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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Reasner v. State, Dept. of Health & Social Services, Office of Children's Services (5/19/2017) sp-7171

Reasner v. State, Dept. of Health & Social Services, Office of Children's Services (5/19/2017) sp-7171, 394 P3d 610

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          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                      

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



LISA  REASNER,                                                     )  

                                                                   )     Supreme  Court  Nos.  S-15900/15929  

                     Appellant/Cross-Appellee,                     )  

                                                                   )     Superior  Court  No.  4FA-12-02812  CI  

          v.                                                       )  

                                                                   )     O P I N I O N  

                                                                                            

STATE OF ALASKA, DEPARTMENT                                        )
  

                                                                

OF HEALTH & SOCIAL SERVICES,                                       )    No. 7171 - May  19, 2017
  

                                          

                                                                                                          

OFFICE OF CHILDREN'S SERVICES,                                     )
  

                                             

                                                                   )  

                     Appellee/Cross-Appellant,                     )  

                                                                   )  

          and                                                      )  

                                                                   )  

ROLIN N. ALLISON JR.                                               )  

                                    

                                                                   )  

                     Appellee.                                     )  

                                                                   )  



                     Appeal   from   the   Superior   Court  of   the   State   of   Alaska,
  

                     Fourth Judicial  District, Fairbanks, Bethany  Harbison, Judge.
  

  

                     Appearances:              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.  

                                         


----------------------- Page 2-----------------------

                          BOLGER, Justice.   



I.           INTRODUCTION  



                          Lisa Reasner suffered years of sexual abuse while in foster care and after                                                        



                                                                             1  

the Office of Children's Services (OCS)                                                                                                    

                                                                                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.  



                                                                            2  

                                          

II.          FACTS AND PROCEEDINGS 



                                                                                                                                                           

                          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  



             1            OCS was known at the time as the Division of Family and Youth Services.                                                  



             2            Because this case was decided on summary judgment, we present the facts  

                                                                                                                                                            

 in the light most favorable to Reasner's claims.  See Hagen v. Strobel, 353 P.3d 799,  

                                                                                                                                                            

 802-03 (Alaska 2015).  

                                             



                                                                               -2-                                                                        7171
  


----------------------- Page 3-----------------------

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                                              2011J.R. wasarrestedfor sexually abusingReasner 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                                                                                                                                                                                                           

                               3        concluding  that  they  were  untimely  under  Alaska's  two-year  statute  of  

claims,                                                                                                                                                                                                                                                                                                                                                               

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,  



                             3                           The court's order addressed both OCS's motion to dismiss and its motion                                                                                                                                                                                                                   



for summary judgment. But because the order relied on evidence outside the pleadings,                                                                                                                                                                                                                                                 

we   simply   treat   it   as  a   grant   of   summary   judgment.     See   Alaska   R.   Civ.   P.   12(c)  

(providing that a motion for judgment on the pleadings shall be treated as one for                                                                                                                                                                                                                                                                                  

 summary judgment if "matters outside the pleadings are presented to and not excluded                                                                                                                                                                                                                                                      

by the court").              



                             4                           AS 09.10.070.  

                                                                         



                                                                                                                                                                                    -3-                                                                                                                                                                       7171
  


----------------------- Page 4-----------------------

 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  

                                                                                                                                                                                                    

                                 7    Any admissible evidence in favor of the nonmoving party concerning a  

judgment.' "    

 material fact is sufficient . . . ."8                                                                                                                                                                                     9  

                                                                                                                                                                                                                               

                                                                                    We review questions of summary judgment de novo. 



                                  We divide our discussion into two categories:  (1) whether the superior  

                                                                                                                                                                                                       



 court erred in granting OCS summary judgment becauseReasner's claims were untimely  

                                                                                                                                                                                                       



 and (2) whether Reasner's claims otherwise withstand summary judgment.  

                                                                                                                                                                      



                  5                Christensen v. Alaska Sales &Serv., Inc.                                                            , 335 P.3d514,520 (Alaska 2014).
                                     



                  6               Id.
  



                  7
              Id. (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)).  

                                                                                                                                                                                                



                  8                Greywolf v. Carroll                               , 151 P.3d 1234, 1241 (Alaska 2007).                                           



                  9                Cikan v. ARCO Alaska, Inc.                                             , 125 P.3d 335, 338-39 (Alaska 2005).                                             



                                                                                                           -4-                                                                                                  7171
  


----------------------- Page 5-----------------------

                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                                                                                           



                                                           10  

years of [their] accrual."                                                                                                                                                        

                                                                  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  



                                                                                                                                                                                           11  

                                                                                                                                                                                                 The  

potential cause of action or should begin an inquiry to protect his or her rights." 



                                                                                                                                                                                    

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  



                                    12                                                                                                                                           13  

                                                                                                                                                                                                

cause of action.                          Determining that date requires a "fact-intensive" analysis.                                                                                 We have  



                                                                                                                                                          

therefore cautioned that summary judgment should only be used to resolve the time at  



                10	            AS 09.10.070(a).   



                11             Mine Safety Appliances Co. v. Stiles                                                   , 756 P.2d 288, 291 (Alaska 1988).                                                      



This is referred to as the "discovery rule."                                                    See Cameron v. State                             , 822 P.2d 1362, 1365-66               

(Alaska 1991) (explaining Alaska's formulation of the discovery rule).  

                                                                                                                                                                        



                12             See Cameron, 822 P.2d at 1366.  

                                                                                                             



                13             Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 509  

                                                                                                                                                                                                   

(Alaska 2015).  

                                     



                                                                                                  -5-	                                                                                          7171
  


----------------------- Page 6-----------------------

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  

                                    15  Reasner argues that a reasonable person in her circumstances would  

                                                                                                                                                                  

acted negligently. 



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  

                                                                                                                                                                    



              14           Palmer v. Borg-Warner Corp.                                  , 818 P.2d 632, 634 (Alaska 1990).                                      



              15           Generally, Reasner must show that (1) OCS owed her a duty of care,                                                                       



(2) OCS breached that duty, (3) she was injured, and (4) her injury was the factual and  

                                                                                                                                                                       

proximate result of OCS's breach.                                     See Regner v. N. Star Volunteer Fire Dep't, Inc.                                              , 323   

P.3d 16, 21 (Alaska 2014);                                Kelly v. Municipality of Anchorage                                        , 270 P.3d 801, 803               

(Alaska 2012).  

                                



              16           See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that while  

                                                                                                                                                                   

the  need  for  the  discovery  rule  is  most  apparent  "where  the  plaintiff's  injury  is  

                                                                                                                                                                          

undiscovered and reasonably undiscoverable," Alaska's formulation of the discovery  

                                                                                                                                                          

rule  "is  broad  enough  to  cover  other  undiscovered  and  reasonably  undiscoverable  

                                                                                                                      

elements such as whether the cause of the injury was tortious").   See also Sopko v.  

                                                                                                                                                                          

Dowell Schlumberger, Inc., 21 P.3d 1265, 1270 (Alaska 2001) (citing Pedersen  and  

                                                                                                                                                                      

 stating that discovery rule in tort suits "protects plaintiffs whose injury is known but the  

                                                                                                                                                                        

cause is not reasonably discoverable during the limitations period").  Cf. Mine Safety  

                                                                                                                                                                  

Appliances Co. , 756 P.2d at 291-92, (affirming summary judgment decision that under  

                                                                                                                                                                   

the discovery rule the statute of limitations for a product defect in a worker's helmet  

                                                                                                                                            

began to run from the date of the accident involving head injuries and damage to the  

                                                                                                                                                                  

helmet, rather than date the plaintiff actually discovered the helmet was defective).  

                                                                                                                                                 



                                                                                    -6-                                                                             7171
  


----------------------- Page 7-----------------------

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                                                               

                                                                                                                                          17   We conclude that  

person could discern a genuine factual dispute on a material issue."                                                                                                        



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  

                                                                                                                                                                 



              17  

                                                                                                                                                                       

                            Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 520 (Alaska2014).  



              18           Id.  



                                                                                       -7-                                                                                      7171  


----------------------- Page 8-----------------------

 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).                                                      



                                         Moreimportantly,                                        theconclusionreachedbythesuperior courtwas                                                                                                      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  

                                                                                                                                                                                                                                 19       Reasner's  

 concerning a material fact is sufficient" to withstand summary judgment.                                                                                                                                                               



 sworn affidavit constitutes admissible evidence and is relevant to determining when  

                                                                                                                                                                                                                                                       



 Reasner discovered sufficient information "to alert a reasonable person to begin an  

                                                                                                                                                                                                                                                                

                                                                                                    20         Rather  than  resolving  this  issue  at  the  summary  

 inquiry  to  protect  [her]  rights."                                                                                                                                                                                                    

                                                                            



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  

                                                                                                                                                                                                                       



                     19                   Greywolf v. Carroll                                         , 151 P.3d 1234, 1241 (Alaska 2007).                                                           



                     20                   Cameron v. State                                    , 822 P.2d 1362, 1366 (Alaska 1991).                                                                                 



                     21  

                                                                                                                                                                                                                                                     

                                          CatholicBishop of N. Alaska v. Does 1-6, 141 P.3d719, 725 (Alaska2006).  



                                                                                                                                -8-                                                                                                                      7171
  


----------------------- Page 9-----------------------

                                                                            22  

triggered the duty to investigate OCS."                                          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           

                                       23    In that case the plaintiffs sued two institutional defendants, the  

Alaska v. Does 1-6                    .                                                                                                                            



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  

                                                                                                                                          



             22           We  may  affirm  the  superior  court's g                                rant  of  summary  judgment  "on  any  



basis  supported  by  the  record,  even  if  that  basis  was  not  considered  by  the  court  below  

or  advanced  by  any  party."   Powercorp  Alaska,  LLC  v.  Alaska  Energy  Authority ,  290  

P.3d  1173,  1181  (Alaska  2012)  (quoting  Smith  v.  Stafford,  189  P.3d  1065,  1070  (Alaska  

2008)).   



             23            141 P.3d 719.  

                                              



             24           Id. at 720.  

                                                



             25           Id. at 725.  

                                      



             26           We have found in some cases that plaintiffs are on inquiry notice from the  

                                                                                                                                                                   

date  of  injury,  even  when  they  lack  knowledge  of  specific  facts  indicating  that  a  

                                                                                                                                                                      

particular defendant had played a role in causing that injury.  See, e.g., Palmer v. Borg- 

                                                                                                                                                              

 Warner Corp., 818 P.2d 632, 635 (Alaska 1990) (holding that the estate of passenger  

                                                                                                                                                      

killed in an airplane crash was on inquiry notice of potential claims against an airplane  

                                                                                                                                                         

engine component manufacturer when the estate discovered that the crash had occurred);  

                                                                                                                                                     

                                                                                                                                               (continued...)  



                                                                                  -9-                                                                          7171
  


----------------------- Page 10-----------------------

                       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"  



            26         (...continued)  



                                                                                                                                               

Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska 1988) (holding that  

                                                                                                                                                  

plaintiff who suffered a head injury while wearing a protective helmet designed to  

                                                                                                                                                

prevent such injuries was on inquiry notice of potential product defect claims from the  

                                                                                                                                               

date of injury); As we indicated in those cases, however, the nature of the injury and  

                                                                                                                                                

identity of the potentially negligent parties is critical to this analysis.  In Palmer, for  

                                                                                                                                                  

example, we concluded that notice of an airplane crash put the plaintiff on notice of  

                                                                                                                                        

potential negligence claims against an airplane engine component manufacturer because  

                                                                                                                                 

"[t]he  general  safety  record  of  air  travel  and  the  present  state  of  air  technology  

                                                                                                                                                  

compel[led] us to conclude that air crashes do not normally occur absent negligence" by  

                                                                                                                                      

"the  pilot,  the  carriers,  or  the  manufacturers."                                 Palmer,  818  P.3d  at  634  (quoting  

                                                                                                                                              

 Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978)). That same reasoning does  

                                                                                                                                                

not apply here: the obvious cause of child sexual abuse is the intentional action of the  

                                                                                                                                                

abuser, and there is no evidence at this juncture suggesting that such abuse does not  

                                                                                                                         

normally occur in foster homes absent negligence by the supervisory agency.  



            27         Reasner  also  asserts  other  grounds  for  tolling  the  two-year  statute  of  

                                                                                                                                                 

limitations in her case, including mental incompetency under AS 09.10.140(a) and that  

                                                                                                                                               

she did not connect her sexual abuse to her psychological injuries until she resumed  

                                                                                                                                       

counseling in 2011.  OCS argues that these arguments were waived because Reasner  

                                                                                                                                        

failed to raise them in a timely fashion.  But even if Reasner waived those alternative  

                                                                                                                                   

tolling grounds for the sake of the present appeal, she is still free to raise them on  

                                                                                                                                                 

remand, and thus we do not need to reach those arguments.  

                                                                                    



                                                                       -10-                                                                 7171
  


----------------------- Page 11-----------------------

                                                                                                                                           28  

five listed felony offenses, including felony sexual abuse of a minor.                                                                          The question we              



must resolve is whether Reasner's suit against OCS is "for conduct" that amounted to                                                                     



felony sexual abuse of a minor.                                    

                                                                                                                                                                      29   We  

                            We review a superior court's interpretation of a statute de novo.                                                                              



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  

                                                                                                                                                                      



              28            AS  09.10.065(a)  (emphasis  added).  



              29            Girdwood  Mining  Co.  v.  Comsult  LLC,  329  P.3d   194,  197  (Alaska  2014).  



              30           Parson   v.   State,  Dep't.   of  Revenue,  Alaska  Hous.  Fin.   Corp.,   189   P.3d  



 1032,   1036  (Alaska  2008).   



              31            State,  Commercial  Fisheries  Entry  Comm'n  v.  Carlson,  270  P.3d  755,  762  



(Alaska   2012)   (alteration   in   original)   (quoting   Gov't   Emps.   Ins.   Co.   v.   Graham- 

Gonzalez,   107  P.3d  279,  284  (Alaska  2005)).  



                                                                                     -11-                                                                               7171
  


----------------------- Page 12-----------------------

                                                                  32  

 sexual abuse of a minor.                                               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  

                                                33      According to Reasner this change indicates a legislative intent to  

AS 09.10.065(a).                                                                                                                                                                                                                       



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  

                                                                                                                                                                                                                                        

                                                                                                                                                                                                                            34   and  

meaningful indication that the [legislature] was not charting a radical course,"                                                                                                                                                  

                                                                                                                                                                                                     



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  

                                                                                                                                                                                                                



                  32                 See AS 11.41.434, .436, and .438.  In  Catholic Bishop  we left undecided                                                                                                  



the similar question whether AS09.10.065(a) applies to vicarious liability claims against                                                                                                                                 

non-perpetrators.   Catholic Bishop of N. Alaska v. Does 1-6                                                                                                     , 141 P.3d 719, 722 (Alaska                            

2006).  That issue is not raised by this case because Reasner is suing OCS for its own                                                                                                                                          

negligent conduct, not under a theory of vicarious liability.                                                                                                      



                  33                 See former AS 09.10.060(c) (2000).  

                                                                                                                                          



                  34                 Glover v. State, Dep't of Transp., Alaska Marine Highway Sys., 175 P.3d  

                                                                                                                                                                                                                                

 1240, 1248-49 (Alaska 2008) (emphasis in original).  

                                                                                                                        



                  35                 See  Ch. 86,  1, SLA 2001; Ch. 40,  1, SLA 2003; see also Catholic  

                                                                                                                                                                                                                    

Bishop, 141 P.3d at 722-23 (discussing the legislative history of AS 09.10.065).  

                                                                                                                                                                                            



                                                                                                                 -12-                                                                                                          7171
  


----------------------- Page 13-----------------------

                                                 36  

victims' access to courts.                            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                                                                   

                                                                                                                 37    We therefore conclude that  

courts in other jurisdictions interpreting similar statutes.                                                                                       



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  her  as-applied  

                                                                                                                                                       

                                        constitutional challenge.  

                                                                       



                           OCS argued below that even if Reasner's claims were timely under the  

                                                                                                                                                                        



discovery rule or under AS 09.10.065(a), Alaska's statute of repose would still bar them.  

                                                                                                                                                                                



Alaska's statute of repose extinguishes all personal injury actions (subject to certain  

                                                                                                                                                                



exceptions) unless commenced within ten years of "the last act alleged to have caused  

                                                                                                                                                

the personal injury."38  

                                                                                                                                                                        

                                              The superior court rejected OCS's argument, concluding that the  



                                                                                                                                                                    

statute of repose was unconstitutional as applied to "facts in which the child's legal  



                                                                                                                                                                       

custodians are the alleged tortfeasors" because it would deny minors access to courts and  



             36            See  Minutes, H. Jud. Comm. Hearing on H.B. 210, 22nd Leg., 1st Sess.                                                                    



(Apr.   9,   2001)   (comments   by   Representative   Ethan   Berkowitz   and   the   Executive  

Director of the Council on Domestic Violence and Sexual Assault).                                                                        



             37            See, e.g., Sandoval v. Archdiocese of Denver, 8 P.3d 598, 602 (Colo. App.  

                                                                                                                                                                    

2000)  (holding  that an  analogous Colorado  statute does not encompass actions for  

                                                                                                                                                                       

negligent hiring or supervision by an employer); Kelly v. Marcantonio, 678 A.2d 873,  

                                                                                                                    

875-76 (R.I. 1996) (holding that an analogous Rhode Island statute only applies to  

                                                                                                                                                                          

actions against the perpetrator).  

                                       



             38            AS 09.10.055(a)(2).  

                                   



                                                                                   -13-	                                                                            7171
  


----------------------- Page 14-----------------------

                                                                                     39  

therefore   violate   due   process.                                                         But   the   superior   court   never   made   an   initial  



determination that the statute of repose actually would bar Reasner's claims.                                                                                                                              



                                   For a statute to be unconstitutional as applied to a particular set of facts, the                                                                                                        



statute must                     actually apply                        to those facts.                        The United States Supreme Court has called                                                            



it "an uncontroversial principle of constitutional adjudication . . . that aplaintiff 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 [her]."                           40  



                                   Here,  however,  it  is  possible  that  the  statute  of  repose  does  not  bar  

                                                                                                                                                                                                                          



Reasner's claims or only bars some of them.  First, the statute of repose requires claims  

                                                                                                                                                                                                                   



to be filed within ten years of "the last act alleged to have caused the personal injury,  

                                                                                                                                                                                         

death, or property damage."41                                                      Reasner brought her claim on December 3, 2012, and  

                                                                                                                                                                                                                          



alleges that OCS received reports that she was being sexually abused in 2004 and 2006  

                                                                                                                                                                                                                       



- less than ten years before she sued - and negligently failed to protect her.  Second,  

                                                                                                                                                                                                              

                                                                                                                                         42   Reasner argues that even if OCS  

the effective date of AS 09.10.055 is August 7, 1997.                                                                                                                                                                  

                                                                                                                           



did not commit any negligent acts after December 2002, she would still be able to  

                                                                                                                                                                                                                              



                  39               Wenotethatthis conclusion goes beyond our previousholdings.                                                                                                            SeeSands   



ex rel. Sands v. Green                                   , 156 P.3d 1130, 1133-36 (Alaska 2007) (striking down a statutory                                                                                 

provision excluding children under the age of eight from the broad tolling provisions                                                                                                                   

granted to other minors, but not addressing the constitutionality of the statute of repose)                                                                                                                                      ;  

Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067-68 (Alaska 2002) (plurality opinion)  

                                                                                                                                                                                                         

(holding Alaska's statute of repose facially constitutional in response to equal protection  

                                                                              

and due process challenges).  



                  40               McCullen  v.  Coakley,  134  S.  Ct.  2518,  2534  n.4  (2014)  (emphasis  in  

                                                                                                                                                                                                                              

original); cf. Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                                                                                  

309 P.3d 1262, 1268 (Alaska 2013) ("An as-applied challenge requires evaluation of the  

                                                                                                                                                                                                                            

facts of the particular case in which the challenge arises.").  

                                                                                                                                    



                  41               AS 09.10.055(a)(2).  

                                                                                          



                  42               Ch. 26,  55, SLA 1997.  

                                                                                     



                                                                                                             -14-                                                                                                      7171
  


----------------------- Page 15-----------------------

proceed with her claims based on multiple acts prior to AS 09.10.055's effective date.                                                                                                                                                                                                                                   



Finally, AS 09.10.055(b)(1) provides that the statute of repose does not apply when the                                                                                                                                                                                                                   



damages resulted from, among other things, gross negligence, misrepresentation, or                                                                                                                                                                                                                          



breach of fiduciary duty. Reasner argues that those three exceptions are applicable to her                                                                                                                                                                                                                



case.   



                                                Because   the   superior   court   decided   that   the   statute   of   repose   was  



unconstitutional as applied to Reasner's claims without first deciding whether the statute                                                                                                                                                                                                     



actually applied to those claims, we reverse that portion of the superior court's order.                                                                                                                                                                                                                                 



On remand, the superior court should determine whether the statute of repose applies to                                                                                                                                                                                                                       



Reasner's case before it considers Reasner's as-applied constitutional challenge.                                                                                                                                                                          



                        B.	                     Whether   Reasner's   Claims   Survive   Summary   Judgment   On   The  

                                                Merits  



                                                1.	                     Discretionary function immunity                                                         

                                                                                                                                                                                                                                                                                                  43  but  

                                                The Alaska Tort Claims Act authorizes tort claims against the State,                                                                                                                                                                                      



the State is immune from claims "based upon the exercise or performance or the failure  

                                                                                                                                                                                                                                                                                              



to exercise or perform a discretionary function or duty on the part of a state agency or  

                                                                                                                                                                                                                  

an employee of the state, whether or not the discretion involved is abused."44                                                                                                                                                                                                                As we  

                                                                                                                                                                                                                                                                                            



have previously stated, "[t]wo varieties ofagency action arenot covered by discretionary  

                                                                                                                                                                                                                                                                       



                        43                      AS  09.50.250.  



                        44                      AS  09.50.250(1)  (emphasis  added).  



                                                                                                                                                    -15-                                                                                                                                                           7171  


----------------------- Page 16-----------------------

function immunity:               those involving no discretion and those involving 'only discretion                        



                                                           45  

free   from   policy  considerations.'   "                                                                                             

                                                                 "Whether  a  governmental  act  is  entitled  to  



                                                                                                                                 46  

                                                                                                                       

discretionary function immunity is . . . a matter of law that is reviewed de novo." 



                                                                                                                           

                                a.	        OCS  is  not  generally  immune  from  suit  for  negligent  

                                           investigation.  



                                                                                                                                

                     One of Reasner's claims is that OCS negligently investigated the reports  



                                                                                                                            

that she was being sexually abused. OCS argues that it is immune from suit for negligent  



                                                                                                                                      

investigation because social worker investigations involve the use of discretion and are  



                                                                                                                          

therefore protected by discretionary function immunity.   But as we have previously  



                                                                                                                           

explained, " 'the allegedly negligent decisions in a particular case must be examined  



                                                                                                                                       47  

                                                                                                                                            

individually to determine if they are' protected by discretionary function immunity." 



                                                                                                                          

The superior court did that in this case, and OCS has not challenged its individual  



                                                                                                          

determinations.  We therefore turn to Reasner's argument on this point.  



                                                                                                                          

                                b.	        OCS was not entitled to summary judgment on Reasner's  

                                                                                                                          

                                           claims   that   OCS   failed   to   maintain   the   requisite  

                                                                                                          

                                           "minimum contacts" with her foster family.  



                                                                                                                                     

                     Thesuperior court grantedOCSsummary judgmentonReasner'sclaimthat  



                                                                                                                      

OCS had failed to conduct the requisite number of home visits while she was in foster  



                                                                                                                                    

care, because it found  that  OCS's policy governing such "minimum contacts" was  



                                                                                                                                     

protected by discretionary function immunity.  Reasner argues that this conclusion was  



           45        State,   Dep't   of   Health   &   Soc.   Servs.  v.   Mullins,   328   P.3d   1038,   1043  



(Alaska  2014)  (quoting  R.E.  v.  State,  878  P.2d   1341,   1349  (Alaska   1994)).    



           46        State,  Dep't  of  Corr.  v.  Cowles,   151  P.3d  353,  358  (Alaska  2006).   



           47        Mullins,  328  P.3d  at  1044  (emphasis  added)  (quoting  Cowles,  151  P.3d  at  



359).   



                                                                  -16-	                                                           7171
  


----------------------- Page 17-----------------------

erroneous with respect to the OCS policy in place between January 1998 and April 1999.                                                                                                                                                         



We agree with Reasner.                    



                                     OCS amended its policy governing minimum contacts with foster families                                                                                                            



in January 1998.                                Before that date OCS's policy required OCS to conduct at least one                                                                                                                 



face-to-face family contact every three months, and "in-home contacts to family [were]                                                                                                                                     



required  in addition to placement contacts with the child."                                                                                                              But OCS's policy also                                  



provided   that "[a]ctual delivery                                                         of this minimum service level [was] dependent                                                                                             on  



workload size."                              Given this "workload size" caveat, the superior court determined that                                                                                                                



OCS   was   protected  by   discretionary   function   immunity   under   the   pre-1998   policy  



                                                                                                                                                                                                                          48  

because "the actual number of contacts is discretionary rather than mandatory."                                                                                                                                                 



                                     When OCS amended the policy in January 1998 it retained the requirement  

                                                                                                                                                                                                            



of "in-home contacts to family . . . in addition to placement contacts with the child." But  

                                                                                                                                                                                                                                   



it omitted the "workload size" caveat and allowed "[c]hanges in service level [to] be  

                                                                                                                                                                                                                                      



made only after a service level review."  Reasner argues that OCS is not protected by  

                                                                                                                                                                                                                                     



discretionary function immunity under the post-1998 policy and that, because this new  

                                                                                                                                                                                                                                 



policy was in effect for the last five quarters that she was in OCS's legal custody, she  

                                                                                                                                                                                                          



should be allowed to proceed on her negligent investigation claim.  

                                                                                                                                                                                        



                                     We agree. The post-1998 policy language allows for either "no discretion"  

                                                                                                                                                                                                               



or  "only  discretion  free  from policy  considerations,"  at  least  until  a  "service  level  

                                                                                                                                                                                                                              

review" has been conducted.49  Because this new policy was in effect for a period of time  

                                                                                                                                                                                                                                 



during which OCS had legal custody of Reasner, she should have been allowed to  

                                                                                                                                                                                                              



proceed on her negligent investigation claim.  

                                                                                                           



                  48                 Reasner has not challenged the superior court's conclusion and we do not                                                                                                                       



address the court's ruling on that point.                                                                     



                  49                Mullins, 328 P.3d at 1043 (quoting R.E., 878 P.2d at 1349).  

                                                                                                                                                                                      



                                                                                                                 -17-                                                                                                          7171
  


----------------------- Page 18-----------------------

                               c.	       Reasner  has  not  challenged  the  actual  grounds  of  the  

                                                                                                                              

                                         superior  court's  grant  of  summary  judgment  on  her  

                                                                                                                              

                                         ICWA-related claims.   



                    Reasner also asserted belowthatOCS has policies and procedures adopting  

                                                                                                                       



provisions of the Indian Child Welfare Act (ICWA) and that her OCS caseworkers failed  

                                                                                                                            



to follow these policies.  The superior court found that OCS's "adoption of policies and  

                                                                                                                               



procedures intended to implement ICWA requirements represent[s] its efforts to balance  

                                                                                                                         



the requirements of federal law with state economic and political policy factors" and that  

                                                                                                                               



a violation of those policies was therefore protected by discretionary function immunity.  

                                                                                                                                     



The superior court was careful to note that it was only ruling on Reasner's specific  

                                                                                                                        



claims  and  that  "[i]t  is  possible  that  there  are  claims  regarding  violation  of  OCS  

                                                                                                                            



procedures implementing ICWA that would not be protected by discretionary function  

                                                                                                                       



immunity."  

                    



                     On appeal Reasner argues that this was error because she is merely alleging  

                                                                                                                        



"astraightforwardnegligenceclaimagainstOCSandcit[ing]OCS's violations ofthelaw  

                                                                                                                               



as evidence of OCS's negligence."  She therefore argues that the superior court erred in  

                                                                                                                                 



granting summary judgment to OCS "on the ground that these authorities do not create  

                                                                                                                           



a direct cause of action."  

                                        



                    But  as  we  have  just  explained,  the  superior  court  granted  summary  

                                                                                                                     



judgment to OCS on Reasner's ICWA-related claims because it found that OCS is  

                                                                                                                                 



protected by discretionary function immunity, not because the claims do not create a  

                                                                                                                                  



direct  cause  of  action.              Absent  a  passing  assertion  in  her  reply  brief  that  "OCS  

                                                                                                                          



incorporated provisions of [ICWA] into mandatory policy," Reasner has not challenged  

                                                                                                                    



the actual basis for the superior court's decision.   We therefore affirm the superior  

                                                                                                                       



court's grant of summary judgment to OCS on Reasner's ICWA-related claims, but we  

                                                                                                                                



                                                               -18-	                                                        7171
  


----------------------- Page 19-----------------------

express   no   opinion   whether   the   superior   court   was   substantively   correct   when   it  



determined that OCS is protected from those claims by discretionary function immunity.                                                                       



                           2.	           There is a genuine dispute whether Reasner's foster parents                                                             

                                         completed the required training                                       .  



                           Reasner alleged that OCS negligently monitored the foster home in part                                                                         



because   it   did   not   require   her   foster   parents   to   complete   mandatory   foster   parent  

                                                                                      50     The superior  court granted OCS partial  

orientation or follow-up annual training.                                                                                                                           



summary judgment on this claim because it found that Reasner "ha[d] not provided any  

                                                                                                                                                                           



evidence that the required orientation and trainings did not occur."  We disagree.  

                                                                                                                                                    



                           As we have explained above, a court must construe all reasonable factual  

                                                                                                                                                                    

inferences in favor of the non-moving party.51  "[S]ummary judgment is appropriate only  

                                                                                                                                                                         

when no reasonable person could discern a genuine factual dispute on a material issue."52  

                                                                                                                                                                                    



Here, Reasner presented the Allisons' training record from Alaska Center for Resource  

                                                                                                                                                               



Families, which indicated that the Allisons had not completed the necessary training at  

                                                                                                                                                                              



that  facility.               Reasner  also  presented  evidence  from  a  1998  adoption  home  study  

                                                                                                                                                                      



indicating that the Allisons "ha[d] been slow to become comfortable with [support]  

                                                                                                                                                              



services."  Finally, Reasner provided an internal OCS email from January 1998 stating  

                                                                                                                                                                    



"[o]ne of the items we are planning is to require that [the Allisons] go to our adoption  

                                                                                                                                            



preparation series.  They have been invited a number [of] time[s] over the past years.  

                                                                                                                                                                                    



When they have attended, they have only come for one session, so they have never  

                                                                                                                                                                      



completed the series."  OCS, on the other hand, presented no direct evidence showing  

                                                                                                    



that the Allisons had actually completed the training and admitted that the Allisons'  

                                                                                                                                                              



              50           See  former 7 AAC 50.433 (1990).                        



              51            Christensenv. Alaska Sales &Serv., Inc.                                         , 335 P.3d 514, 520 (Alaska2014).                        



              52           Id.  



                                                                                     -19-	                                                                             7171
  


----------------------- Page 20-----------------------

licensing file was no longer available because it had been purged three years before "as                                                                                                                                                                                                                                                      



part of OCS's routine file retention policy."                                                                                                                                    



                                                     Under Alaska's lenient standard for surviving summary judgment, there is                                                                                                                                                                                                                       



a genuine dispute as to whether the Allisons had completed the required courses and                                                                                                                                                                                                                      



training.   Summary judgment on this issue was therefore inappropriate.                                                                                                                                                              



                                                      3.	                       The   superior   court   correctly   concluded   that   OCS   was  not  

                                                                                 entitled to summary judgment as to causation.                                                                                                             



                                                      On cross-appeal OCS argues that Reasner failed to demonstrate a causal                                                                                                                                                                                                 



nexus between OCS's failure to require the Allisons to complete the required training                                                                                                                                                                                                                                      



and   Reasner's   harm.     But   reasonable   inferences   from   the   admissible   evidence  



demonstrate a dispute as to this causal connection.                                                                                                                                                            For example, a reasonable person                                                                                



could infer that if the Allisons had completed the required training, they would have been                                                                                                                                                                                                                                              



able   to   identify   warning   signs   of   sexual   abuse   and   taken   steps   to   protect   Reasner.   



Furthermore, if the Allisons did fail to complete the required training, then OCS might                                                                                                                                                                                                                                            



have been required to remove Reasner from their home because a foster home must be                                                                                                                                                                                                                                                               



licensed every two years.                                                                               Given these possible inferences, a reasonable person could                                                                                                                                                                 



discern a genuine factual dispute as to whether OCS's failure to remove Reasner was                                                                                                                                                                                                                                                       

also a proximate cause of her harm.                                                                                                            53  



                                                      We also reject OCS's argument that its failure to make quarterly in-person  

                                                                                                                                                                                                                                                                                                                     



visits between January 1998 and April 1999 lacks a causal nexus with Reasner's harm.  

                                                                                                                                                                                                                                                                                                                                                               



The superior court found that "[r]easonable jurors could conclude that 'but for' the lack  

                                                                                                                                                                                                                                                                                                                                          



of contact, OCS would have become aware that Ms. Reasner was being abused and/or  

                                                                                                                    



that it would have more fully investigated the reports that she was being sexually and/or  

                                                                                                                                                                                                                                                                                                                                 



physically abused, which could have resulted in OCS substantiating the reports and  

                                                                                                                                                                                                                                                                                                                                           



                           53  

                                                                     

                                                      See id.  



                                                                                                                                                                      -20-	                                                                                                                                                                              7171  


----------------------- Page 21-----------------------

 taking action to protect her from harm."                                                       Although the superior court's analysis should                                              



have focused on whether a reasonable person could discern a factual dispute, and not on                                                                                                              

                                                                                                                      54  we agree with the superior court's  

whether a reasonable juror could find for Reasner,                                                                                                                                         



ultimate conclusion that summary judgment on the issue of causation was inappropriate.  

                                                                                                                                                                           



 IV.            CONCLUSION  



                                For the reasons stated above, we REVERSE the superior court's summary  

                                                                                                                                                                                     



judgment order in part and REMAND for proceedings consistent with this opinion.  

                                                                                                                                                                                



                54              See id. at 520-21.  

                                                       



                                                                                                 -21-                                                                                                  7171  

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