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Reasner v. State, Department of Health & Social Services

Supreme Court of Alaska

May 19, 2017

LISA REASNER, Appellant/Cross-Appellee,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee/Cross-Appellant, and ROLIN N. ALLISON JR. Appellee.

         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 ...


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