Raymond Dapo v. State of Alaska, Office of Children's Services and Taun Lucas

     Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
     Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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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.                       )
                             )                     OPINION
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,
             Judge.

             Appearances: Michael C. Kramer and Robert John, Kramer
             and Associates, Fairbanks, for Appellant. Aisha Tinker Bray,
             Assistant Attorney General, Fairbanks, and Jahna Lindemuth,
             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.

I.   INTRODUCTION
             A young man filed suit against his adoptive mother for sexual abuse that
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
proceedings.
II.    FACTS AND PROCEEDINGS
       A.      Facts
               Raymond Dapo was born in 1990. OCS1 took custody of him ten years
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
       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




       2
             Reasner v. State, Dep’t of Health & Social Servs., Office of Children’s
Servs., 

 (Alaska 2017).

                                            -3-                                      7423
of fault claim against OCS in this case.” The court dismissed all claims against OCS
with prejudice. Dapo now appeals.
III.   STANDARD OF REVIEW
              We review a grant of summary judgment de novo.3 Summary judgment is
appropriate when “no genuine issues of material fact exist and where the moving party
is entitled to judgment as a matter of law.”4 When ruling on a summary judgment
motion, we view the facts in the light most favorable to the non-moving party.5
              We interpret statutes “according to reason, 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., 

 (Alaska 2007) (citing
Midgett v. Cook Inlet Pre-Trial Facility, 

 (Alaska 2002)).
       4
              

       5
              Cabana v. Kenai Peninsula Borough, 

 (Alaska 2002).
       6
             Marathon Oil Co. v. State, Dep’t of Nat. Res., 

 (Alaska
2011) (quoting Native Vill. of Elim v. State, 

 (Alaska 1999)).
       7
             State, Dep’t of Revenue v. Andrade, 

 (Alaska 2001) (quoting
Baxley v. State, 

 (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
from “an intentional act or gross negligence”9 or a “breach of trust or fiduciary duty.”10
              The parties agree that the statute 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.11
              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
limitation.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
              

 (Alaska 2000).

                                            -5-                                        7423
      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
damage,”13 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.”14
             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).
      14
             Croft v. Pan Alaska Trucking, Inc., 

 (Alaska 1991)
(quoting Puller v. Municipality of Anchorage, 

 (Alaska 1978)).

                                           -6-                                     7423
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.15
              The apportionment statute thus specifically acknowledges that persons who
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 the 1997 Tort Reform Initiative — 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
a portion of the fault.”17 Dapo directs us to no contrary legislative history.



       15
             AS 09.17.080(c) (“[A]n assessment of a percentage of fault against a person
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, 

 (Alaska 2002)
(listing challenged “tort reform provisions” of chapter 26, SLA 1997, including “the
comparative apportionment of damages under AS 09.17.080” and “the ‘statute of repose’
under AS 09.10.055”); 

 (“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
              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.18 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.”19 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.20 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.”21
              Alaska General Alarm was concerned with the statute of limitations, 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.”22 The statute of limitations, though of fixed duration, is still shaped by a case’s

       18
              

 (Alaska 2000).
       19
              

.
       20
              

.
       21
              

 at 106 n.46.
       22
              Turner Constr. Co. v. Scales, 

, 469 n.2 (Alaska 1988)
                                                                   (continued...)

                                            -8-                                        7423
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
discovery rule.23 The statute of repose, on the other hand, “intends to completely
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, 

 (Alaska 2006) (quoting
Cameron v. State, 

 (Alaska 1991)).
      24
              Sands ex rel. Sands v. Green, 

 (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 

 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
       B.     Whether Lucas’s Apportionment Claim Falls Within An Exception To
              The Statute Of Repose Presents Unresolved Questions Of Fact.
              The statute of repose’s listed exceptions include claims in which the alleged
“personal injury, death, or property damage resulted from . . . (B) an intentional act or
gross negligence; . . . or (F) breach of trust or fiduciary duty.”27 Dapo argues that both
exceptions apply because, taking all facts in the light most favorable to him as the non-
moving party,28 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.29
              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.”30 “Whether a party has a duty of care and, if
so, the nature and scope of that duty are questions of law.”31
              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, 

 (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., 

 (Alaska 1992) (stating
we need not consider theory first raised in reply brief).
       30
              Silvers v. Silvers, 

 (Alaska 2000).
       31
              Lindsey v. E & E Auto. & Tire Serv., Inc., 

 (Alaska 2010).

                                           -10-                                       7423
             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.[32]
             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
with prospective foster parents whom it seeks to enlist as their custodians.”34 This meant
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).
      33
             

, 1345-48 (Alaska 1994).
      34
             

, 331 (Alaska 2000).
      35
             Id. at 332.

                                           -11-                                     7423
              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
standard of care.”36 “Whether a defendant breached its duty of care is typically a factual
question for the jury,”37 as are whether the lack of care amounts to gross negligence38 and
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, 

 (Alaska 2013) (quoting Storrs v.
Lutheran Hosp. & Homes Soc’y of Am., Inc., 

 (Alaska 1983)).
       37
              Lindsey v. E &E Auto. &Tire Serv., Inc., 

 (Alaska 2010).
       38
                 See, e.g., E.W. ex rel. T.W. v. Dolgos, 

 (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, 

 (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, 

 (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
negligence.”).
       39
              Burton v. Fountainhead Dev., Inc., 

 (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, 

 (Alaska 2007))).
       40
              In re Adoption of S.K.L.H., 

, 326 n.23 (Alaska 2009).

                                             -12-                                        7423
             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
             The statute of repose’s exception for “breach of trust 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, 

 (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., 

 (Alaska 2008))).
      42
             See Kane v. Chester Cty. Dep’t of Children, Youth & Families,
                                                               (continued...)

                                          -13-                                      7423
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
act with due regard for the benefit and interest of that person.”43 Although this definition
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
relationships:
              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)

 (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.,

 (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, 

 (Conn. 2007).
       43
              AS 47.24.900(9) (emphasis added).

                                           -14-                                       7423
              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
repose.
              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
us.
         C.   The Statute Of Repose Is Not Unconstitutional As Applied To Lucas’s
              Apportionment Claim Against OCS.
              Dapo contends that if the statute of repose applies to Lucas’s apportionment
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, 

 (Alaska 2019) (alteration in original)
(first quoting Seybert v. Cominco Alaska Expl., 

 (Alaska 2008); then
quoting Munn v. Thornton, 

 (Alaska 1998)).
         45
              See Christensen v. Alaska Sales & Service, Inc., 

 (Alaska
2014).
         46
             State, Dep’t of Revenue v. Andrade, 

 (Alaska 2001) (quoting
Baxley v. State, 

 (Alaska 1998)).

                                          -15-                                      7423
evaluation of the facts of the particular case in which the challenge arises.”47 “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.”48
“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].’ ”49
              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
constitutional challenge.”51 In Dapo’s case, however, we decide the as-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.,

 (Alaska 2013) (citing State v. ACLU of Alaska, 

(Alaska 2009)).
       48
              Evans ex rel. Kutch v. State, 

 (Alaska 2002).
       49
             Reasner v. State, Dep’t of Health & Social Servs., Office of Children’s
Servs., 

 (Alaska 2017) (emphasis omitted) (quoting McCullen v.
Coakley, 

, 485 n.4 (2014)).
       50
              

 (quoting McCullen, 

 at 485 n.4).
       51
              

                                            -16-                                        7423
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
or guardians.52 As OCS points out, Dapo reached the age of majority in 2008 and had
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 presume that 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, 

 (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
principles,” meaning that “the legislature is free to modify or abolish” it.53 “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.”54
              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.55 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.”56




       53
              

.
       54
              

.
       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., 

 (Alaska 2006) (quoting
Native Vill. of Eklutna v. Alaska R.R. Corp., 

 (Alaska 2004)).

                                            -18-                                        7423
Federal decisions interpreting the Federal Tort Claims Act57 “are persuasive authority in
construing” AS 09.50.250(3) given the “nearly identical” language between the two.58
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.
              In Bembenista v. United States,60 which we have cited favorably several
times,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
to protect patients from staff member abuse.62 We have reached similar conclusions in
similar cases. In B.R. v. State, Department of Corrections, we held that the State “stands




       57
              See 

(h) (2018).
       58
              Kinegak, 129 P.3d at 890.
       59
              Id. at 891.
       60
              

 (D.C. Cir. 1989).
       61
            See B.R. v. State, Dep’t of Corr., 

 (Alaska 2006);
Kinegak, 

 n.30.
       62
              Bembenista, 

.

                                           -19-                                       7423
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
assault.”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
care [through reasonable efforts] to minimize potential harm” to Dapo.68 If the State
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.

       

 P.3d at 435.
       64
              Hill v. Giani, 

 (Alaska 2013) (citing B.R., 

).
       65
              

 (Alaska 2014).
       66
              

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

, 331 (Alaska 2000).
       68
              Id. at 331-32.

                                             -20-                                        7423