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McGrew v. State2/4/2005
thresholds for an IIED claim.
Moreover, we discussed duty in Karen L. and D.S.W. in context of claims in which the existence of an actionable duty of care was legally and factually problematic. The legal determination whether there is an actionable duty of care has little if any conceptual relevance to an IIED claim. The concept of a "duty of care" is usually identified with negligence claims, and has no obvious bearing on a claim of intentional and outrageous conduct; the intentionality of the outrageous conduct needed for an IIED claim presupposes at least some intended relationship between the actor and the person harmed. The D.S.W. factors are typically applied to determine whether there is an actionable duty of care when there is no existing or intended relationship between the actor and the person harmed.
We conclude that the D.S.W. multi-factor duty analysis we applied in Karen L. does not apply to intentional tort claims.
Karen L.'s duty discussion therefore does not preclude the McGrews' IIED claim. Because that claim was dismissed on the pleadings under Rule 12(b)(6), there was no opportunity to consider whether plaintiffs' evidence could surmount the thresholds for the severity of any emotional distress and the outrageousness of the actor's conduct.
We therefore cannot affirm the dismissal of this claim on a possible alternative theory that the McGrews did not or cannot overcome the threshold for an IIED claim. We consequently reverse the dismissal of their IIED claim.
E. Other Issues
The parties' briefs do not discuss whether our decision in the adoption case, L.E.K.M., has any effect on the McGrews' tort claims.
We leave it to the parties to raise on remand any question about what effect L.E.K.M. may have on the IIED claim, particularly with respect to the issues of liability, causation, and damages.
Our rulings on the negligence and IIED claims and the Bivens-type remedy make it unnecessary to consider the McGrews' argument that the superior court erred when it denied their motion to supplement the record. Their negligence claim and Bivens action are precluded as a matter of law and were therefore properly dismissed on the pleadings. No factual disputes, however genuine, would be material to those claims. And because we reverse the dismissal of the IIED claim, the McGrews are free on remand to offer evidence relevant to that claim.
The McGrews assert that the state is not immune from suit under the Alaska Tort Claims Act, AS 09.50.250. The state does not address the issue of statutory immunity. As to the negligence claim and the Bivens-remedy claim, no discussion of immunity is needed here. And because the parties have altogether failed to explain what effect AS 09.50.250, particularly subsection .250(3), might have on the IIED claim, we decline to consider whether the state is immune from the IIED claim pleaded here.
IV. CONCLUSION
We AFFIRM the dismissal of the McGrews' negligence and constitutional violation claims. We REVERSE the dismissal of their IIED claim and REMAND for further proceedings.
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