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, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

LISA REASNER, 

Appellant/Cross-Appellee, 

v. 

STATE OF ALASKA, DEPARTMENT 

OF HEALTH & SOCIAL SERVICES, 

OFFICE OF CHILDREN’S SERVICES,

Appellee/Cross-Appellant, 

and 

ROLIN N. ALLISON JR. 

Appellee. 

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Supreme Court Nos. S-15900/15929 

Superior Court No. 4FA-12-02812 CI 

O P I N I O N 

No. 7171 – May 19, 2017 

Appeal from the Superior Court of the State of Alaska,
 

FourthJudicial District, Fairbanks,BethanyHarbison, Judge.
 

Appearances: Susan Orlansky, Reeves Amodio, LLC, 

Anchorage, and Michael C. Kramer and Reilly Cosgrove, 

Kramer and Associates, Fairbanks, for Appellant/CrossAppellee. Ruth Botstein, Assistant Attorney General, 

Anchorage, and Craig W. Richards, Attorney General, 

Juneau, for Appellee/Cross-Appellant State of Alaska, 

Departmentof Health &Social Services, OfficeofChildren’s 

Services. No appearance by Appellee Rolin N. Allison, Jr. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BOLGER, Justice. 

I. INTRODUCTION 

Lisa Reasner suffered years of sexual abuse while in foster care and after 

the Office of Children’s Services (OCS)1 approved her adoption. Years later Reasner 

sued OCS after discovering that OCS might have played a role in allowing her abuse. 

The superior court concluded that Reasner’s claims were untimely and granted summary 

judgment in favor of OCS. The superior court also concluded that even if Reasner’s 

claims had been timely, OCS would still be entitled to partial summary judgment on 

various other grounds, including that OCS was partially protected by discretionary 

function immunity and that Reasner failed to establish that her foster parents had not 

completed the proper training. For the reasons explained below, we vacate the superior 

court’s grant of summary judgment and remand for further proceedings. 

II. FACTS AND PROCEEDINGS2 

Reasner was born in 1989. OCS assumed custody of her in 1993 after 

ongoing reports of child neglect. In January 1994 OCS placed Reasner in a foster care 

home with Rolin Allison Sr. and Myna Allison. 

In July 1998 OCS received a report alleging that one of the Allisons’ sons 

had sexually molested a neighbor’s granddaughter. During the ensuing investigation 

Reasner revealed that Rolin Allison Jr. (J.R.), a different son, had sexually abused her “a 

long time ago.” At the time of the investigation, however, J.R. was not living with the 

Allisons, and Reasner was allowed to remain in the Allison home. The Allisons adopted 

1 OCS was known at the time as the Division of Family and Youth Services. 

2 Because this case was decided on summary judgment, we present the facts 

in the light most favorable to Reasner’s claims. See Hagen v. Strobel, 353 P.3d 799, 802­

03 (Alaska 2015). 

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Reasner in April 1999. OCS received reports that J.R. was abusing Reasner after the 

adoption but OCS did not take steps to remove Reasner from the home. 

In November 2011 J.R. was arrested for sexually abusing Reasner and other 

children. (J.R. eventually pleaded guilty to five counts of felony sexual abuse of a 

minor.) Reasner attended his arraignment and spoke with her former OCS caseworker. 

The caseworker told Reasner that OCS had known that J.R. was dangerous and had 

ordered Myna Allison to keep him away from the home. According to Reasner this was 

the first time she learned that OCS may have failed to protect her from J.R. 

Reasner sued OCS on December 3, 2012. Relevant to this appeal, Reasner 

alleged that (1) OCS had negligently investigated reports of harm occurring while OCS 

had legal custody of Reasner; (2) OCS had negligently supervised/monitored the Allison 

home; and (3) OCS had negligently failed to investigate reports of harm after Reasner 

was adopted. 

The superior court granted OCS summary judgment on all of Reasner’s 

claims,3 concluding that they were untimely under Alaska’s two-year statute of 

limitations for tort suits.4 The superior court also determined that even if Reasner’s 

claims had been timely, OCS would still be entitled to partial summary judgment on 

Reasner’s claims because she failed to establish a genuine issue of material fact as to 

whether the Allisons had completed certain training requirements and because OCS was 

partially protected by discretionary function immunity. The superior court, however, 

3 The court’s order addressed both OCS’s motion to dismiss and its motion 

for summary judgment. But because the order relied on evidence outside the pleadings, 

we simply treat it as a grant of summary judgment. See Alaska R. Civ. P. 12(c) 

(providing that a motion for judgment on the pleadings shall be treated as one for 

summary judgment if “matters outside the pleadings are presented to and not excluded 

by the court”). 

4 AS 09.10.070. 

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rejected OCS’s argument that Alaska’s statute of repose also barred Reasner’s claim 

concluding that the statute was unconstitutional as applied to Reasner, and the superior 

court also rejected OCS’s argument that Reasner had failed to establish a causal link 

between OCS’s alleged negligence and her harm. 

Reasner appeals and OCS cross-appeals. 

III. DISCUSSION 

The parties appeal a grant of summary judgment. When ruling on a 

summary judgment motion, a court must construe all reasonable factual inferences in 

favor of the non-moving party.5 “[S]ummary judgment is appropriate only when no 

reasonable person could discern a genuine factual dispute on a material issue.”6 As we 

have consistently explained, “ours is a ‘lenient standard for withstanding summary 

judgment.’ ”7 “Any admissible evidence in favor of the nonmoving party concerning a 

material fact is sufficient . . . .”8 We review questions of summary judgment de novo.9 

We divide our discussion into two categories: (1) whether the superior 

court erred in granting OCS summary judgment becauseReasner’s claims were untimely 

and (2) whether Reasner’s claims otherwise withstand summary judgment. 

5 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014).
 

6 Id.
 

7
 Id. (quoting Shaffer v. Bellows, 260 P.3d 1064, 1069 (Alaska 2011)). 

8 Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007). 

9 Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 338-39 (Alaska 2005). 

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A.	 Whether Reasner’s Claims Were Untimely 

1.	 It was error to grant summary judgment to OCS under 

AS 09.10.070 because a genuine issue of material fact exists as to 

when Reasner’s claims accrued. 

Alaska Statute 09.10.070 requires that tort claims be brought “within two 

years of [their] accrual.”10 A different statute, AS 09.10.140(a), tolls the limitations 

period for minors until they reach the age of 18. The superior court found that all of 

Reasner’s claims were untimely because she filed suit more than two years after her 

eighteenth birthday. Reasner argues that this was error because a genuine issue of 

material fact exists concerning when her claims “accru[ed]” as that term is used in 

AS 09.10.070 and that, at the very least, an evidentiary hearing was required to resolve 

this dispute. We agree with Reasner. 

In Alaska the statute of limitations begins to run on the date “when a 

reasonable person has enough information to alert that person that he or she has a 

potential cause of action or should begin an inquiry to protect his or her rights.”11 The 

test for inquiry notice focuses on when a plaintiff has sufficient information to prompt 

an inquiry, not on when she has specific information establishing each element of her 

cause of action.12 Determining that date requires a “fact-intensive” analysis.13 We have 

therefore cautioned that summary judgment should only be used to resolve the time at 

10	 AS 09.10.070(a). 

11 Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988). This 

is referred to as the “discovery rule.” See Cameron v. State, 822 P.2d 1362, 1365-66 

(Alaska 1991) (explaining Alaska’s formulation of the discovery rule). 

12 See Cameron, 822 P.2d at 1366. 

13 Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 509 

(Alaska 2015). 

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which a statute of limitations commences when “there exist uncontroverted facts that 

determine when a reasonable person should have” begun an inquiry to protect her rights.14 

In order to succeed in her suit against OCS, Reasner must prove that OCS 

acted negligently.15 Reasner argues that a reasonable person in her circumstances would 

not have begun an inquiry until she discovered that OCS may have played some role in 

allowing her to be abused.16 The superior court appeared to accept this reasoning, but 

found that by the time Reasner turned 18, she did, in fact, have information suggesting 

that OCS may have played a role in allowing her to be abused. Specifically, the superior 

court found that when Reasner turned 18 she essentially knew what her social worker 

later told her — “that OCS knew that J.R. was dangerous and had told Myna Allison that 

he was forbidden to be around the home.” In reaching this conclusion the superior court 

relied on two events: (1) that Reasner reported her abuse to OCS but OCS allowed her 

14 Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990). 

15 Generally, Reasner must show that (1) OCS owed her a duty of care, 

(2) OCS breached that duty, (3) she was injured, and (4) her injury was the factual and 

proximate result of OCS’s breach. See Regner v. N. Star Volunteer Fire Dep’t, Inc., 323 

P.3d 16, 21 (Alaska 2014); Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 

(Alaska 2012). 

16 See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991) (noting that while 

the need for the discovery rule is most apparent “where the plaintiff’s injury is 

undiscovered and reasonably undiscoverable,” Alaska’s formulation of the discovery rule 

“is broad enough to cover other undiscovered and reasonably undiscoverable elements 

such as whether the cause of the injury was tortious”). See also Sopko v. Dowell 

Schlumberger, Inc., 21 P.3d 1265, 1270 (Alaska 2001) (citing Pedersen and stating that 

discovery rule in tort suits “protects plaintiffs whose injury is known but the cause is not 

reasonably discoverable during the limitations period”). Cf. Mine Safety Appliances Co., 

756 P.2d at 291-92, (affirming summary judgment decision that under the discovery rule 

the statute of limitations for a product defect in a worker’s helmet began to run from the 

date of the accident involving head injuries and damage to the helmet, rather than date the 

plaintiff actually discovered the helmet was defective). 

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to remain in the Allison home and (2) that Reasner told a counselor in 2007 that she had 

reviewed her OCS and adoption records. 

Summary judgment, however, “is appropriate only when no reasonable 

person could discern a genuine factual dispute on a material issue.”17 We conclude that 

a genuine factual dispute exists concerning when Reasner discovered information 

suggesting that OCS had played a role in allowing her to be abused. First, we note that 

when ruling on a summary judgment motion, a court must construe all reasonable factual 

inferences in favor of the non-moving party.18 Applying that standard, the events relied 

upon by the superior court do not justify the superior court’s ultimate conclusion that 

Reasner had information suggesting OCS’s role in her abuse as early as 2007. The fact 

that Reasner reported her abuse to OCS while in OCS custody only establishes that 

Reasner knew a report about J.R. had been made to OCS. It does not establish, at least 

for the sake of summary judgment, that Reasner knew that OCS previously had known 

J.R. was dangerous or that Reasner knew that OCS previously had told Myna that J.R. 

was not allowed to be around the home. The 2007 counselor’s report is similarly 

unhelpful. It stated only that “[a]t the age of 18 she looked up her OCS records and 

adoption records. She feels like her adoptive parents lied to her for 14 years.” The 

counselor’s report did not contain any details as to what documents Reasner actually 

reviewed or whether she understood their contents. In a second affidavit accompanying 

her motion to reconsider, Reasner stated that she had only reviewed some adoption 

records in her mother’s closet, not her OCS records. Indeed, as Reasner points out on 

appeal, OCS was not permitted to disclose her records under 7 Alaska Administrative 

Code (AAC) 54.050(1). 

Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). 

18 Id. 

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Moreimportantly, theconclusionreachedbythesuperior courtwas directly 

contradicted by Reasner’s own sworn affidavit. In that affidavit Reasner asserted “the 

first time that [she] had information that OCS was negligent in failing to protect [her] 

from [J.R.]” was on November 9, 2011, because that was the date her former OCS 

caseworker told her that “OCS knew that [J.R.] was dangerous, and [that OCS] had told 

Myna Allison that he was forbidden to be around the home or any of the foster children.” 

As we have stated, “[a]ny admissible evidence in favor of the nonmoving party 

concerning a material fact is sufficient” to withstand summary judgment.19 Reasner’s 

sworn affidavit constitutes admissible evidence and is relevant to determining when 

Reasner discovered sufficient information “to alert a reasonable person to begin an 

inquiry to protect [her] rights.”20 Rather than resolving this issue at the summary 

judgment stage, the superior court should have held an evidentiary hearing to resolve the 

preliminary question of fact concerning when the statute of limitations on Reasner’s 

claims began to run.21 

OCS also asks us to affirm the superior court’s ruling on a different basis: 

that “Reasner’s knowledge that she suffered sexual molestation while in OCS custody 

19 Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007). 

20 Cameron v. State, 822 P.2d 1362, 1366 (Alaska 1991). 

21 Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 725 (Alaska 2006). 

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triggered the duty to investigate OCS.”22 In other words, OCS asks us to hold that, as a 

matter of law, a child who suffers sexual abuse while in OCS custody is aware or should 

be aware that OCS may have played a role in allowing the child to be abused. 

We implicitly rejected a similar argument in Catholic Bishop of Northern 

Alaska v. Does 1-6. 

23 In that case the plaintiffs sued two institutional defendants, the 

Catholic Bishop of Northern Alaska and the Society of Jesus, Oregon Province, alleging 

sexual abuse by a priest many decades earlier.24 We allowed their case to proceed past 

the motion to dismiss stage, noting that “[u]nder the discovery rule, the date on which the 

statute of limitations begins to run is a question of fact” and that we could not “rule out 

the possibility that evidence may be introduced that will show that the statute of 

limitations has not run.”25 We therefore implicitly concluded that a child who has been 

sexually abused does not, as a matter of law, have sufficient information to prompt a 

reasonable person to inquire into potential claims against institutional defendants.26 

22 We may affirm the superior court’s grant of summary judgment “on any 

basis supported by the record, even if that basis was not considered by the court below 

or advanced by any party.” Powercorp Alaska, LLC v. Alaska Energy Authority, 290 

P.3d 1173, 1181 (Alaska 2012) (quoting Smith v. Stafford, 189 P.3d 1065, 1070 (Alaska 

2008)). 

23 141 P.3d 719. 

24 Id. at 720. 

25 Id. at 725. 

26 We have found in some cases that plaintiffs are on inquiry notice from the 

date of injury, even when they lack knowledge of specific facts indicating that a particular 

defendant had played a role in causing that injury. See, e.g., Palmer v. Borg-Warner 

Corp., 818 P.2d 632, 635 (Alaska 1990) (holding that the estate of passenger killed in an 

airplane crash was on inquiry notice of potential claims against an airplane engine 

component manufacturer when the estate discovered that the crash had occurred); Mine 

(continued...) 

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Applying that conclusion here, we decline to affirm the superior court on 

OCS’s proposed alternative basis, and we therefore reverse the superior court’s grant of 

summary judgment.27 

2. Alaska Statute 09.10.065(a) does not apply to Reasner’s claims. 

Reasner argues that even if her claims are untimely under AS 09.10.070, 

they are timely as a matter of law under a different statute, AS 09.10.065(a). We 

disagree. 

Alaska Statute 09.10.065(a) allows a person to bring a suit “at any time for 

conduct that would have, at the time the conduct occurred, violated provisions of any of” 

26 (...continued) 

Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska 1988) (holding that plaintiff 

who suffered a head injury while wearing a protective helmet designed to prevent such 

injuries was on inquiry notice of potential product defect claims from the date of injury); 

As we indicated in those cases, however, the nature of the injury and identity of the 

potentially negligent parties is critical to this analysis. In Palmer, for example, we 

concluded that notice of an airplane crash put the plaintiff on notice of potential 

negligence claims against an airplane engine component manufacturer because “[t]he 

general safety record of air travel and the present state of air technology compel[led] us 

to conclude that air crashes do not normally occur absent negligence” by “the pilot, the 

carriers, or the manufacturers.” Palmer, 818 P.3d at 634 (quoting Widmyer v. Se. 

Skyways, Inc., 584 P.2d 1, 14 (Alaska 1978)). That same reasoning does not apply here: 

the obvious cause of child sexual abuse is the intentional action of the abuser, and there 

is no evidence at this juncture suggesting that such abuse does not normally occur in 

foster homes absent negligence by the supervisory agency. . 

27 Reasner also asserts other grounds for tolling the two-year statute of 

limitations in her case, including mental incompetency under AS 09.10.140(a) and that 

she did not connect her sexual abuse to her psychological injuries until she resumed 

counseling in 2011. OCS argues that these arguments were waived because Reasner 

failed to raise them in a timely fashion. But even if Reasner waived those alternative 

tolling grounds for the sake of the present appeal, she is still free to raise them on 

remand, and thus we do not need to reach those arguments. 

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five listed felony offenses, including felony sexual abuse of a minor.28 The question we 

must resolve is whether Reasner’s suit against OCS is “for conduct” that amounted to 

felony sexual abuse of a minor. 

We review a superior court’s interpretation of a statute de novo.29 We 

interpret the statute “according to reason, practicality, and common sense, considering the 

meaning of the statute’s language, its legislative history, and its purpose.”30 We apply “a 

sliding scale approach, where ‘[t]he plainer the statutory language is, the more convincing 

the evidence of contrary legislative purpose or intent must be.’ ”31 

We conclude that Reasner’s suit against OCS is not subject to the extended 

limitations period provided in AS 09.10.065(a). First, Reasner’s suit falls outside the 

plain language of AS 09.10.065(a). Reasner argues that her suit against OCS is “for 

conduct” that amounted to “felony sexual abuse of a minor” and that she is therefore 

permitted under AS 09.10.065(a) to bring that suit “at any time.” But Reasner, of course, 

is not alleging that OCS committed felony sexual abuse of a minor; rather, she argues that 

J.R. committed the underlying crime and that OCS was negligent in failing to protect her 

from his conduct. Reasner’s suit against OCS can thus only be characterized as “for” the 

negligent conduct of OCS — conduct which Reasner admits did not constitute felony 

28 AS 09.10.065(a) (emphasis added). 

29 Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194, 197 (Alaska 2014). 

30 Parson v. State, Dep’t. of Revenue, Alaska Hous. Fin. Corp., 189 P.3d 1032, 

1036 (Alaska 2008). 

31 State, Commercial Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 762 

(Alaska 2012) (alteration in original) (quoting Gov’t Emps. Ins. Co. v. Graham-Gonzalez, 

107 P.3d 279, 284 (Alaska 2005)). 

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sexual abuse of a minor.32 Therefore Reasner’s negligence suit against OCS is not “for 

conduct” constituting felony sexual abuse of a minor, and we conclude that her suit falls 

outside the plain language of AS 09.10.065(a). 

Because Reasner asks us to interpret AS 09.10.065(a) in a manner 

inconsistent with the plain language of the statute, we will adopt her proposed 

construction only if we can find convincing evidence of contrary legislative purpose or 

intent to include suits like Reasner’s — i.e., negligence suits against non-perpetrators — 

within the scope of AS 09.10.065(a). Reasner points to a change in the statutory language 

from “against the perpetrator” to “for conduct . . . violat[ing]” as indicating an intent to 

include negligence suits against non-perpetrators within the scope of AS 09.10.065(a).33 

According to Reasner this change indicates a legislative intent to permit “suits against 

third parties who are legally responsible for allowing [sexual] abuse to occur.” But as we 

have stated before, “the absence of greater discussion is a meaningful indication that the 

[legislature] was not charting a radical course,”34 and nothing in the legislative history 

suggests that by making this change the legislature intended to broaden the application 

of the statute to include negligence suits.35 Reasner also points to legislative committee 

32 See AS 11.41.434, .436, and .438. In Catholic Bishop we left undecided the 

similar question whether AS 09.10.065(a) applies to vicarious liability claims against 

non-perpetrators. Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 

2006). That issue is not raised by this case because Reasner is suing OCS for its own 

negligent conduct, not under a theory of vicarious liability. 

33 See former AS 09.10.060(c) (2000). 

34 Glover v. State, Dep’t of Transp., Alaska Marine Highway Sys., 175 P.3d 

1240, 1248-49 (Alaska 2008) (emphasis in original). 

35 See Ch. 86, § 1, SLA 2001; Ch. 40, § 1, SLA 2003; see also Catholic 

Bishop, 141 P.3d at 722-23 (discussing the legislative history of AS 09.10.065). 

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minutes expressing a general policy of expanding victims’ access to courts.36 But such 

general statements do not indicate an intent to cover claims that are not “for conduct . . . 

violat[ing]” any of the listed felony offenses. 

Finally, we find that our approach is consistent with the approach taken by 

courts in other jurisdictions interpreting similar statutes.37 We therefore conclude that 

AS 09.10.065(a) does not apply to Reasner’s action against OCS. 

3.	 The superior court should first determine whether AS 09.10.055 

applies to Reasner’s claims before reaching her as-applied 

constitutional challenge. 

OCS argued below that even if Reasner’s claims were timely under the 

discovery rule or under AS 09.10.065(a), Alaska’s statute of repose would still bar them. 

Alaska’s statute of repose extinguishes all personal injury actions (subject to certain 

exceptions) unless commenced within ten years of “the last act alleged to have caused the 

personal injury.”38 The superior court rejected OCS’s argument, concluding that the 

statute of repose was unconstitutional as applied to “facts in which the child’s legal 

custodians are the alleged tortfeasors” because it would deny minors access to courts and 

36 See Minutes, H. Jud. Comm. Hearing on H.B. 210, 22nd Leg., 1st Sess. 

(Apr. 9, 2001) (comments by Representative Ethan Berkowitz and the Executive Director 

of the Council on Domestic Violence and Sexual Assault). 

37 See, e.g., Sandoval v. Archdiocese of Denver, 8 P.3d 598, 602 (Colo. App. 

2000) (holding that an analogous Colorado statute does not encompass actions for 

negligent hiring or supervision by an employer); Kelly v. Marcantonio, 678 A.2d 873, 

875-76 (R.I. 1996) (holding that an analogous Rhode Island statute only applies to actions 

against the perpetrator). 

38 AS 09.10.055(a)(2). 

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therefore violate due process.39 But the superior court never made an initial determination 

that the statute of repose actually would bar Reasner’s claims. 

For a statute to be unconstitutional as applied to a particular set of facts, the 

statute must actually apply to those facts. The United States Supreme Court has called 

it “an uncontroversial principle of constitutional adjudication . . . that a plaintiff generally 

cannot prevail on as as-applied challenge without showing that the law has in fact been 

(or is sufficiently likely to be) unconstitutionally applied to [her].”40 

Here, however, it is possible that the statute of repose does not bar Reasner’s 

claims or only bars some of them. First, the statute of repose requires claims to be filed 

within ten years of “the last act alleged to have caused the personal injury, death, or 

property damage.”41 Reasner brought her claim on December 3, 2012, and alleges that 

OCS received reports that she was being sexually abused in 2004 and 2006 — less than 

ten years before she sued — and negligently failed to protect her. Second, the effective 

date of AS 09.10.055 is August 7, 1997.42 Reasner argues that even if OCS did not 

commit any negligent acts after December 2002, she would still be able to proceed with 

39 We note that this conclusion goes beyond our previous holdings. See Sands 

ex rel. Sands v. Green, 156 P.3d 1130, 1133-36 (Alaska 2007) (striking down a statutory 

provision excluding children under the age of eight from the broad tolling provisions 

granted to other minors, but not addressing the constitutionality of the statute of repose); 

Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067-68 (Alaska 2002) (plurality opinion) 

(holding Alaska’s statute of repose facially constitutional in response to equal protection 

and due process challenges). 

40 McCullen v. Coakley, 134 S. Ct. 2518, 2534 n.4 (2014) (emphasis in 

original); cf. Kyle S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

309 P.3d 1262, 1268 (Alaska 2013) (“An as-applied challenge requires evaluation of the 

facts of the particular case in which the challenge arises.”). 

41 AS 09.10.055(a)(2). 

42 Ch. 26, § 55, SLA 1997. 

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her claims based on multiple acts prior to AS 09.10.055’s effective date. Finally, 

AS 09.10.055(b)(1) provides that the statute of repose does not apply when the damages 

resulted from, among other things, gross negligence, misrepresentation, or breach of 

fiduciary duty. Reasner argues that those three exceptions are applicable to her case. 

Because the superior court decided that the statute of repose was 

unconstitutional as applied to Reasner’s claims without first deciding whether the statute 

actually applied to those claims, we reverse that portion of the superior court’s order. On 

remand, the superior court should determine whether the statute of repose applies to 

Reasner’s case before it considers Reasner’s as-applied constitutional challenge. 

B. Whether Reasner’s Claims Survive Summary Judgment On The Merits 

1. Discretionary function immunity 

The Alaska Tort Claims Act authorizes tort claims against the State,43 but 

the State is immune from claims “based upon the exercise or performance or the failure 

to exercise or perform a discretionary function or duty on the part of a state agency or an 

employee of the state, whether or not the discretion involved is abused.”44 As we have 

previously stated, “[t]wo varieties of agency action are not covered by discretionary 

function immunity: those involving no discretion and those involving ‘only discretion 

free from policy considerations.’ ”45 “Whether a governmental act is entitled to 

discretionary function immunity is . . . a matter of law that is reviewed de novo.”46 

43 AS 09.50.250. 

44 AS 09.50.250(1) (emphasis added). 

45 State, Dep’t of Health & Soc. Servs. v. Mullins, 328 P.3d 1038, 1043 (Alaska 

2014) (quoting R.E. v. State, 878 P.2d 1341, 1349 (Alaska 1994)). 

46 State, Dep’t of Corr. v. Cowles, 151 P.3d 353, 358 (Alaska 2006). 

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a.	 OCS is not generally immune from suit for negligent 

investigation. 

One of Reasner’s claims is that OCS negligently investigated the reports that 

she was being sexually abused. OCS argues that it is immune from suit for negligent 

investigation because social worker investigations involve the use of discretion and are 

therefore protected by discretionary function immunity. But as we have previously 

explained, “ ‘the allegedly negligent decisions in a particular case must be examined 

individually to determine if they are’ protected by discretionary function immunity.”47 

The superior court did that in this case, and OCS has not challenged its individual 

determinations. We therefore turn to Reasner’s argument on this point. 

b.	 OCS was not entitled to summary judgment on Reasner’s 

claims that OCS failed to maintain the requisite 

“minimum contacts” with her foster family. 

The superior court granted OCS summary judgment on Reasner’s claim that 

OCS had failed to conduct the requisite number of home visits while she was in foster 

care, because it found that OCS’s policy governing such “minimum contacts” was 

protected by discretionary function immunity. Reasner argues that this conclusion was 

erroneous with respect to the OCS policy in place between January 1998 and April 1999. 

We agree with Reasner. 

OCS amended its policy governing minimum contacts with foster families 

in January 1998. Before that date OCS’s policy required OCS to conduct at least one 

face-to-face family contact every three months, and “in-home contacts to family [were] 

required in addition to placement contacts with the child.” But OCS’s policy also 

provided that “[a]ctual delivery of this minimum service level [was] dependent on 

Mullins, 328 P.3d at 1044 (emphasis added) (quoting Cowles, 151 P.3d at 

359). 

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workload size.” Given this “workload size” caveat, the superior court determined that 

OCS was protected by discretionary function immunity under the pre-1998 policy 

because “the actual number of contacts is discretionary rather than mandatory.”48 

When OCS amended the policy in January 1998 it retained the requirement 

of “in-home contacts to family . . . in addition to placement contacts with the child.” But 

it omitted the “workload size” caveat and allowed “[c]hanges in service level [to] be 

made only after a service level review.” Reasner argues that OCS is not protected by 

discretionary function immunity under the post-1998 policy and that, because this new 

policy was in effect for the last five quarters that she was in OCS’s legal custody, she 

should be allowed to proceed on her negligent investigation claim. 

We agree. The post-1998 policy language allows for either “no discretion” 

or “only discretion free from policy considerations,” at least until a “service level review” 

has been conducted.49 Because this new policy was in effect for a period of time during 

which OCS had legal custody of Reasner, she should have been allowed to proceed on 

her negligent investigation claim. 

c.	 Reasner has not challenged the actual grounds of the 

superior court’s grant of summary judgment on her 

ICWA-related claims. 

Reasner also asserted below that OCS has policies and procedures adopting 

provisions of the Indian Child Welfare Act (ICWA) and that her OCS caseworkers failed 

to follow these policies. The superior court found that OCS’s “adoption of policies and 

procedures intended to implement ICWA requirements represent[s] its efforts to balance 

the requirements of federal law with state economic and political policy factors” and that 

48 Reasner has not challenged the superior court’s conclusion and we do not 

address the court’s ruling on that point. 

49 Mullins, 328 P.3d at 1043 (quoting R.E., 878 P.2d at 1349). 

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a violation of those policies was therefore protected by discretionary function immunity. 

The superior court was careful to note that it was only ruling on Reasner’s specific claims 

and that “[i]t is possible that there are claims regarding violation of OCS procedures 

implementing ICWA that would not be protected by discretionary function immunity.” 

On appeal Reasner argues that this was error because she is merely alleging 

“a straightforward negligence claim against OCS and cit[ing] OCS’s violations of the law 

as evidence of OCS’s negligence.” She therefore argues that the superior court erred in 

granting summary judgment to OCS “on the ground that these authorities do not create 

a direct cause of action.” 

But as we have just explained, the superior court granted summary judgment 

to OCS on Reasner’s ICWA-related claims because it found that OCS is protected by 

discretionary function immunity, not because the claims do not create a direct cause of 

action. Absent a passing assertion in her reply brief that “OCS incorporated provisions 

of [ICWA] into mandatory policy,” Reasner has not challenged the actual basis for the 

superior court’s decision. We therefore affirm the superior court’s grant of summary 

judgment to OCS on Reasner’s ICWA-related claims, but we express no opinion whether 

the superior court was substantively correct when it determined that OCS is protected 

from those claims by discretionary function immunity. 

2.	 There is a genuine dispute whether Reasner’s foster parents 

completed the required training. 

Reasner alleged that OCS negligently monitored the foster home in part 

because it did not require her foster parents to complete mandatory foster parent 

orientation or follow-up annual training.50 The superior court granted OCS partial 

50 See former 7 AAC 50.433 (1990). 

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summary judgment on this claim because it found that Reasner “ha[d] not provided any 

evidence that the required orientation and trainings did not occur.” We disagree. 

As we have explained above, a court must construe all reasonable factual 

inferences in favor of the non-moving party.51 “[S]ummary judgment is appropriate only 

when no reasonable person could discern a genuine factual dispute on a material issue.”52 

Here, Reasner presented the Allisons’ training record from Alaska Center for Resource 

Families, which indicated that the Allisons had not completed the necessary training at 

that facility. Reasner also presented evidence from a 1998 adoption home study 

indicating that the Allisons “ha[d] been slow to become comfortable with [support] 

services.” Finally, Reasner provided an internal OCS email from January 1998 stating 

“[o]ne of the items we are planning is to require that [the Allisons] go to our adoption 

preparation series. They have been invited a number [of] time[s] over the past years. 

When they have attended, they have only come for one session, so they have never 

completed the series.” OCS, on the other hand, presented no direct evidence showing that 

the Allisons had actually completed the training and admitted that the Allisons’ licensing 

file was no longer available because it had been purged three years before “as part of 

OCS’s routine file retention policy.” 

Under Alaska’s lenient standard for surviving summary judgment, there is 

a genuine dispute as to whether the Allisons had completed the required courses and 

training. Summary judgment on this issue was therefore inappropriate. 

Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 520 (Alaska 2014). 

52 Id. 

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3.	 The superior court correctly concluded that OCS was not 

entitled to summary judgment as to causation. 

On cross-appeal OCS argues that Reasner failed to demonstrate a causal 

nexus between OCS’s failure to require the Allisons to complete the required training and 

Reasner’s harm. But reasonable inferences from the admissible evidence demonstrate a 

dispute as to this causal connection. For example, a reasonable person could infer that 

if the Allisons had completed the required training, they would have been able to identify 

warning signs of sexual abuse and taken steps to protect Reasner. Furthermore, if the 

Allisons did fail to complete the required training, then OCS might have been required 

to remove Reasner from their home because a foster home must be licensed every two 

years. Given these possible inferences, a reasonable person could discern a genuine 

factual dispute as to whether OCS’s failure to remove Reasner was also a proximate cause 

of her harm.53 

We also reject OCS’s argument that its failure to make quarterly in-person 

visits between January 1998 and April 1999 lacks a causal nexus with Reasner’s harm. 

The superior court found that “[r]easonable jurors could conclude that ‘but for’ the lack 

of contact, OCS would have become aware that Ms. Reasner was being abused and/or 

that it would have more fully investigated the reports that she was being sexually and/or 

physically abused, which could have resulted in OCS substantiating the reports and taking 

action to protect her from harm.” Although the superior court’s analysis should have 

focused on whether a reasonable person could discern a factual dispute, and not on 

whether a reasonable juror could find for Reasner,54 we agree with the superior court’s 

ultimate conclusion that summary judgment on the issue of causation was inappropriate. 

53 See id. 

54 See id. at 520-21. 

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IV. CONCLUSION 

For the reasons stated above, we REVERSE the superior court’s summary 

judgment order in part and REMAND for proceedings consistent with this opinion. 

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