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Trapp v. State of Alaska (05/13/2005) sp-5895
Trapp v. State of Alaska (05/13/2005) sp-5895
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
SUSAN TRAPP, )
) Supreme Court No. S-11280
Appellant, )
) Superior Court No.
v. ) 3AN-00-06545 CI
)
STATE OF ALASKA, )
OFFICE OF PUBLIC ADVOCACY, ) O P I N I O N
)
Appellee. ) [No. 5895 - May 13, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: John A. Treptow, Wendy E.
Leukuma, Dorsey & Whitney LLP, Anchorage, for
Appellant. Venable Vermont, Jr., Assistant
Attorney General, Anchorage, Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Under Alaska law, an individual may petition the
superior court to appoint a conservator with power to manage the
individuals finances, or a guardian with a broader, quasi-
parental power to promote the individuals well-being. In cases
where no private person is willing and competent to serve, the
state Office of Public Advocacy (OPA) is appointed as a
conservator or guardian. OPA was appointed to be Susan Trapps
conservator in 1995, pursuant to Trapps petition. Before and
during OPAs conservatorship, Trapp was addicted to drugs and
alcohol, was physically and mentally ill, and was sometimes
homeless. The main question in this appeal is whether OPA,
knowing Trapps problems, had a duty to seek to convert the
conservatorship into a guardianship. We hold that OPA had no
such duty, and affirm the judgment of the superior court. Trapp
also argues OPA should have made a report of harm to the
Department of Health and Social Services (DHSS), but we do not
consider this argument on the merits because Trapp entered a
stipulation dismissing her duty-to-report claim.
II. FACTS AND PROCEEDINGS
Because the superior court decided the case in OPAs
favor on summary judgment motions, we will present the facts in
the light most favorable to Trapp.1 In 1995 Trapp petitioned the
superior court to appoint a conservator for herself. After a
hearing, the superior court entered an order appointing OPA as
conservator with the powers and duties set forth in AS 13.26.280
and as set out in the conservatorship plan. As discussed in more
detail below, AS 13.26.280 authorizes conservators to undertake,
without court authorization, twenty-five acts related to
management of the protected persons property; the conservatorship
plan can also authorize additional acts. Here the
conservatorship plan approved by the superior court was routine;
it authorized OPA to collect funds, pay certain living expenses,
and manage Trapps property.2
Even before OPA had been appointed as Trapps
conservator, Trapp had a history of drug and alcohol abuse,
physical and mental illness, and homelessness. These problems
continued through the conservatorship, with Trapp spending
significant amounts of time homeless or without a permanent home,
in jail, or in the Alaska Psychiatric Institute (API). According
to a May 2003 statement by Trapps treating physician, [o]ver the
past many years, in addition to 51 admissions to API, the patient
has been at Clitheroe Detox Program 48 times, has been convicted
of misdemeanor offenses about 40 times, and over the past several
years has been seen at the Providence Anchorage emergency room
about 200 times. The OPA employee assigned to Trapps case knew
about these problems.
Trapps grievances against OPA have evolved somewhat
over time. Initially Trapp asked the superior court to terminate
the conservatorship; these requests were denied, although once
the superior court ordered OPA and Trapp to agree on a schedule
to increase Trapps control over her property. In April 2000
Trapp filed a civil complaint against OPA. The complaint alleged
that OPA intentionally withheld funds from her, told other
agencies not to provide her with help, verbally abused Trapp, and
failed to act on its knowledge of the severity of her illnesses
and homelessness. The superior court granted OPAs motion to
dismiss Trapps suit based on absolute quasi-judicial immunity,
but we reversed this on Trapps appeal.3
On remand Trapp filed an amended complaint, this time
with the assistance of counsel. The thrust of the amended
complaint was that OPA should have assumed more (not less)
control over Trapps life. The amended complaint alleged, among
other claims, that OPA breached its fiduciary duty to [Trapp] by
failing to take formal action to address [Trapps] psychiatric
disorders, severe drug and alcohol addictions, and gambling
addiction. OPA moved for partial summary judgment. OPA argued
that it had no duty to seek to upgrade Trapps conservatorship to
a guardianship and to take more power over her life and affairs.
Trapp opposed OPAs motion, and simultaneously moved for partial
summary judgment in her favor. In the papers opposing OPAs
motion and supporting her own, Trapp argued that OPA owed her a
duty to petition for guardianship, and also referred vaguely to
OPAs duty to take other affirmative steps to care for Trapp.
Later, in her reply papers in support of her motion (i.e., after
OPAs motion was fully briefed), Trapp made this latter argument
more specific, by claiming that OPA had breached AS
47.24.010(a)(5). This statutory provision requires conservators
and guardians to report to DHSS all cases in which it believes
vulnerable adults are suffering from self-neglect or other
problems.4
In an order dated September 11, 2003, Superior Court
Judge Peter A. Michalski granted OPAs motion for partial summary
judgment, on the ground that there is no such duty [to seek
guardianship] under these facts. Trapp filed a motion to amend
this order, to clarify that Trapps motion for partial summary
judgment had been denied. According to this motion to amend,
Trapps partial summary judgment motion had contended that OPA
owed [Trapp] an affirmative duty to either petition for a
guardianship or to take affirmative steps to protect her health
and safety . . . . On September 24 Judge Michalski duly amended
his order to state that Trapps cross-motion for partial summary
judgment is hereby denied. Trapp then moved to have the amended
order entered as a judgment, notwithstanding the pendency of
other claims in Trapps amended complaint that were not included
in either partial summary judgment motion. Judge Michalski
agreed, and entered the following judgment under Civil Rule
54(b): IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
Office of Public Advocacy did not owe a duty to the plaintiff to
upgrade plaintiffs conservatorship to a guardianship or to take
affirmative action to protect plaintiff when plaintiff was unable
to take care of herself.
Trapp appealed. After hearing oral argument, we
dismissed the appeal on the ground that the superior court
should not have entered the judgment until it had adjudicated all
claims in the amended complaint. Our order stated that the
dismissal of the appeal would be rescinded if the parties file a
formal stipulation within ten days from the date of this order
that provides that all claims not encompassed within the superior
courts grant of OPAs Motion for Partial Summary Judgment are
dismissed with prejudice. The parties timely filed this
stipulation, thereby authorizing us to hear the appeal.
III. DISCUSSION
Trapp argues that OPA, as Trapps conservator, is liable
in tort because (1) OPA breached a common-law duty of care by
failing to seek to become Trapps guardian, and (2) OPA breached
its statutory duty to make a report of harm to DHSS.
A. OPAs Purported Duty To Petition To Become Trapps
Guardian
Trapps main argument is that common-law principles give
her a tort remedy against OPA for failing to petition to become
her guardian. It is undisputed that as a guardian, OPA would
have exerted significantly more control over Trapps life than it
did as her conservator, a guardian having (for example) most of
the same powers and responsibilities over a ward that parents
have over their unemancipated child.5 The scope of a tort duty,
unless it turns on disputed facts (and here it does not), is a
question of law that we review de novo.6
The general rule is that a person is not required to
act to protect another, but there are exceptions.7 Here the most
relevant exception is in section 323 of the Restatement (Second)
of Torts, which makes actors liable for failing to perform a
prior undertaking with reasonable care:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of the others person or
things, is subject to liability to the other
for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if (a) his failure to exercise
such care increases the risk of such harm, or
(b) the harm is suffered because of the
others reliance upon the undertaking.
This principle underlies several of our decisions.8
Trapp argues that the conservatorship plan, the OPA
statute, and the conservatorship statute amount to an undertaking
by OPA to protect Trapp from herself, to the extent of requiring
OPA to petition to become Trapps guardian. The plan certainly
does not do this; it merely gives OPA routine financial
responsibilities. Trapp relies on the plans use of the term
ward, which might imply a guardianship rather than a
conservatorship, but read in context we think this was at most a
trivial solecism.
Trapp also argues that the conservatorship statute and
the statute regulating OPA amount to the requisite undertaking by
OPA. Trapp focuses on three statutory provisions. Under the
first, OPA is required to make quarterly visits to monitor [the]
welfare of persons for whom it is a guardian or conservator.9
But OPAs duty to visit or monitor a protected person is not the
same as a duty to take concrete steps to promote the persons
welfare. And even promoting the protected persons welfare might
mean only that the conservator should ensure that money spent to
educate or support the protected person is spent wisely.
Trapp also cites a provision, applicable only to OPA
and not to other conservators, requiring OPA to intervene in
conservatorship proceedings in cases where intervention is in the
best interests of the protected person.10 For this provision to
constitute an undertaking in the sense described above, Trapp
would have to read the provision to require OPA to seek to
convert conservatorships into guardianships, or at least to
require OPA to urge some kind of outcome in the course of its
intervention. But this reading is somewhat implausible. What
OPA may choose to do once it has intervened is not specified, and
the purpose of the statute seems rather to authorize
interventions by OPA to replace incompetent or corrupt private
conservators.11 In any event, the statute gives OPA authority to
intervene but does not require it; it is hard to see how such an
authorization could amount to an undertaking to act.
Trapps third statutory argument is based on AS
47.24.010(a), which directs conservators to make a report of harm
to DHSS whenever they come across a vulnerable adult. OPA
apparently did not make this report of harm, and Trapp argues
mainly that OPA should be civilly liable to her for breach of
this statutory duty, irrespective of whether OPA had a duty to
seek to become her guardian. This argument is considered in the
next section. But we also think it is fair to consider whether
the duty to report could amount to an undertaking by OPA to
petition to become Trapps guardian.
We conclude that the duty-to-report provision does not
amount to such an undertaking. It says that where conservators
(and others in a long list of social services providers) have
reasonable cause to believe that a vulnerable adult suffers from
abandonment, exploitation, abuse, neglect, or self-neglect, the
conservator shall . . . report the belief to [DHSSs] central
information and referral service for vulnerable adults.12 A
report triggers an investigation by DHSSs Adult Protective
Services (APS) office.13 After investigating, APS may petition
the superior court for appointment of a guardian, and also is
required, if the vulnerable adult or the adults guardian
consents, to ensure that any necessary protective services are
provided to the vulnerable adult.14 These provisions arguably
require OPA and other conservators to make a report of harm, and
anticipate that APS may act on that report by seeking to have a
guardian appointed. But they do not require the conservator to
make the guardianship petition itself. We therefore think that
AS 47.24.010(a) does not amount to an undertaking by OPA or other
conservators to petition to become Trapps guardian.
Moreover, other statutory provisions make it clear that
OPAs primary role in a conservatorship is to manage the protected
persons property for the persons benefit, rather than to assume
responsibility for the persons welfare. This emphasis on money
does not preclude the possibility that other statutory provisions
impose non-financial duties, but it does suggest another reason
why we should not read broadly worded provisions in the way that
Trapp wants us to. For example, AS 13.26.280 and AS 13.26.285
enumerate the actions a conservator is authorized to take. These
relate exclusively to the protected persons property.15 One
exception is that AS 13.26.280(a) gives conservators the powers
of a guardian in cases where the protected person is a minor, but
the specificity of the exception suggests that conservators do
not have a general responsibility over protected adults such as
Trapp.16 Subsection .280(a) also gives conservators, in addition
to their specifically listed powers, any additional powers
conferred by law on trustees in this state. But trustees are
traditionally responsible for property, not persons, and there is
no authority we know of that would make a trustee directly
responsible for the personal welfare of a beneficiary.17 Another
section of the conservatorship statute makes conservators liable
for torts committed in the administration of the estate.18
Although we do not read this section as necessarily providing the
exclusive redress against any potentially tortious acts by OPA,
it again suggests that it would be surprising if the same statute
elsewhere created an undertaking by OPA to look after Trapps
person.
Trapp also cites a number of cases to support her
argument that OPA has, merely by virtue of becoming her
conservator, undertaken to petition to become her guardian, but
we find these distinguishable. In each case the defendant failed
in tasks at the heart of its statutory or traditional
responsibilities: police officers in their duty to respond to
specific threats; jailers in their duty to look after the welfare
of their prisoners; fire inspectors in their duty to act on
knowledge of fire hazards in a building; child protection
agencies in their duty to inspect and license daycare centers.19
These cases do not support what Trapp advocates, which is to
expand the scope of a conservators duties beyond the duties
imposed by detailed statutes.
Trapp also argues that, even if there is no undertaking
sufficient to impose a duty under the Restatement, the policy
factors listed in D.S.W. v. Fairbanks North Star Borough School
District support expanding the scope of OPAs duty to Trapp.20
Even assuming that considering these factors is proper in a
situation where Restatement principles suggest there should not
be a duty,21 the humanitarian merit of Trapps position would not
outweigh the unfairness and surprise to OPA (and potentially to
other conservators) that would result from imposing a vague
common-law responsibility beyond those listed in the statutes and
the plan. Put into D.S.W. terms, we believe there would be a
significant burden to the defendant and consequences to the
community if we imposed an extra-statutory duty of care.
A final consideration is that we are reluctant to alter
policy choices embedded in the legislative scheme. As Trapp
acknowledges, the conservatorship statute balances the protected
persons independence against her need for supervision.22 If we
read that statute or the OPA statute as broadly as Trapp asks us
to, it might induce OPA to petition for a guardianship in cases
where a guardianship is less obviously merited than it seems to
have been in Trapps case. This result would alter the policy
balance enacted by the statute.23
At bottom, Trapps arguments overestimate the latitude
courts have to impose a common-law duty. Trapps view seems to be
that a duty can be imposed whenever inaction harms someone and
the duty is otherwise (in Trapps words) consistent with a
statutory scheme governing the relationship between the parties.
But as the foregoing indicates, our willingness to impose such a
duty is limited by the general principle against imposing duties
to act for the benefit of another. It is also limited by our
reluctance to surprise conservators with non-statutory duties,
particularly where such duties would cause conservators to
interfere more in the lives of protected persons, a policy choice
potentially in conflict with the conservatorship statute. We
therefore reject Trapps argument that OPA should be liable for
failing to seek to become her guardian.
B. OPAs Purported Duty To Report Trapp as a Vulnerable
Adult
Trapps other argument is that OPA should be liable to
her in tort because it failed to make a report of harm under AS
47.24.010(a). As we have noted, this statute says that where
conservators (and others in a long list of social services
professionals) have reasonable cause to believe that a vulnerable
adult suffers from abandonment, exploitation, abuse, neglect, or
self-neglect, the conservator shall . . . report the belief to
[DHSSs] central information and referral service for vulnerable
adults.24 This report leads to an investigation by APS, which may
petition for appointment of a guardian, and is required to ensure
that (where the vulnerable adult or guardian consents) other
protective services are provided.25
There are serious questions about whether Trapps duty-
to-report claim was preserved in the superior court, and whether
Trapp could ever prove that this failure to report proximately
caused her injuries. But we do not reach these issues, because
we believe the duty-to-report claim is subject to the stipulation
of dismissal previously entered in this court.
As entered by the parties, the stipulation dismisses
all claims not encompassed within the superior courts grant of
OPAs Motion for Partial Summary Judgment dated September 11,
2003. In this September 11 order granting OPAs motion, the
superior court grant[ed] summary judgment to the defendant on the
issue of duty to seek guardianship. There was no mention of the
duty-to-report issue. Nor should there have been, since this
issue was not raised by OPA in its motion, or by Trapp in her
opposition. Instead, the first time anyone raised the duty-to-
report issue was in Trapps reply brief in support of her motion
for summary judgment, which described the duty to report as one
affirmative action OPA should have taken as an alternative to
seeking to become Trapps guardian. And Trapps motion was denied
in another, amended order dated September 24, 2003. These facts
persuade us that the duty-to-report issue was not, in the words
of the stipulation, encompassed within the superior courts grant
of OPAs Motion for Partial Summary Judgment dated September 11,
2003.
For these reasons, we find that the duty-to-report
claim was dismissed by stipulation, and that appellate review of
this issue is not available.
IV. CONCLUSION
The order of the superior court granting partial
summary judgment to OPA on Trapps claim that OPA had a duty to
seek a guardianship for her is AFFIRMED. All other claims have
been previously dismissed by stipulation. It is unnecessary to
consider OPAs argument that it is entitled to discretionary
function immunity.
_______________________________
1 State, Dept of Health & Soc. Servs., Div. of Family &
Youth Servs. v. Sandsness, 72 P.3d 299, 301 (Alaska 2003).
2 The conservatorship plan stated:
1. The conservator [OPA] has full
authority to pay for the wards medical care,
mental health treatment, and any necessary
physical and mental examinations.
2. The conservator has full authority
to pay for the wards housing in the least
restrictive setting feasible.
3. The conservator has full authority
to pay for the wards personal care, comfort,
maintenance, education and vocational
services necessary for the physical and
mental welfare of the ward.
4. The conservator has full authority
to obtain health and accident insurance and
to apply for and collect any other private or
governmental benefits to which the ward may
be entitled, to meet any part of the costs of
medical, mental health or related services
provided to the ward.
5. The conservator has full authority to
handle financial affairs and receive money
and property deliverable to the ward,
including full control of the estate and the
income of the ward to pay for the cost of
services.
3 We held that OPA was not entitled to absolute immunity
but expressed no opinion on whether OPA might be entitled to
qualified public official immunity. Trapp v. State, Office of
Pub. Advocacy, 53 P.3d 1128, 1130 n.4 (Alaska 2002).
4 [T]he following persons [including guardians and
conservators] who . . . have reasonable cause to believe that a
vulnerable adult suffers from abandonment, exploitation, abuse,
neglect, or self-neglect shall . . . report the belief to the
departments central information and referral service for
vulnerable adults. AS 47.24.010(a). After receiving such a
report, DHSS may petition the superior court for appointment of a
guardian, and also is required if the vulnerable adult or the
adults guardian consents to ensure that any necessary protective
services are provided to the vulnerable adult. See AS 47.24.017
(requiring department to ensure provision of any protective
services it determines to be necessary, provided vulnerable adult
consents to receipt of services); AS 47.24.019(a) (department may
petition for appointment of guardian).
5 See AS 13.26.150(c) (duties of guardian over
incapacitated adult).
6 See, e.g., Henricksen v. State, 84 P.3d 38, 45 (Mont.
2004); Sanchez v. State, 784 N.E.2d 675, 678 (N.Y. 2002).
7 Joseph v. State, 26 P.3d 459, 473 (Alaska 2001).
8 See, e.g., R.E. v. State, 878 P.2d 1341 (Alaska 1994);
Adams v. State, 555 P.2d 235 (Alaska 1976).
9 AS 13.26.380(c)(2).
10 AS 13.26.390(4).
11 AS 13.26.390 provides:
The public guardian may, on the public
guardians own motion or at the request of the
court, intervene in a guardianship or
conservatorship proceeding if the public
guardian or the court considers the
intervention to be justified because
(1) an appointed guardian or conservator
is not fulfilling duties;
(2) the estate is subject to waste as a
result of the costs of the guardianship or
conservatorship;
(3) a willing and qualified guardian or
conservator is not available; or
(4) the best interests of the ward,
respondent, protected person, or person who
is the subject of a conservatorship
proceeding require the intervention.
12 AS 47.24.010(a) & (a)(5).
13 AS 47.24.015(a).
14 See AS 47.24.017 (requiring department to ensure
provision of any protective services it determines to be
necessary, provided vulnerable adult consents to receipt of
services); AS 47.24.019(a) (department may petition for
appointment of guardian).
15 AS 13.26.280 provides:
(a) A conservator has all of the powers
conferred herein and any additional powers
conferred by law on trustees in this state.
In addition, a conservator of the estate of
an unmarried minor, as to whom no one has
parental rights, has the duties and powers of
a guardian of a minor described in AS
13.26.070 until the minor attains the age of
18 or marries, but the parental rights so
conferred on a conservator do not preclude
appointment of a guardian as provided by AS
13.26.030 13.26.085.
(b) A conservator has power without
court authorization or confirmation, to
invest and reinvest funds of the estate as
would a trustee.
(c) A conservator, acting reasonably in
efforts to accomplish the purpose for which
the conservator was appointed, may act,
without court authorization or confirmation,
to
(1) collect, hold and retain assets of
the estate including land in another state,
until, in the conservators judgment,
disposition of the assets should be made, and
the assets may be retained even though they
include an asset in which the conservator is
personally interested[.]
The statute goes on to list twenty-four other powers to manage
the protected persons property. See also First Natl Bank of
Anchorage v. State, Office of Pub. Advocacy, 902 P.2d 330, 331
n.1 (Alaska 1995) (The conservatorship statute authorizes a
conservator to handle a wards financial affairs.).
16 One useful and logical maxim of statutory construction,
though it should not be blindly followed, is expressio unis est
exclusio alterius, which means that to express one thing is to
imply the exclusion of others. See Ellingstad v. State, Dept of
Natural Res., 979 P.2d 1000, 1006 (Alaska 1999).
17 See, e.g., AS 13.36.109 (a trustee may perform all
actions necessary to accomplish the proper management,
investment, and distribution of the trust property, enumerating
specific property-management duties that trustees have);
Restatement (Second) of Trusts 164-196 (1959) (similar).
18 AS 13.26.305(b).
19 City of Kotzebue v. McLean, 702 P.2d 1309, 1312-13
(Alaska 1985) (police); Joseph, 26 P.3d at 473-74 (jailer);
Adams, 555 P.2d at 240 (fire inspector); R.E., 878 P.2d at 1346-
48 (child protection agency).
20 The D.S.W. factors are:
The foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff
suffered injury, the closeness of the
connection between the defendants conduct and
the injury suffered, the moral blame attached
to the defendants conduct, the policy of
preventing future harm, 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
the availability, cost and prevalence of
insurance for the risk involved.
D.S.W. v. Fairbanks N. Star Borough Sch. Dist., 628 P.2d 554, 555
(Alaska 1981).
21 Cf. Wongittilin v. State, 36 P.3d 678, 685 (Alaska
2001) (Because we hold that the police had no duty to arrest
Jackson based on our existing case law, we need not perform a
D.S.W. factor analysis . . . .). See also Joseph, 26 P.3d at 473
(Absent [a relationship giving rise to a recognized duty of
care], we typically apply the D.S.W. factors to decide whether a
duty of care exists. But if the parties already have a
relationship that gives rise to a recognized duty of care, the
focus is instead on what conduct is needed to discharge that
duty.) (footnotes and citations omitted).
22 See, e.g., AS 13.26.195(d) (A conservator may be
appointed only if a less restrictive protective order or the
services of a special conservator are not adequate to protected
the estate of the protected person.); AS 13.26.285(d) (When
protected persons disability ends, conservator must pay over all
estate funds to former protected person as soon as possible.).
23 See State, Dept of Health & Soc. Servs., Div. of Family
& Youth Servs. v. Sandsness, 72 P.3d 299, 303-04 (Alaska 2003)
(rejecting claim that state had tort duty to use due care in
deciding whether to release juvenile offender; imposing such a
duty would make the state reluctant to release juveniles and
override statutory compromise between offenders needs and
societys needs).
24 AS 47.24.010(a) & (a)(5).
25 See AS 47.24.017 (requiring department to ensure
provision of any protective services it determines to be
necessary, provided vulnerable adult consents to receipt of
services); AS 47.24.019(a) (department may petition for
appointment of guardian).
