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P.G. v. State6/30/2000
[No. 5294 - June 30, 2000]
Appeal from the Superior Court of the State of Alaska, Third Judicial District, at Kenai, Harold M. Brown, Judge.
I. INTRODUCTION
Penny and Richard Green sued the Division of Family and Youth Services (DFYS) after their foster child, Billy, physically and sexually assaulted their two children. The Greens alleged that DFYS negligently failed to disclose information that would have alerted them to the risks of accepting Billy into their home. The superior court assumed that DFYS had a duty to give the Greens relevant information about Billy. But it granted summary judgment to DFYS, finding part of their claim barred by AS 09.50.250(3) -- which immunizes the state from claims of misrepresentation -- and the balance barred because Billy's actions were unforeseeable. We reverse, concluding that DFYS owed the Greens a duty of disclosure, that a reasonable jury could find Billy's actions a foreseeable result of breaching this duty, and that AS 09.50.250(3) only bars suits for financial or commercial misrepresentations.
II. FACTS AND PROCEEDINGS
In November 1991 Penny and Richard Green became the foster parents of Billy, a child in need of aid who was then thirteen years old. Although they had a daughter and son of their own, aged eight and ten, the Greens were first-time foster parents.
Before moving to Alaska in 1990, Billy and his brother lived in Washington state with their mother. Washington school officials described Billy as "a troubled boy with much anger." In September 1990, after Billy displayed behavioral problems in school, Billy's mother sent the two boys to live with their father in Soldotna.
Once Billy arrived in Alaska, his father alerted Billy's new school to potential problems and worked with the school to provide an appropriate placement. On September 20 Billy's father took Billy to see Dr. Kathleen Dinius, a Soldotna psychologist. Dr. Dinius reported that Billy's mother had described him as "exhibiting serious behavior problems." Dr. Dinius stated that she "anticipated . . . that [Billy] would develop behavior problems, probably of a serious nature . . . that would require professional help."
Edward Harrison, a school psychologist, also interviewed and tested Billy to determine an appropriate grade placement. In a report dated September 27, 1990, Harrison noted that Billy's teacher had described him as "street wise." Harrison found Billy to be "evasive and guarded in his responses." Testing showed signs that the boy was anxious over self-disclosure and depressed, and also suggested "themes of anger, feelings of abandonment and being without control in an untrustworthy adult world." Harrison warned that Billy's "defenses appear taxed to a point where withdrawal may be necessary for coping with adults . . . . The future may appear chaotic and out of control to [Billy] with little hope for adequacy in meeting normal social role expectations as a person, as student or as a son."
According to Harrison, Billy would "become easily upset when given constructive criticism. His outlook is pessimistic . . . ." Harrison concluded that " or educational purposes [Billy] should be considered severely emotionally disturbed and in need for special education intervention for him to benefit from his educational program. . . . His difficulties have persisted over a long period of time and to a marked degree they have adversely affected his educational performance." One of the tests that Harrison gave Billy consisted of a display of ambiguous pictures. Billy's responses focused on murder, death, anger, suicide, guns, blood, sex and sexuality, disease, and strangulati
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