asserted "the first time that
[she] had information that OCS was negligent in failing to
protect [her] from [J.R.]" was on November 9, 2011,
because that was the date her former OCS caseworker told her
that "OCS knew that [J.R.] was dangerous, and [that OCS]
had told Myna Allison that he was forbidden to be around the
home or any of the foster children." As we have stated,
"[a]ny admissible evidence in favor of the nonmoving
party concerning a material fact is sufficient" to
withstand summary judgment.[19] Reasner's sworn affidavit
constitutes admissible evidence and is relevant to
determining when Reasner discovered sufficient information
"to alert a reasonable person to begin an inquiry to
protect [her] rights."[20] Rather than resolving this
issue at the summary judgment stage, the superior court
should have held an evidentiary hearing to resolve the
preliminary question of fact concerning when the statute of
limitations on Reasner's claims began to
run.[21]
OCS
also asks us to affirm the superior court's ruling on a
different basis: that "Reasner's knowledge that she
suffered sexual molestation while in OCS custody triggered
the duty to investigate OCS."[22] In other words, OCS asks
us to hold that, as a matter of law, a child who suffers
sexual abuse while in OCS custody is aware or should be aware
that OCS may have played a role in allowing the child to be
abused.
We
implicitly rejected a similar argument in Catholic Bishop
of Northern Alaska v. Does 1-6.[23] In that case the
plaintiffs sued two institutional defendants, the Catholic
Bishop of Northern Alaska and the Society of Jesus, Oregon
Province, alleging sexual abuse by a priest many decades
earlier.[24] We allowed their case to proceed past
the motion to dismiss stage, noting that "[u]nder the
discovery rule, the date on which the statute of limitations
begins to run is a question of fact" and that we could
not "rule out the possibility that evidence may be
introduced that will show that the statute of limitations has
not run."[25] We therefore implicitly concluded that a
child who has been sexually abused does not, as a matter of
law, have sufficient information to prompt a reasonable
person to inquire into potential claims against institutional
defendants.[26]
Applying
that conclusion here, we decline to affirm the superior court
on OCS's proposed alternative basis, and we therefore
reverse the superior court's grant of summary
judgment.[27]
2.
Alaska Statute 09.10.065(a) does not apply to Reasner's
claims.
Reasner
argues that even if her claims are untimely under AS
09.10.070, they are timely as a matter of law under a
different statute, AS 09.10.065(a). We disagree.
Alaska
Statute 09.10.065(a) allows a person to bring a suit "at
any time for conduct that would have, at the time
the conduct occurred, violated provisions of any of five
listed felony offenses, including felony sexual abuse of a
minor.[28] The question we must resolve is whether
Reasner's suit against OCS is "for conduct"
that amounted to felony sexual abuse of a minor.
We
review a superior court's interpretation of a statute de
novo.[29] We interpret the statute "according
to reason, practicality, and common sense, considering the
meaning of the statute's language, its legislative
history, and its purpose."[30] We apply "a sliding
scale approach, where ' [t]he plainer the statutory
language is, the more convincing the evidence of contrary
legislative purpose or intent must be.'
"[31]
We
conclude that Reasner's suit against OCS is not subject
to the extended limitations period provided in AS
09.10.065(a). First, Reasner's suit falls outside the
plain language of AS 09.10.065(a). Reasner argues that her
suit against OCS is "for conduct" that amounted to
"felony sexual abuse of a minor" and that she is
therefore permitted under AS 09.10.065(a) to bring that suit
"at any time." But Reasner, of course, is not
alleging that OCS committed felony sexual abuse of a minor;
rather, she argues that J.R. committed the underlying crime
and that OCS was negligent in failing to protect her from his
conduct. Reasner's suit against OCS can thus
only be characterized as "for" the negligent
conduct of OCS - conduct which Reasner admits did not
constitute felony sexual abuse of a minor.[32] Therefore
Reasner's negligence suit against OCS is not "for
conduct" constituting felony sexual abuse of a minor,
and we conclude that her suit falls outside the plain
language of AS 09.10.065(a).
Because
Reasner asks us to interpret AS 09.10.065(a) in a manner
inconsistent with the plain language of the statute, we will
adopt her proposed construction only if we can find
convincing evidence of contrary legislative purpose or intent
to include suits like Reasner's - i.e., negligence suits
against non-perpetrators - within the scope of AS
09.10.065(a). Reasner points to a change in the statutory
language from "against the perpetrator" to
"for conduct. . . violat[ing]" as indicating an
intent to include negligence suits against non-perpetrators
within the scope of AS 09.10.065(a).[33]According to Reasner this
change indicates a legislative intent to permit "suits
against third parties who are legally responsible for
allowing [sexual] abuse to occur." But as we have stated
before, "the absence of greater discussion is a
meaningful indication that the [legislature] was not
charting a radical course, "[34] and nothing in the
legislative history suggests that by making this change the
legislature intended to broaden the application of the
statute to include negligence suits.[35] Reasner also points to
legislative committee minutes expressing a general policy of
expanding victims' access to courts.[36] But such
general statements do not indicate an intent to cover claims
that are not "for conduct. .. violat[ing]" any of
the listed felony offenses.
Finally,
we find that our approach is consistent with the approach
taken by courts in other jurisdictions interpreting similar
statutes.[37] We therefore conclude that AS
09.10.065(a) does not apply to Reasner's action against
OCS.
3. The
superior court should first determine whether AS 09.10.055
applies to Reasner's claims before reaching ...