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P.G. v. State6/30/2000
e relevant information, and thereby caused personal injury to their children. The Greens do not purport to advance a separate claim for the tort of misrepresentation.
In Johnson v. State, the California Supreme Court noted that "misrepresentation" potentially lends itself to extremely expansive and elusive interpretations. A driver of an automobile who makes a misleading turn signal, for example, literally has "misrepresented" his intentions and subsequent course of conduct. Yet it would be senseless to hold the state liable if its employee failed to make any signal, arguably a "nonrepresentation," but reach the opposite result if he affirmatively "misrepresented" his intentions.[ ]
Similarly, it would be senseless here to hold the state liable for failing to gather and disclose relevant information to potential foster parents, while providing immunity for affirmatively misrepresenting Billy's suitability for foster placement.
We thus agree with the California Supreme Court's view that a "'misrepresentation,' as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial and commercial interests." We conclude that AS 09.50.250(3) only exempts the state from this type of misrepresentation claim. Because the Greens' claim against DFYS does not arise from an invasion of financial or commercial interests, AS 09.50.250(3) does not apply. We reverse the superior court's grant of summary judgment based on this provision.
IV. CONCLUSION
DFYS owes a duty of due care to disclose relevant information to prospective foster parents. The evidence here, taken in the light most favorable to the Greens, would permit a reasonable jury to find that DFYS breached this duty and that its breach caused the Greens to suffer forseeable injuries. The Greens' claim for negligent nondisclosure does not allege financial or commercial misrepresentations and so is not subject to dismissal under AS 09.50.250(3). Accordingly, we REVERSE the superior court's summary judgment orders and REMAND for further proceedings.
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