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P.G. v. State6/30/2000
e Restatement has come close to expressing the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlikely, in the sometime language of the street the cock-eyed and far-fetched, even when we look at the event, as we must, after it has occurred.[ ]
In the present case, the superior court concluded as a matter of law that the information available to DFYS could not have allowed a reasonable person to predict Billy's subsequent assaults on the Greens' children. But the accuracy of this conclusion is beside the point for purposes of determining DFYS's potential liability. For as we have explained, foreseeability does not require an ability to predict precise actions and exact injuries. Considering the evidence in the light most favorable to the Greens, it does not seem "highly extraordinary" that DFYS's conduct "should have brought about the harm" allegedly committed. Reasonable jurors applying the correct standard of foreseeability could properly conclude that McNutt's alleged description of Billy as "a really good kid" who "had never been in trouble before" and "had no problems" was highly misleading, that DFYS failed to make reasonable efforts to gather and disclose relevant information concerning Billy's background, that this failure exposed the Greens to a foreseeable and unjustifiable risk that Billy might engage in harmful actions, that the injuries he allegedly inflicted were of the general nature that could be expected, and that the Greens could have avoided these injuries -- either by declining to accept Billy as a foster child or by subjecting him to more rigorous supervision -- had they known what they were entitled to know.
Accordingly, we conclude that the superior court erred in finding no genuine factual dispute on the issue of foreseeability and in granting summary judgment to the state on that basis.
C. Did the Superior Court Err in Granting Partial Summary Judgment to DFYS on Immunity Under AS 09.50.250(3)?
We must separately consider whether the Greens' claim for negligent failure to disclose was subject to dismissal under AS 09.50.250(3). Section .250 generally waives the state's sovereign immunity from suit, but subsection .250(3) provides that "an action may not be brought [against the state] under this section if the claim . . . arises out of misrepresentation . . . ." In interpreting this provision, we rely heavily on federal cases interpreting the Federal Tort Claims Act, which also contains a "misrepresentation" clause.
The United States Supreme Court held in United States v. Neustadt that under this analogous provision of the federal act the federal government is immune from liability for misrepresentation arising from a negligent home appraisal by the Federal Housing Authority. The Court noted, however, that its holding did not immunize the government from liability in general negligence cases:
any familiar forms of negligent conduct may be said to involve an element of "misrepresentation," in the generic sense of that word, but " o far as misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit," and has been confined "very largely to the invasion of interests of a financial or commercial character, in the course of business dealings."[ ]
Here, while the Greens do allege that DFYS misrepresented facts regarding Billy's personal history and character, their allegations do not arise from the invasion of any commercial or financial interests. They serve only to support the Greens' general theory that DFYS negligently failed to gather and disclos
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