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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGrew v. State, Dept. of Health & Social Services, DFYS (02/04/2005) sp-5866

McGrew v. State, Dept. of Health & Social Services, DFYS (02/04/2005) sp-5866

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


JOHNNY McGREW and MARY   )
McGREW,                       )    Supreme Court No. S-10699
                              )
             Appellants,      )    Superior Court No. 3AN-01-9334
CI
                              )
     v.                       )    O P I N I O N
                              )
STATE OF ALASKA, DEPART- )    [No. 5866 - February 4, 2005]
MENT OF HEALTH AND SOCIAL     )
SERVICES, DIVISION OF FAMILY  )
AND YOUTH SERVICES,           )
                              )
             Appellee.             )
                              )
                              


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  James Alan Wendt,  Law  Offices
          of   James   Alan   Wendt,   Anchorage,   for
          Appellants.   Gail T. Voigtlander,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

          Before:     Eastaugh,  Fabe,  and  Carpeneti,
          Justices.    [Bryner,  Chief   Justice,   and
          Matthews, Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION

          Grandparents  of an orphaned child sued  the  State  of

Alaska,   claiming  that  it  prevented  them   from   adequately

litigating  their  interests in child-in-need-of-aid  (CINA)  and

adoption  proceedings relating to their grandchild.  We  consider

here  whether it was error to grant the states Alaska Civil  Rule

12(b)(6)   motion   to  dismiss  their  claims   of   negligence,

intentional   infliction  of  emotional  distress   (IIED),   and

violation  of constitutional rights.  We affirm the dismissal  of

their negligence claim, because the state owed them no actionable

duty.   We  also  affirm  the dismissal of  their  constitutional

claim,   because   they   had  alternative  litigation   remedies

available.   But  because their complaint adequately  pleaded  an

IIED  claim, we reverse the Rule 12(b)(6) dismissal of that claim

and remand.

II.  FACTS AND PROCEEDINGS

          The Alaska Division of Family and Youth Services (DFYS)

took   emergency  custody  of  Johnny  and  Mary  McGrews  infant

granddaughter, Lucy M.,1 after the sudden deaths of  the  infants

parents and twin sibling in July 1999.  According to the McGrews,

Lucys  father  shot and killed Lucys mother, and  then  shot  and

killed himself.  Lucys twin sister died when Lucys mother fell on

the  infant  and  smothered her.  DFYS filed a  petition  for  an

adjudication  that  Lucy was a child in  need  of  aid  under  AS

47.10.011.  The superior court granted DFYSs petition and  placed

Lucy  with Elsa C., who had been a friend of  Lucys mother and  a

babysitter for Lucy and her twin sister.  In September  1999  the

McGrews filed a motion to intervene in the CINA proceedings.   In

November  1999  Elsa and her husband, Dillon C.,  also  moved  to

intervene  in  the CINA proceedings.  The superior court  granted

both  intervention  motions.   After  conducting  a  hearing   in

February  2000,  the  superior court  released  Lucy  from  DFYSs

custody  and continued Lucys pre-adoptive placement with  the  C.

family.

          In  August  2001 Johnny and Mary McGrew  filed  a  tort

complaint  against   the Alaska Department of Health  and  Social

Services, Division of Family and Youth Services.  We refer to the

defendants as the state or DFYS.  The complaint alleged that Mary

McGrew  had  notified  DFYS that she was a licensed  foster  care

provider  and that she and her husband, and other family members,

were willing to take custody of Lucy.  The complaint alleged that

DFYS  refused  to provide the McGrews with any information  about

their  granddaughters  placement, and that any  information  DFYS

provided was false and misleading.

          The  complaint alleged that even though DFYS  had  been

advised that the McGrews were interested in obtaining custody  of

Lucy, DFYS appeared ex parte at Lucys CINA hearing and failed  to

inform  the  court  of the McGrews interest in caring  for  their

granddaughter.   The complaint also alleged that DFYS  failed  to

notify  the court that one of the adults with whom Lucy had  been

placed, Dillon C., had a criminal history.  The complaint alleged

that  in  placing  Lucy,  DFYS  failed  to  abide  by  applicable

statutes, rules, and its own policies and procedures.

          The  McGrews complaint asserted three claims.  Count  I

asserted a negligence claim for DFYSs alleged failure to abide by

its  own  policies  in placing Lucy. Count II asserted  a  Bivens

action2 for alleged failures to abide by the Alaska Constitution,

applicable Alaska Statutes, the Alaska Administrative  Code,  and

DFYSs internal policies.  Count III asserted an IIED claim.   The

complaint  sought  compensatory damages, pre-  and  post-judgment

interest, costs, and attorneys fees.

          The  state  moved under Alaska Civil Rule  12(b)(6)  to

dismiss  the entire action, arguing that the complaint failed  to

state legally cognizable claims.

          The McGrews opposed the motion to dismiss, arguing that

DFYS  owed them an actionable duty and that no alternate remedies

were available for purposes of the Bivens action.  They asked for

leave  to amend their complaint under Alaska Civil Rule 15(a)  if

          the court found the states arguments persuasive.

          The  McGrews  also  moved  in  the  superior  court  to

supplement  the  record.  The  order  denying  their  motion   to

supplement stated that the issue of duty raised by the motion [to

dismiss] is a legal issue, not a fact based inquiry . . .  .   As

there is no need to consider factual issues, there is no need  to

allow [supplementation] of the record.

          After hearing oral argument, the superior court granted

the  states  motion  to dismiss the IIED and  negligence  claims,

ruling  that the state only owed a duty to the child in  need  of

aid,  and  did  not owe a duty to the childs relatives,  such  as

parents  and grandparents.  The court also declined  to  allow  a

Bivens remedy in this case.

          The  McGrews  moved  for reconsideration  under  Alaska

Civil  Rule  77(k).  The superior court denied  this  motion  and

entered  final  judgment for the state.  The McGrews  appeal  the

dismissal  of their complaint and the denial of their  motion  to

supplement the record.

          The   McGrews  were  also  parties  to  another  appeal

challenging  the  superior  courts dismissal  of  their  adoption

petition and the award of custody of Lucy to Elsa and Dillon  C.3

In  In  re Adoption of L.E.K.M., decided after the superior court

dismissed  the tort claims in the present case, we  affirmed  the

superior courts placement of Lucy with the C. family.4

III. DISCUSSION

     A.   Standard of Review

          Alaska  Civil Rule 12(b)(6) allows the dismissal  of  a

complaint for failure to state a claim upon which relief  can  be

granted.   We review the superior courts  Rule 12(b)(6) dismissal

of  the  McGrews  complaint de novo,5 deeming all  facts  in  the

complaint true and provable.6   To survive a motion to dismiss, a

complaint  need  only allege a set of facts consistent  with  and

appropriate  to some enforceable cause of action.7   A  complaint

should  not be dismissed for failure to state a claim  unless  it

          appears beyond a doubt that the plaintiff can prove no set of

facts  in  support of the claims that would entitle the plaintiff

to relief.8

     B.   The Negligence Claim

          The McGrews argue that because they were parties in the

CINA  proceeding, DFYS owed them a duty of care once it made  the

decision to seek and obtain temporary emergency custody of  Lucy.

They   therefore  argue  that  it  was  error  to  dismiss  their

negligence claim.

          In deciding whether a defendant owes a plaintiff a duty

of  reasonable care, we first determine whether a duty is imposed

by   statute,  regulation,  contract,  undertaking,  the  parties

preexisting  relationship,  or  existing  case  law.9   If  these

sources  do  not  resolve  the issue, we apply  the  multi-factor

approach  discussed  in D.S.W. v. Fairbanks  North  Star  Borough

School District10 to determine whether an actionable duty of care

exists.11

          The McGrews argue that an actionable duty is imposed by

AS  47.14.240,  which specifies the responsibilities of the local

review  boards  which  review  DFYSs  placement  decisions.    It

requires  a  review  board  to  allow  the  childs  relatives  to

participate.12   But another statute, AS 47.10.960,  states  that

[n]othing  in this title creates a duty or standard of  care  for

services  to  children and their families being served  under  AS

47.10.   Lucy  was a child being served under AS 47.10.   Section

.960  therefore precludes the McGrews from contending in  a  tort

suit that AS 47.14.240 can be the basis of an actionable duty.

          The McGrews also assert that other statutes are sources

of  an  actionable  duty: AS 47.10.142(a),  (e),  and  (h);13  AS

47.10.020(a);14 AS 47.10.080(l) and (l)(2)(B);15 and AS 47.05.060.16

Any  claim  based  on  these statutes is likewise  barred  by  AS

47.10.960.

          In  Karen  L. v. State, Department of Health  &  Social

Services,  Division  of  Family & Youth Services,  we  considered

          whether a mother could assert tort claims arising from CINA

proceedings  addressing placement of a child in  DFYS  custody.17

The  superior court there granted summary judgment to the  state,

DFYS,  state social workers, and the childs guardians  ad  litem,

dismissing  all  of the mothers claims, including her  negligence

claims.18  We held that the state and the social workers did  not

owe the mother an actionable duty of care.19  The mother therefore

could  not  maintain negligence claims against the state  or  its

agencies and employees.

          We recognize here, as we did in Karen L., that it is to

be  expected that any litigation, and certainly a CINA proceeding

in which the child is taken from its [relatives] . . . will cause

the  [relatives]  some distress.  That does  not  mean  that  the

distress should be actionable.20  Karen L. establishes that  DFYS

does not owe a parent an actionable duty of reasonable care in  a

CINA proceeding.21  Karen L. therefore precludes the grandparents

negligence claim in this case.

          The  McGrews  attempt to distinguish Karen  L.  on  the

theory  there  was no claim in that case that the state  had  bad

motives.   They  assert  that DFYS here  engaged  in  intentional

deceit  and  affirmatively misled them by making false statements

about  its  placement  plan for the child.  That  distinction  is

potentially  pertinent  only  to  the  McGrews  claims   alleging

intentional  misconduct.   As to the  McGrews  negligence  claim,

Karen L. controls.

          The   McGrews   also   argue   that   their   case   is

distinguishable from Karen L. because DFYS failed to comply  with

the  statutory requirements of AS 47.14.240, denying  them  their

right  to  be  meaningfully  heard in  a  timely  fashion.   They

therefore argue that Karen L. does not apply to them because  the

court  there  held  that  there was no statute  that  imposed  an

actionable tort duty.

          But as we saw above, AS 47.10.960 establishes that DFYS

owes  the McGrews no actionable duty arising out of any provision

          in Title 47.  Therefore, Karen L. cannot be distinguished on a

theory  the  McGrews were owed a statutory duty not addressed  in

Karen L.

     C.   The Bivens-type Claim

          A  Bivens  claim  is  the  cause  of  action  sometimes

permitted in federal courts for a governmental violation  of  the

plaintiffs constitutional rights.22  We have never decided whether

a  Bivens-like remedy is available for violations of  the  Alaska

Constitution.23  In Brown v. Ely we noted that federal courts have

not  permitted  the  Bivens  remedy if alternative  remedies  are

available.24    The  McGrews  opportunities  to  participate   as

intervenors  in  the CINA proceeding and to oppose  the  adoption

decree  gave  them adequate alternative avenues to challenge  the

litigation conduct of the governmental agency, DFYS.  The alleged

misconduct occurred during existing judicial proceedings,  during

which  the  McGrews  had opportunities to  seek  prompt  judicial

relief  that  might  have  avoided  or  remedied  any  harm  they

allegedly suffered.  The availability of judicial remedies in the

very  proceedings  in which the misconduct allegedly  took  place

distinguishes the McGrews case from federal cases in which  grave

governmental misconduct has immediate consequences that cannot be

readily  avoided or corrected in existing judicial proceedings.25

We  see no reason why the McGrews should have an additional means

of    challenging,   through   a   tort   suit,    the    alleged

unconstitutionality of that conduct.

          Furthermore,  the  McGrews  Bivens  claims   inherently

allege misconduct by persons acting for the government.  At least

in  context of this case, the theoretical availability of an IIED

claim would be an alternative remedy that obviates any need for a

Bivens  claim.   We  therefore do not need to  approve  a  Bivens

remedy here.

     D.   The Intentional Infliction of Emotional Distress Claim

          The  McGrews  contend that Karen L.  does  not  require

dismissal  of   their  claim  that DFYS  engaged  in  intentional

          misconduct.  They argue that their allegations of intentional

wrongdoing  and deceit distinguish Karen L.26  The  state  simply

responds that Karen L. bars the McGrews claims for negligence and

emotional distress.

          To  plead  a  claim for IIED, a plaintiff  must  allege

these  necessary  elements:   (1)  the  conduct  is  extreme  and

outrageous, (2) the conduct is intentional or reckless,  (3)  the

conduct  causes  emotional distress,  and  (4)  the  distress  is

severe.27   The McGrews complaint alleged that DFYSs conduct  was

extreme,   outrageous  and  atrocious;  that  its   conduct   was

intentional  and/or reckless; that its conduct  caused  emotional

distress  to the McGrews; and that their distress was severe  and

that  they suffered personal injury, personal humiliation, mental

anguish,   pain   and   suffering.   Their  complaint   therefore

adequately pleaded all necessary elements of an IIED claim.

          IIED claims require the trial court to make a threshold

determination whether the severity of the emotional distress  and

the  conduct of the offending party warrant a claim.28  We review

this threshold determination for abuse of discretion,29 but there

was  no  threshold determination in this case about  whether  the

states alleged conduct was sufficiently outrageous or whether the

McGrews alleged emotional distress was sufficiently severe for an

IIED  claim.   Instead, the Rule 12(b)(6) dismissal of  the  IIED

claim  seems  to have been based on a conclusion that  Karen  L.s

discussion  of duty also controls IIED claims against  DFYS.   We

review  that conclusion de novo because it presents an  issue  of

law.30

          In  Karen L. we considered the narrow question  whether

the  state  defendants owed Karen a duty of care to  protect  her

from emotional distress with respect to the CINA proceeding.31  We

have usually discussed the element of duty of care in context  of

negligence claims, not intentional tort claims.  For example,  in

Chizmar  v. Mackie, we stated that a plaintiffs right to  recover

emotional damages caused by mere negligence should be limited  to

          those cases where the defendant owes the plaintiff a preexisting

duty.32  We noted in Hawks v. State, Department of Public  Safety

that  the  first step in determining whether a negligence  action

can  be maintained is determining whether the defendant owed  the

plaintiff a duty of care.33  Our discussion in Karen L. of a duty

of  care  and  the  D.S.W. factors pertained only  to  Karen  L.s

negligence  claims  against  the  state  and  its  agencies   and

employees.34   That discussion does not control the McGrews  IIED

claims here.

          We  discussed  separately in Karen L. the mothers  IIED

claims  against  the  state defendants.  The superior  court  had

dismissed  the  mothers  IIED claims on summary  judgment.35   We

affirmed, holding that Karen did not make the necessary threshold

showing on the conduct element for an IIED claim, and the  record

requires  the  conclusion that the conduct of the  social  worker

defendants was neither outrageous nor extreme.36  But the McGrews

IIED  claim was dismissed on the pleadings, not summary judgment,

and as we noted above, the McGrews complaint sufficiently pleaded

an IIED claim.  The superior court here consequently never had to

decide whether their case met the thresholds for an IIED claim.

          Moreover,  we discussed duty in Karen L. and D.S.W.  in

context of claims in which the existence of an actionable duty of

care   was   legally  and  factually  problematic.    The   legal

determination  whether there is an actionable duty  of  care  has

little if any conceptual relevance to an IIED claim.  The concept

of a duty of care is usually identified with negligence claims,37

and  has  no  obvious  bearing  on a  claim  of  intentional  and

outrageous conduct; the intentionality of the outrageous  conduct

needed  for  an  IIED  claim presupposes at least  some  intended

relationship between the actor and the person harmed.  The D.S.W.

factors  are typically applied to determine whether there  is  an

actionable  duty  of care when there is no existing  or  intended

relationship between the actor and the person harmed.38

          We  conclude that the D.S.W. multi-factor duty analysis

          we applied in Karen L. does not apply to intentional tort claims.

          Karen  L.s duty discussion therefore does not  preclude

the  McGrews IIED claim.  Because that claim was dismissed on the

pleadings  under  Rule  12(b)(6), there  was  no  opportunity  to

consider   whether   plaintiffs  evidence  could   surmount   the

thresholds  for  the severity of any emotional distress  and  the

outrageousness  of  the actors conduct.39   We  therefore  cannot

affirm  the  dismissal  of this claim on a  possible  alternative

theory  that the McGrews did not or cannot overcome the threshold

for  an  IIED  claim.  We consequently reverse the  dismissal  of

their IIED claim.

     E.   Other Issues

          The  parties briefs do not discuss whether our decision

in  the  adoption case, L.E.K.M., has any effect on  the  McGrews

tort claims.40  We leave it to the parties to raise on remand any

question  about what effect L.E.K.M. may have on the IIED  claim,

particularly with respect to the issues of liability,  causation,

and damages.

          Our  rulings on the negligence and IIED claims and  the

Bivens-type  remedy make it unnecessary to consider  the  McGrews

argument  that  the  superior court erred when  it  denied  their

motion  to  supplement  the record.  Their negligence  claim  and

Bivens action are precluded as a matter of law and were therefore

properly  dismissed  on  the  pleadings.   No  factual  disputes,

however  genuine, would be material to those claims.  And because

we  reverse the dismissal of the IIED claim, the McGrews are free

on remand to offer evidence relevant to that claim.

          The  McGrews  assert that the state is not immune  from

suit  under the Alaska Tort Claims Act, AS 09.50.250.  The  state

does  not  address the issue of statutory immunity.   As  to  the

negligence  claim and the Bivens-remedy claim, no  discussion  of

immunity is needed here.  And because the parties have altogether

failed   to   explain  what  effect  AS  09.50.250,  particularly

subsection  .250(3), might have on the IIED claim, we decline  to

consider whether the state is immune from the IIED claim  pleaded

here.41

IV.  CONCLUSION

          We  AFFIRM the dismissal of the McGrews negligence  and

constitutional  violation claims.  We REVERSE  the  dismissal  of

their IIED claim and REMAND for further proceedings.

_______________________________
     1     Pseudonyms have been used for all persons  other  than
the appellants.

     2     Bivens  v. Six Unknown Named Agents of Fed. Bureau  of
Narcotics, 403 U.S. 388 (1971).

     3     See  In re Adoption of L.E.K.M., 70 P.3d 1097  (Alaska
2003).   That case concerned the private adoption of  Lucy  after
the CINA proceedings ended.  Id. at 1100.

     4    Id. at 1099.

     5     Valdez  Fisheries Dev. Assn, Inc. v. Alyeska  Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

     6     Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d  250,  253
(Alaska 2000).

     7    Id. (internal quotation marks omitted).

     8    Angnabooguk v. State, 26 P.3d 447, 451 (Alaska 2001).

     9     In  Karen L. v. State, Department of Health  &  Social
Services,  Division  of  Family  &  Youth  Services  we   stated:
[T]ypical  theoretical sources of actionable duties are statutes,
regulations,   certain   contracts,  express   undertakings,   or
fiduciary  relationships.  . . . If one  of  those  duty  sources
applied,  it  would not be necessary to consider the  D.S.W.  [v.
Fairbanks North Star Borough School District] factors.  953  P.2d
871,  875  n.9  (Alaska 1998) (internal citations omitted).   See
also Wongittilin v. State, 36 P.3d 678, 681 (Alaska 2001); Waskey
v.  Municipality of Anchorage, 909 P.2d 342, 343-44 (Alaska 1996)
(finding it unnecessary to resort to the D.S.W. approach where we
had  decided other cases more closely related to the subject duty
dispute);  Estate of Day v. Willis, 897 P.2d 78, 81  n.7  (Alaska
1995)  (holding internal administrative and training  manual  did
not impose duty of care toward fleeing suspects).

     10     D.S.W.  v. Fairbanks N. Star Borough Sch. Dist.,  628
P.2d 554, 555 (Alaska 1981).

     11     Wongittilin,  36  P.3d at 681.   The  D.S.W.  factors
include  foreseeability  of harm; degree of  certainty  plaintiff
suffered  injury;  closeness  of  connection  between  defendants
conduct  and injury; moral blame attached to defendants  conduct;
policy  of  preventing future harm; extent of burden to defendant
and  availability; cost and prevalence of insurance for the  risk
involved.  D.S.W., 628 P.2d at 555.

     12    AS 47.14.240(d)(2).

     13     AS  47.10.142(a) allows the Department of Health  and
Social  Services to take emergency custody of a child in  certain
circumstances.  Subsection .142(e) provides that when a temporary
custody  hearing  is held, a court shall then  determine  whether
probable  cause exists for believing the child to be a  child  in
need of aid.  Subsection .142(h) provides that [w]ithin 12 months
after  a child is committed to the department under this section,
the court shall review the placement plan and actual placement of
the child under AS 47.10.080(l).

     14    AS 47.10.020(a) provides in pertinent part:

          Whenever circumstances subject a child to the
          jurisdiction of the court under AS  47.10.005
          -   47.10.142,  the  court  shall  appoint  a
          competent   person  or  agency  to   make   a
          preliminary  inquiry  and  report   for   the
          information of the court to determine whether
          the  best interests of the child require that
          further  action  be  taken.  If,  under  this
          subsection,  the court appoints a  person  or
          agency  to make a preliminary inquiry and  to
          report  to it, then, upon the receipt of  the
          report, the court may . . . (3) authorize the
          person  or  agency  having knowledge  of  the
          facts  of the case to file with the  court  a
          petition setting out the facts.
          
     15    AS 47.10.080(l) provides in pertinent part:

          Within  12  months  after the  date  a  child
          enters  foster  care as calculated  under  AS
          47.10.088(f),   the  court   shall   hold   a
          permanency hearing. The hearing and permanent
          plan developed in the hearing are governed by
          the  following  provisions .  .  .  (2)  when
          establishing  the  permanent  plan  for   the
          child,   the  court  shall  make  appropriate
          written  findings, including findings related
          to  whether  .  . . (B) the child  should  be
          placed for adoption or legal guardianship and
          whether   a   petition  for  termination   of
          parental  rights  should  be  filed  by   the
          department . . . .
          
     16    AS 47.05.060 provides in pertinent part:

          The  purpose of this title as it  relates  to
          children  is . . . to preserve and strengthen
          the  childs  family  ties unless  efforts  to
          preserve  and strengthen the ties are  likely
          to  result in physical or emotional damage to
          the  child . . . and . . . to secure for  the
          child  adequate custody and care and adequate
          planning  for  permanent  placement  of   the
          child.
          
     17     Karen L. v. State, Dept of Health & Soc. Servs., Div.
of  Family  &  Youth  Serv.,  953 P.2d  871,  876  (Alaska  1998)
(declining  to  impose duty of care on state and  social  workers
because  it  was  not reasonably foreseeable that  their  conduct
would cause Karen L. actionable emotional harm).

     18    Id. at 873.

     19    Id. at 876, 878.

     20    Id. at 876.

     21    Id. at 878.

     22     See, e.g., Bivens v. Six Unknown Named Agents of Fed.
Bureau  of  Narcotics,  403 U.S. 388, 389  (1971)  (holding  that
Fourth Amendment violation by federal agent acting under color of
his  authority gave rise to cause of action for damages  directly
under U.S. Constitution).

     23     Brown v. Ely, 14 P.3d 257, 261 (Alaska 2000) (We have
neither adopted nor rejected the Bivens approach with respect  to
state  constitutional violations.);  King v. Alaska  State  Hous.
Auth., 633 P.2d 256, 261 (Alaska 1981).

     24    Brown v. Ely, 14 P.3d 257, 261 (Alaska 2000); Thoma v.
Hickel, 947 P.2d 816, 824 (Alaska 1997); Dick Fischer Dev. No. 2,
Inc.  v. Dept of Admin., 838 P.2d 263, 268 (Alaska 1992) (We  are
also hesitant to extend the Bivens decision, and will not allow a
claim  for  damages  except in cases of  flagrant  constitutional
violations   where   little  or  no  alternative   remedies   are
available.).

     25     See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74
(2001) (refusing to extend Bivens action to plaintiff whose  lack
of alternative tort remedies was due solely to strategic choice).

     26     They also argue that their allegations of intentional
wrongdoing  and  deceit satisfy the D.S.W.  factors.   But  those
factors   pertain   only  to  torts  involving   negligent,   not
intentional, acts.  See infra.

     27    Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 589
(Alaska 2001).

     28    Id.

     29    Id.

     30    Wongittilin, 36 P.3d at 681 (stating nature and extent
of duty are questions of law).

     31    Karen L., 953 P.2d at 874.

     32    Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995).

     33     Hawks v. State, Dept of Public Safety, 908 P.2d 1013,
1016 (Alaska 1995).

     34    Karen L., 953 P.2d at 874-78.

     35    Id. at 873.

     36    Id. at 876 n.10.

     37     Silvers  v. Silvers, 999 P.2d 786, 793 (Alaska  2000)
(stating  that [a]s with any negligence case, the plaintiff  must
establish  (1)  a  duty  of care; (2) breach  of  the  duty;  (3)
causation; and (4) harm).

     38     The  prototypical Alaska case was Transamerica  Title
Insurance  v.  Ramsey,  507 P.2d 492  (Alaska  1973).   We  there
followed Howarth v. Pfeifer, 443 P.2d 39 (Alaska 1968), in  which
we  adopted the test applied by the California Supreme  Court  in
Lucas  v.  Hamm,  364  P.2d  685,  687  (Cal.  1961).   State  v.
Sandsness,  72 P.3d 299 (Alaska 2003), is typical of  our  modern
cases.   There  was no relevant preexisting relationship  between
the  state  and the decedent, a taxicab driver shot  by  a  state
juvenile releasee.  Id. at 300, 305.

     39    Lincoln, 30 P.3d at 589.

     40    In re Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

     41    AS 09.50.250 provides in part:  [A]n action may not be
brought  if  the  claim  .  .  .  (3)  arises  out  of  .   .   .
misrepresentation, [or] deceit . . . .