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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Raymond Dapo v. State of Alaska, Office of Children's Services and Taun Lucas (12/13/2019) sp-7423

Raymond Dapo v. State of Alaska, Office of Children's Services and Taun Lucas (12/13/2019) sp-7423

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                       

RAYMOND  DAPO,                                                   )  

                                                                 )    Supreme  Court  No.  S-17139  

                                Appellant,                       )  


                                                                      Superior Court No. 4FA-15-01892 CI  

           v.                                                    )  


                                                                      O P I N I O N  


STATE OF ALASKA, OFFICE OF                                       )  



CHILDREN'S SERVICES and TAUN  )                                       No. 7423 - December  13, 2019  

LUCAS,                                                           )  


                                Appellees.                       )  




                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                     Fourth Judicial District, Fairbanks, Michael P. McConahy,  



                     Appearances:  Michael C. Kramer and Robert John, Kramer  


                     and Associates, Fairbanks,for Appellant. AishaTinker Bray,  


                     AssistantAttorneyGeneral, Fairbanks, and JahnaLindemuth,  


                     Attorney  General,  Juneau,  for  Appellee  State  of  Alaska,  


                     Office of Children's Services.  No appearance by Appellee  


                     Taun Lucas.  


                     Before:          Bolger,  Chief  Justice,  Winfree,  Stowers,  and  


                     Maassen, Justices.  [Carney, Justice, not participating.]  


                     MAASSEN, Justice.  



                     A young man filed suit against his adoptive mother for sexual abuse that  

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

allegedly occurred 13 years earlier, shortly after he was adopted.                                                                                                                                               The adoptive mother                          

filed    a    third-party    claim    against    the    Office    of    Children's    Services    (OCS)    for  

apportionment of fault and assigned the claim to the man in exchange for his agreement                                                                                                                                                              

to release her from liability.                                

                                           The superior court granted OCS's motion to dismiss the apportionment                                                                                                                       

claim, holding that it was barred by the ten-year statute of repose, AS 09.10.055(a). The                                                                                                                                                                                

man appeals.                                We hold that the statute of repose applies to the apportionment claim and                                                                                                                                                     

is not unconstitutional as applied.                                                                          However, we also decide that there are issues of fact                                                                                                       

regarding the applicability of two exceptions to the statute of repose:  claims for gross                                                                                                             

negligence and claims for breaches of fiduciary duty. We therefore reverse the superior                                                                                                                                                                    

court's   order   dismissing   the   apportionment   claim   and   remand   the   case   for   further  


II.                   FACTS AND PROCEEDINGS                          

                     A.                    Facts  

                                                                                                                                                                                1  took custody of him ten years  

                                           Raymond Dapo was born in 1990.                                                                                    OCS                                                                                                    

later and, in April 2000, placed him in Taun Lucas's foster  home.   Lucas and her  


husband David legally adopted Dapo in May 2002.  According to Dapo, Lucas began  


sexually abusing him shortly thereafter; Lucas, however, alleged that she was sexually  


abused by Dapo, and Dapo, then 11 years old, was arrested and charged with two counts  


of first-degree sexual assault.   The charges were eventually dropped, and Dapo was  


returned to the custody of the State as a dependent child.  


                      1                    The responsible agency at the time was the Division of Family and Youth                                                                                                                                               

 Services   (DFYS),   OCS's   predecessor.     We   generally   use   the   acronym   OCS   for  

consistency and ease of reference.                                            

                                                                                                                                      -2-                                                                                                                             7423

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

          B.        Proceedings  

                    Dapo reached the age of majority on September 5, 2008. On May 19, 2015,  


when he was 24 years old, Dapo filed a complaint against Lucas alleging that she had  


sexually abused him while he was a minor. In September 2015 Lucas filed a third-party  


claim against OCS for apportionment of fault, contending that OCS "had a duty to  


protect" Dapo and "negligently failed to protect" him.  A month earlier she assigned to  


Dapo any rights she might have to recover on the apportionment claim in exchange for  


a complete release from liability for his sexual abuse claims against her.  


                    OCS moved to dismiss Lucas's third-party claim on grounds that it was  


barred by Alaska's ten-year statute of repose, AS 09.10.055.  The superior court denied  


the motion.  The court concluded that the statute of repose did not apply, incorporating  


the reasoning of a summary judgment order in an earlier case in which the superior court  


had held that "[t]he statute of repose, as applied to facts in which the child's legal  


custodians are the alleged tortfeasors, is unconstitutional." We subsequently vacated the  


summary judgment order in that earlier case in a published opinion.2                                      We then granted  


a petition for review on the statute of repose issue in Dapo's case, vacated the superior  


court's order, and remanded the case.  Based on our earlier decision, we instructed the  


superior court to first determine whether the statute of repose applied to Dapo's claims  


and only then consider whether the statute was unconstitutional as applied.  


                    On remand, the superior court held that the statute of repose "applies to and  


bars the third-party allocation of fault claim against OCS.  The statute of repose is also  


not facially unconstitutional nor unconstitutional as applied to the third-party allocation  




                    Reasner v. State, Dep't of Health & Social Servs., Office of Children's  


Servs., 394 P.3d 610, 618 (Alaska 2017).  

                                                                -3-                                                             7423  

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

of fault claim against OCS in this case."                                           The court dismissed all claims against OCS                                      

with prejudice.                 Dapo now appeals.      

III.          STANDARD OF REVIEW                    

                                                                                                                              3   Summary judgment is  

                           We review a grant of summary judgment de novo.                                                                                                  

appropriate when "no genuine issues of material fact exist and where the moving party  


                                                                                          4    When ruling on a summary judgment  

is entitled to judgment as a matter of law."                                                                                                              


motion, we view the facts in the light most favorable to the non-moving party.5  


                           Weinterpret statutes "according toreason, practicality,and common sense,  


taking into account the plain meaning and purpose of the law as well as the intent of the  


drafters."6   "A presumption of constitutionality applies, and doubts are resolved in favor  


of constitutionality."7  


IV.           DISCUSSION  

                           Alaska's statute of repose, AS 09.10.055, bars "an action for personal  


injury, death, or property damage unless commenced within 10 years of . . . the last act  


alleged to have caused the personal injury, death, or property damage."8  The statute lists  


a number of exceptions, including, as relevant here, when the personal injury resulted  


              3            Rathke v. Corr. Corp. of Am.                                , 153 P.3d 303, 308 (Alaska 2007) (citing                                

Midgett v. Cook Inlet Pre-Trial Facility                                        , 53 P.3d 1105, 1110 (Alaska 2002)).                        

              4            Id.   

              5            Cabana  v.  Kenai  Peninsula  Borough,  50  P.3d  798,  801  (Alaska  2002).  

              6            Marathon  Oil  Co.  v.  State,  Dep't  of  Nat.  Res.,  254  P.3d  1078,  1082  (Alaska  

2011)  (quoting  Native   Vill.  of  Elim  v.  State,  990  P.2d   1,  5  (Alaska   1999)).  

              7            State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001) (quoting  


Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)).  


              8            AS  09.10.055(a)(2).                           Subsection  (a)(1)  focuses  on  claims  involving  


allegedly defective construction and is not applicable here.  


                                                                                    -4-                                                                            7423

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

                                                                        9                                                                10  

from "an intentional act or gross negligence"                             or a "breach of trust or fiduciary duty."                           


                      Theparties agreethat thestatute of repose does not bar Dapo's sexual abuse  


claim against Lucas, both because of the "intentional act" exception and, separately,  


because AS 09.10.065(a) allows "[a] person [to] bring an action at any time for conduct  


that would have, at the time the conduct occurred," constituted various sexual offenses,  


including "felony sexual abuse of a minor," "felony sexual assault," and "unlawful  


exploitation  of  a  minor."                  The  conduct  alleged  by  Dapo  falls  within  the  scope  of  



AS 09.10.065(a), which therefore lifts the time bar for his claim against Lucas. 

                      The parties' dispute centers on whether the statute of repose bars Lucas's  


third-party claim for apportionment against OCS.  The superior court held that it did.  


Dapo, as assignee of that claim, argues that the statute does not apply because of rules  


of statutory interpretation and the rationale of our decision in Alaska General Alarm, Inc.  


v. Grinnell, in which we discussed apportionment claims in the context of statutes of  


                 12  Dapo argues in the alternative that if the statute of repose does apply, the  


apportionment claim falls within the statute's exceptions for claims involving gross  


negligence and breach of fiduciary duty.  Finally, he argues that if the statute of repose  


otherwise applies, it is unconstitutional as applied because it denies him access to the  


courts.  We discuss each argument in turn.  


           9          AS  09.10.055(b)(1)(B).  

           10         AS  09.10.055(b)(1)(F).  

           11         First  degree  sexual  abuse  of  a  minor,  a  felony,  occurs  if  the  offender  is   18  

years or older  and  "engages  in  sexual  penetration with a person who is under   18 years  

of  age,  and  the  offender  is  the  victim's  natural  parent,  stepparent,  adopted  parent,  or  legal  

guardian."   AS  11.41.434(a)(2).   Dapo  alleges  that  Lucas  forced  him  to  engage  in  sexual  

intercourse  shortly  after  she  adopted  him,  when  he  was   11  or   12  years  old.  

           12         1 P.3d 98 (Alaska 2000).  


                                                                    -5-                                                             7423

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           A.	         The Statute Of Repose For The Underlying Claim Applies To The                                                          

                       Apportionment Claim As Well.                                

                       Dapo argues that the statute of repose does not bar apportionment claims                 

because it is specifically                    limited   to   actions "for              personal injury,              death, or        property  



                    conspicuously omitting claims for apportionment.  The question we must  


answer is whether a claim for the apportionment of personal injury damages constitutes  


"an action for personal injury" as that phrase is used in the statute.  Dapo contends that  


we should apply the doctrine of expressio unius est exclusio alterius - "where certain  



things are designated in a statute, all omissions should be understood as exclusions." 


                       But the legislature has indicated its intent that apportionment claims based  


on "personal injury, death, or property damage" be subject to the statute of repose.  


Alaska Statute 09.17.080(a) governs apportionment of damages.  It requires the trial  


court to  


                       instruct the jury to answer special interrogatories or, if there  


                       is no jury, [to] make findings, indicating . . . the percentage  


                       of the total fault that is allocated to each claimant, defendant,  


                       third-party defendant, person who has been released from  


                       liability, or other person responsible for the damages unless  


                       the person was identified as a potentially responsible person,  


                       the person is not a person protected from a civil action under  


                       AS 09.10.055  [the statute of repose], and the parties had a  


                       sufficient opportunity to join that person in the action but  


                       chose not to . . . .  [Emphasis added.]  


In other words, "a potentially responsible person" should be joined as a party unless  


"protected from a civil action under" the statute of repose, in which case - the statute  


assumes  -  the  person  cannot  be  joined.                                   But  to  ensure  that  the  named  parties'  

            13         AS 09.10.055(a).   



                       Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991)  


(quoting Puller v. Municipality of Anchorage, 574 P.2d 1285, 1287 (Alaska 1978)).  

                                                                        -6-	                                                                7423

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

percentages   of   fault   may   be   accurately   determined,   fault   may   be   allocated   to   "a  

potentially responsible person" who cannot be joined as a party because the person                                                                                                  is  

"protected from a civil action under" the statute of repose - though this does not result                                                                                    


in a judgment against the "protected" person.                                                            

                            Theapportionment statutethus specifically acknowledges thatpersonswho  


would otherwise be "responsible for the damages" on an apportionment claim may be  


persons "protected from a civil action" by the statute of repose.   Legislative history  


confirms that the legislature was aware of the interplay between the statute of repose and  


apportionment claims. Discussing the1997Tort ReformInitiative -which both created  


the          apportionment                          statute              and           substantially                       revised               the          statute              of  


repose16  - Representative Davies stressed to the House Finance Committee that "the  


statute of repose removes certain people from responsibility. . . .  [I]f a person is barred  


from being brought to the table by the statute of repose . . . they cannot be apportioned  


                                                17   Dapo directs us to no contrary legislative history.  

a portion of the fault."                                                                                                                                        


              15            AS09.17.080(c) ("[A]n                              assessment ofapercentageoffault againstaperson                                             

who   is   not   a   party   may   only   be   used   as   a   measure   for   accurately   determining   the  

percentages of fault of a named party.                                               Assessment of a percentage of fault against a                                                    

person who is not a party does not subject that person to civil liability in that action and                                                                                     

may not be used as evidence of civil liability in another action.").                                                    

              16            See Evans ex rel. Kutch v. State, 56 P.3d 1046, 1048-49 (Alaska 2002)  


(listing challenged "tort reform provisions" of chapter 26, SLA 1997, including "the  


comparativeapportionment ofdamages under AS09.17.080"and "the'statuteofrepose'  


under AS 09.10.055");  id. at 1067-68 ("Chapter 26, SLA 1997 altered the statute of  


repose, which formerly applied only to actions based on injuries in connection with  


improvements to real property, and shortened the period from fifteen to ten years."  


(citations omitted)).  


              17            Minutes, H. Fin. Comm. Hearing on H.B. 58, 20th Leg., 1st Sess. Tape  


HFC 97-61, Side 1 (Mar. 14, 1997) (statement of Rep. J. Davies).  


                                                                                         -7-                                                                                 7423

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

                        Dapo   argues,   however,   that   the   statute   of   repose   should   not   apply   to  

Lucas's apportionment claim because of the rationale of                                              Alaska General Alarm, Inc. v.                      



Grinnell.             In that case, observing that "third-party actions [for apportionment] are  


traditionally deemed to accrue upon judgment or settlement" of the underlying claim, we  


held that the statute of limitations governing the underlying claim "should not bar the  



liability of third-party defendants to the plaintiff for their share of fault."                                                    We reasoned  


that if the statute of limitations barred third-party liability, then defendants would have  


incentive to wait until after the limitations period expired before joining third parties,  


thereby allowing "empty chair defendants" - that is, defendants in name only who  


could be blamed but who could not be made to pay damages - and frustrating the  



plaintiff's recovery.                     We  also  reasoned that Alaska Civil Rules 14(a) and (c), by  


allowing a defendant to file a third-party apportionment claim any time after the action  



commenced, "were intended to be neutral on the statute of limitations question." 


                        AlaskaGeneralAlarm wasconcerned withthestatuteoflimitations, not the  


statute of repose, and the differences dictate a different result here.   "[A] statute of  


limitation[s] begins to run when the plaintiff's cause of action accrues or is discovered,"  


whereas the statute of repose "may bar a cause of action before it accrues" because the  


statute of repose begins to run from "the last act alleged to have caused the personal  



injury."           The statute of limitations, though of fixed duration, is still shaped by a case's  

            18          1 P.3d 98 (Alaska 2000).

            19          Id.  at 104, 106.

         Id. at 102-03.  


            21          Id. at 106 n.46.  


            22          Turner  Constr.  Co.  v.  Scales,  752  P.2d  467,  469  n.2  (Alaska  1988)  



                                                                           -8-                                                                    7423

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

circumstances, beginning to run only when a person "discovers, or reasonably should                                                                       

have discovered, the existence of all elements essential to the cause of action" under the                                                                       

                              23    The  statute  of  repose,  on  the  other  hand,  "intends  to  completely  

discovery   rule.                                                                                                                                

extinguish a defendant's liability upon the expiration of a certain, set period of time"24  


and is meant to act as "an absolute bar"25 to liability; potential defendants are afforded  


peace of mind after a set amount of time regardless of whether the prospective plaintiff's  


cause of action has accrued.26  


                          Given the language of the relevant statutes, legislative history, and the  


recognized differences between statutes of repose and statutes of limitation, we conclude  


that the statute of repose bars an apportionment claim seeking to apportion fault "for  


personal injury, death, or property damage" at the same time it would bar the underlying  


claim.  Here, the last act alleged to have caused Dapo's personal injury occurred before  


the police took him into custody on September 7, 2002.  Lucas's 2015 apportionment  


claim against OCS is barred by the ten-year statute of repose - unless it falls within one  


of the statute's exceptions, which we address next.  


             22           (...continued)  


(emphasis added); AS 09.10.055(a).  

             23          John's Heating Serv. v. Lamb                              , 129 P.3d 919, 923 (Alaska 2006) (quoting                          

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

             24           Sands  ex  rel.  Sands  v.  Green,  156  P.3d  1130,  1137  (Alaska  2007)  


(Eastaugh, J., dissenting).  


             25           Minutes, H. Judiciary Standing Comm. Hearing on H.B. 58, 20th Leg., 1st  


Sess. Tape 97-23, SCA No. 1503 (Feb. 21, 1997) (statement of Rep. Eric Croft).  


             26           See  id.  at  No.  0764  (statement  of  Rep.  Brian  Porter)  (explaining  that  


discovery rule does not apply to statutes of repose because once the statutory period  


"ha[s] been completed, that would be a bar to filing a case").  


                                                                                 -9-                                                                         7423

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

             B.	          WhetherLucas'sApportionmentClaimFalls                                                       WithinAnExceptionTo                          

                          The Statute Of Repose Presents Unresolved Questions Of Fact.                                                            

                          Thestatuteofrepose's listed exceptions includeclaims                                                    in whichthealleged      

"personal injury, death, or property damage resulted from . . . (B) an intentional act or                                              


gross negligence; . . . or (F) breach of trust or fiduciary duty."                                                                                             

                                                                                                                            Dapo argues that both  


exceptions apply because, taking all facts in the light most favorable to him as the non- 



moving party,                  his allegations suffice to show that OCS either was grossly negligent or  



committed a breach of trust or fiduciary duty in causing his injuries from sexual abuse. 


                          1.	          The gross negligence exception  


                          To establish negligence, a party must show "(1) a duty of care; (2) breach  



of the duty; (3) causation; and (4) harm."                                           "Whether a party has a duty of care and, if  



so, the nature and scope of that duty are questions of law." 


                          That OCS owes at least a duty of reasonable care to a child in its custody  


does not appear to be disputed; OCS concedes the existence of a "special relationship"  


in such circumstances. By statute, "a relationship of legal custody exists" between OCS  


and a child in its custody,  

             27           AS  09.10.055(b)(1)(B),  (F).  

             28           See  Cabana  v.  Kenai  Peninsula  Borough,  50  P.3d  798,  801  (Alaska  2002).  

             29           Dapo  does  not  address  the  "intentional  conduct"  exception  until  his  reply  

brief,  so  we  do  not  address  it.   See  Alaska  R.  App.  P.  212(c)(3)  (stating  reply  brief  "may  

raise  no  contentions  not  previously  raised  in  either  the  appellant's  or  appellee's  briefs");  

see also  Conam  Alaska  v.  Bell  Lavalin,  Inc.,  842  P.2d   148,   158  (Alaska   1992) (stating  

we  need  not  consider  theory  first  raised  in  reply  brief).  

             30           Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000).  


             31           Lindsey v. E &E Auto. & Tire Serv., Inc., 241 P.3d 880, 885 (Alaska 2010).  


                                                                                -10-	                                                                         7423

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

                               impos[ing]   on   the   department   .   .   .   the   responsibility   of  

                              physical care and control of the child, the determination of                                                                        

                              where and with whom the child shall live, the right and duty                                                                   

                              to protect, nurture, train, and discipline the child, the duty of                                                                   

                              providing the child with food, shelter, education, and medical                                                          

                               care, and the right and responsibility to make decisions of                                                                        


                               financial significance concerning the child.                                                              

                               The statutory responsibility for determining "where and with whom the  


child  shall  live"  necessarily  requires  that  OCS  carry  out  the  responsibility  non- 


negligently.                    In  R.E.  v.  State  we  held  that  because  DFYS  -  OCS's  predecessor  


agency - had undertaken to license daycare facilities, it "was under a duty to exercise  


reasonable care in carrying out that function," specifically by taking reasonable steps to  


uncover the possibility of sexual abuse.33                                                          In P.G. v. State, Department of Health &  


Human Services, Division of Family & Youth Services, we held that "DFYS stands in a  


special relationship both with children in need of aid who come under its supervision and  


                                                                                                                                                                      34  This meant  

with prospective foster parents whom it seeks to enlist as their custodians."                                                                                                           


that the agency was required "to exercise due care to minimize potential harm by making  


reasonable  efforts  to  gather  and  disclose  facts  necessary  to  give  foster  parents  an  


informed basis for deciding whether to accept" into their home a child with possibly  


dangerous propensities.35                                   These cases direct our conclusion here:  that OCS had a duty  


to exercise reasonable care when placing Dapo in foster care with the Lucases and  


approving his adoption.  


               32             AS 47.10.084(a).   



                               878 P.2d 1341, 1345-48 (Alaska 1994).  



                              4 P.3d 326, 331 (Alaska 2000).  



                              Id. at 332.  

                                                                                              -11-                                                                                        7423

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

                      The "gross negligence" necessary for the statute of repose's exception to  

apply is not merely a failure to exercise reasonable care but a "major departure from the  


                             36   "Whether a defendant breached its duty of care is typically a factual  

 standard of care."                                                                                                                


                                   37                                                                                               38 and  

                                       as are whether the lack of care amounts to gross negligence                                       

question for the jury,"                                                                                             


whether the breach of duty caused the plaintiff harm.39  


                      OCS argues that because the alleged abuse occurred after Dapo's adoption,  


he was no longer under OCS supervision and therefore there was no special relationship  


and no duty as a matter of law. We have held that a finalized adoption decree terminates  


the "former parent's legal relationship with the child,"40  although we have not ruled  


 specifically on OCS's post-adoption duty to children formerly in its care.  


           36         Maness v. Daily             , 307 P.3d 894, 905 (Alaska 2013) (quoting                                   Storrs  v.  

Lutheran Hosp. & Homes Soc'y of Am., Inc.                                , 661 P.2d 632, 634 (Alaska 1983)).             

           37         Lindsey v. E &E Auto. &Tire Serv., Inc., 241 P.3d 880, 885 (Alaska 2010).  


           38         See, e.g., E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 187 (4th Cir. 2018)  


(Under Maryland law, "[t]he question of gross negligence is typically a question for the  


jury but can be determined as a matter of law when the facts clearly show that no  


reasonable jury could find that the defendant's actions amounted to gross negligence.");  


Decker v. City of Imperial Beach, 257 Cal. Rptr. 356, 358 (Cal. App. 1989) ("Generally  


it is a triable issue of fact whether there has been such a lack of care as to constitute gross  


negligence but not always." (citation omitted));  Garrison v. Pac. Nw. Bell, 608 P.2d  


 1206, 1212 (Or. App. 1980) ("Ordinarily, the issue of gross negligence is a question of  


fact to be decided by the jury. . . .  The court will withdraw the issue from the jury only  


when  it  can  say  as  a  matter  of  law  that  the  actor's  conduct  falls  short  of  gross  




           39         Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 399 (Alaska 2017) ("The  


determination of proximate cause usually requires the resolution of questions of fact by  


the fact-finder; it 'becomes a matter of law only where reasonable minds cannot differ.' "  


(quoting Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007))).  


           40         In re Adoption of S.K.L.H., 204 P.3d 320, 326 n.23 (Alaska 2009).  


                                                                    -12-                                                              7423

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

                                                                The   claim   against   OCS,   however,   is   based   on   its   actions  before   the  

adoption, when the existence of a special relationship between OCS and Dapo, as a child                                                                                                                                                                                                                                                                                                         

in its legal custody, is undisputed.  Dapo alleges that "OCS clearly breached [its] duty   

by dumping [Dapo] in a home where it already knew other foster children had been                                                                                                                                                                                                                                                   

abused, and it was clearly foreseeable that he would be abused too."                                                                                                                                                                                                                                                                            He alleges that                                           

when OCS did this it knew Lucas "had forced a child to sit in cold water up to his neck                                                                                                                                                                                                                                                                                                               

 for an hour or longer while his teeth were chattering and he was crying and fighting to                                                                                                                                                                                                                                                                                                                            

get out," "was hitting or spanking her foster children," "was intentionally giving them   

too much medication," and lacked a clear sense of personal boundaries.                                                                                                                                                                                                                                                                                     Dapo alleges  

that OCS "clearly understood that Ms. Lucas was not fit to be a foster parent because it                                                                                                                                                                                                                                                                                                                               

removed   all   the   children   from her                                                                                                                                    home   [in   1999]   and   stated   she   needed  to  get   a  

psychological evaluation to assess whether she was a danger to the safety of children."                                                                                                                                                                                                                                                                                                                                           

Dapo claims that OCS placed him in Lucas's home six months later regardless of its                                                                                                                                                                                                                                                                                                                               

knowledge of the risks. If OCS breached its duty to Dapo by placing him in harm's way,                                                                                                                                                                                                                                                                                                                 

it does not matter to Dapo's cause of action that the resulting harm did not occur until                                                                                                                                                                  

OCS no longer had that duty, assuming he can prove that the breach caused the harm.                                                                                                                                                                                                                                                                                                                                    41  

                                                                2.                              The breach of fiduciary duty exception  


                                                                Thestatuteofrepose's exception for "breachoftrust or fiduciary duty"may  


also be relevant here.   We have never used the word "fiduciary" to describe the State's  


relationship with the children in its care, though a few jurisdictions have.42                                                                                                                                                                                                                                                                                            But OCS's  


                                41                               Cf. Jones v. Westbrook                                                                                      , 379 P.3d 963, 967 (Alaska 2016) (explaining that                                                                                                                                                                            

 for purposes of causes of action for professional malpractice, "regardless of when the                                                                                                                                                                                                                                                                                                                       

duty is breached, the cause of action does not accrue and the statute of limitations                                                                                                                                                                                                                                                                                    

ordinarily does not begin to run until 'the date on which the plaintiff incurs injury' "                                                                                                                                                                                                                                                                                                                               

 (quoting  Jarvill v. Porky's Equip., Inc.                                                                                                                                                , 189 P.3d 335, 338 (Alaska 2008))).                                                                                                    

                                42                              See  Kane  v.  Chester  Cty.  Dep't  of  Children,  Youth  &  Families,  



                                                                                                                                                                                                      -13-                                                                                                                                                                                            7423

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

duties under AS 47.10.084(a) include nearly all aspects of the child's direction, control,                                                                                      

and   protection,   from "where                                     and   with   whom the                           child   shall   live"   to  "decisions   of  

financial significance concerning the child."                                                           We note further that for purposes of a                                                

different chapter in Title 47 - dealing with the protection of vulnerable adults - the                                                                                                    

legislature defined "fiduciary duty" broadly                                                     to mean "the duty of a third party who stands                                      

in a position of trust or confidence with another person,                                                                  including a vulnerable adult                                   , to   

                                                                                                                                       43  Although this definition  

act with due regard for the benefit and interest of that person."                                                                                                           

is not directly applicable to child in need of aid proceedings under Title 47, chapter 10,  


we take some direction from the legislature's use of fiduciary terminology in a closely  


analogous context.  And the "special relationship" the legislature created for dependent  


children seems to fall squarely within our usual common-law description of fiduciary  



                              We have stated that a fiduciary relationship "exists when one  


                              imposes a special confidence in another, so that the latter, in  


                              equity and good conscience, is bound to act in good faith and  


                              with  due  regard  to  the  interests  of  the  one  imposing  the  


                              confidence."  "Fiduciary relationships are generally defined  


                              by  a  level  of  trust  beyond   that  in  ordinary  business  


               42             (...continued)  


 10 F. Supp. 3d 671, 693-94 (E.D. Pa. 2014) ("Under Pennsylvania law, the relationship  


between a minor foster child and an agency caring for foster children[] is a fiduciary  


relationship where one party is bound to act for the benefit of another."); In re Leah S.,  


898 A.2d 855, 861 (Conn. App. 2006) ("In seeking and accepting the child's charge, the  


commissioner [of children and families] acted as a fiduciary to the family and for the  


state."), rev d on other grounds, 935 A.2d 1021 (Conn. 2007).  

               43             AS 47.24.900(9) (emphasis added).  


                                                                                            -14-                                                                                      7423

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

                     relationships,"   and   "[l]oyalty   and   the   disavowal   of   self  

                     interest are hallmarks of the fiduciary's role."                        [44]  

We conclude, therefore, that the relationship between OCS and children in its legal  


custody  pursuant  to  AS  47.10.084  is  a  fiduciary  relationship  for  purposes  of  


AS 09.10.055(b)(1)(F), the "breach of trust or fiduciary duty" exception to the statute of  




                     By deciding that Lucas's apportionment claim may fall within these two  


exceptions to the statute of repose, we do not mean to preclude summary judgment if the  


superior court determines that "no reasonable person could discern a genuine factual  


dispute on a material issue."45                 Such a determination is not possible on the record before  




           C.	       The Statute Of Repose Is Not Unconstitutional As Applied To Lucas's  


                     Apportionment Claim Against OCS.  


                     Dapo contends thatifthestatuteofreposeapplies toLucas'sapportionment  


claim, it unconstitutionally deprives him of access to the courts because it leaves him in  


the absurd position of having to rely on Lucas and OCS to sue themselves on his behalf.  


"A party raising a constitutional challenge to a statute bears the burden of demonstrating  


the  constitutional  violation."46                    "An  as-applied  [constitutional]  challenge  requires  


           44         Williams  v.  Baker,  446  P.3d  336,  340  (Alaska  2019)  (alteration  in  original)  

(first  quoting  Seybert  v.  Cominco  Alaska  Expl.,  182  P.3d  1079,  1090  (Alaska  2008);  then  

quoting  Munn  v.  Thornton,  956  P.2d   1213,   1220  (Alaska   1998)).   

           45        See Christensen v. Alaska Sales &Service, Inc., 335 P.3d 514, 520 (Alaska  



           46        State, Dep't of Revenue v. Andrade , 23 P.3d 58, 71 (Alaska 2001) (quoting  


Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)).  


                                                                 -15-	                                                           7423

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


evaluation of the facts of the particular case in which the challenge arises."                                                                                          "The right   

of access to the courts is an important interest requiring enhanced scrutiny; however, that                                                                                             


right is impaired only by state action that actually limits or blocks access to the courts."                                                                                                     


"The  United  States  Supreme  Court  has  called  it  'an  uncontroversial  principle  of  


constitutional adjudication . . . that a plaintiff 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 [him or her].' " 

                             We applied this principle in Reasner v. State, Department of Health &  


Social Services, Office of Children's Services, holding that the superior court should  


refrain from deciding an as-applied constitutional challenge until the plaintiff was able  


to show the law's unconstitutional application to her.50                                                                     Because there were questions  


about when Reasner's claims arose and whether they were subject to various exceptions  


to the statute of repose, including those for "gross negligence, misrepresentation, or  


breach of fiduciary duty," we remanded to the superior court to "determine whether the  


statute of repose applies to Reasner's case before it considers Reasner's as-applied  


constitutionalchallenge."51  In Dapo'scase, however, we decidetheas-applied challenge  


despite  the  possibility  that  the  superior  court,  on  remand,  will  moot  the  issue  by  


               47            Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                     ,  

309 P.3d 1262, 1268 (Alaska 2013) (citing                                                      State v. ACLU of Alaska                              , 204 P.3d 364, 372                

(Alaska 2009)).   

               48            Evans ex rel. Kutch v. State, 56 P.3d 1046, 1052 (Alaska 2002).  


               49            Reasner v. State, Dep't of Health & Social Servs., Office of Children's  


Servs., 394 P.3d 610, 618 (Alaska 2017) (emphasis omitted) (quoting McCullen v.  


Coakley, 573 U.S. 464, 485 n.4 (2014)).  


               50            Id. (quoting McCullen, 573 U.S. 464 at 485 n.4).  


               51            Id.  

                                                                                           -16-                                                                                     7423

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

concluding that the statute does not apply because of one or more exceptions.                                                                                                                                                                                                The  

undisputed facts give us a sufficient basis for deciding the constitutional issue while it                                                

is before us on this appeal.                                                                

                                            We   conclude   that   Dapo's   right   of   access   to   the   courts   has  not   been  

"impaired . . . by state action that actually limits or blocks [his] access to the courts." His                                                                                                                                                                                 

claim against Lucas for sexual abuse was indisputably timely under both the applicable                                                                                                                                                                    

statute of limitations, AS 09.10.065(a), and the "intentional act" exception to the statute                                                                                                                                                                           

of repose, AS 09.10.055(b)(1)(B). As for Lucas's claim against OCS for apportionment                                                                                                                                                        

of fault, if it is barred by the statute of repose it is not because Dapo's access to the courts                                                                                                                                                                       

was blocked by state action or was limited by suspect decisions made by Dapo's parents                                                                                                                                                                              

                                           52       As OCS points out, Dapo reached the age of majority in 2008 and had  

or guardians.                                                                                                                                                                                           

another four years after that - until 2012 - to pursue an action within the ten-year  


period of the statute of repose based on harm caused in 2002.  He filed suit in 2015,  


nearly seven years after reaching the age of majority.  


                                            Dapo appears to address his delay in filing suit as an adult when he argues  


that  sexually  abused  children  "may  take  years  to  understand  that  the  emotional  


difficulties and other dysfunction [they are] suffering are caused by sexual abuse" and  


that courts "cannot presumethat a sexually-abused child has sufficient information about  


OCS's role in the matter to trigger the running of the statute of limitations against OCS."  


But we addressed this discovery-rule-based challenge to the statute of repose in Evans  


ex rel. Kutch v. State, in which the plurality opinion observed that "[t]he discovery rule  


is a common law rule created by this court, and is not based on any constitutional  


                      52                    Cf. Sands ex rel. Sands v. Green                                                                          , 156 P.3d 1130, 1136-39 (Alaska 2007)   

(Eastaugh,                                J.,          dissenting)                                (questioning                                    whether                          statute                     of           repose                      would                       be  

unconstitutional if applied to bar minor's suit before minor reaches age of majority).                                                                                                                                                                                                 

                                                                                                                                       -17-                                                                                                                                7423

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


principles," meaning that "the legislature is free to modify or abolish" it.                                                                     "Therefore,  

to the extent that AS 09.10.055 limits the traditional discovery rule, the legislature had                                                                        


the power to do so in enacting the statute."                                             


                          We conclude that the statute of repose is not unconstitutional as applied to  


Lucas's apportionment claim against OCS.  


             D.           Sovereign Immunity  


                          The State briefly addresses a statutory immunity defense as an alternative  



 ground for affirming summary judgment in its favor.                                                      The State cites AS 09.50.250(3),  


which bars an action against the State "if the claim . . . arises out of assault, battery," or  


 another of several listed intentional torts. The State contends that because Dapo's claims  


 against Lucas are for sexual abuse, and because "[s]exual abuse is a form of and 'arises  


 out of' assault and battery," Lucas's third-party complaint for allocation of fault also  


 "arises out of" assault and battery and is statutorily barred.  But immunity from assault  


 claims does not confer immunity from claims that the State breached an independent  


 duty, thus allegedly allowing the assault to occur.  


                          We  construe  the  State's  immunity  under  AS  09.50.250(3)  "narrowly,  



because 'liability is the rule, immunity the exception' in claims against the [S]tate." 

             53           56  P.3d  at   1068.  

             54           Id.  at   1068-69.  

             55           The  State  raised  the  statutory  immunity  defense  in  its  motion  for  summary  

judgment,  but  the  superior  court  did  not  address  it,  granting  the  State's  motion  solely  on  

 statute  of  repose  grounds.  

             56           Kinegak v. State, Dep't of Corr., 129 P.3d 887, 889 (Alaska 2006) (quoting  


Native  Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 49 (Alaska 2004)).  


                                                                                -18-                                                                           7423

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


Federal decisions interpreting the Federal Tort Claims Act                                        "are persuasive authority in              


construing" AS 09.50.250(3) given the "nearly identical" language between the two.                                                               

Most federal circuit courts addressing this issue have held that "the government is liable  


for  harm  caused  by  intentional  torts,  provided  the  government  breached  some  


'independent duty' that has a basis other than negligent supervision, training, or hiring  


of government employees."59                         As Dapo points out, "there is no employer-employee  


relationship between OCS and Lucas to muddy the water."   The key inquiry is thus  


whether OCS had an independent duty to protect Dapo from harm of the sort alleged  


here.  As described above in section IV.B, we have concluded that it did have such a  


duty, though fact issues remain as to whether the duty was breached.  


                                                                           60  which we have cited favorably several  

                      In Bembenista v. United States,  


          61 the Court of Appeals for the D.C. Circuit decided that a government-operated  


military hospital owed a "duty of protective care" arising "out of its special relationship  


with" its patients, and it was not immune from liability if it breached this duty by failing  


                                                                         62  We have reached similar conclusions in  

to protect patients from staff member abuse.                                                                                                


similar cases. In B.R. v. State, Department of Corrections, we held that the State "stands  


           57         See  28  U.S.C.    2680(h)  (2018).  

           58         Kinegak,   129  P.3d  at  890.  

           59         Id.  at  891.  

           60         866  F.2d  493,  498  (D.C.  Cir.   1989).  

           61         See   B.R.   v.   State,   Dep't   of   Corr.,   144   P.3d   431,   436   (Alaska   2006);  

Kinegak,   129  P.3d  at  891  n.30.  

           62         Bembenista,  866  F.2d  at  498.  

                                                                    -19-                                                              7423

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

in a special relationship with inmates . . . [which] gives rise to a special protective duty"                                               63  


and that Alaska's "intentional tort immunity statute did not preclude claims against the  


State . . . [based on] a breach of the State's independent protective duty to prevent  

              64  In Mattox v. State, Department of Corrections, we held that the State "owes  


a  duty  to  inmates  to  exercise  reasonable  care  for  the  protection  of  their  lives  and  


health."65   This duty even extended to harm caused by assault from other inmates so long  


as the harm was "reasonably foreseeable"; we noted that "evidence of an immediate  


threat of harm" at the summary judgment stage "would certainly help to raise a genuine  


issue of fact as to foreseeability."66  


                      Here, OCS stood in a "special relationship" with Dapo, a "child[] in need  


of aid who c[a]me under its supervision."67   OCS was therefore required to "exercise due  


                                                                                                                       68   If the State  

care [through reasonable efforts] to minimize potential harm" to Dapo.                                                                 


breached its independent duty to Dapo, statutory immunity does not protect it even if  


Dapo's harm resulted from a third-party assault.  


V.         CONCLUSION  

                      We  REVERSE  the  superior  court's  order  dismissing  the  third-party  


apportionment  claim  against  OCS  and  REMAND  to  the  superior  court  for  further  


proceedings consistent with this opinion.  


           63         B.R.,   144  P.3d  at  435.  

           64         Hill  v.  Giani,  296  P.3d  14,  21  (Alaska  2013)  (citing  B.R.,  144  P.3d  at  437).  

           65         323  P.3d  23,  26  (Alaska  2014).  

           66         Id.  at  28.  

           67         P.G.  v.  State,  Dep't  of  Health  &  Human  Servs., Div.  of  Family  &   Youth  

Servs.,  4  P.3d  326,  331  (Alaska  2000).  

           68         Id.  at  331-32.  

                                                                    -20-                                                              7423

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