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, 

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THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA, 

DEPARTMENT OF HEALTH AND 

SOCIAL SERVICES, 

Appellant, 

v. 

ALECIA RAE MULLINS, SHAYNA

LYNN MULLINS, JACK 

DOMINICK, ANGELA MICHELLE 

McCOY aka ANGELA 

MICHELLE MULLINS aka 

ANGELA MICHELLE FULTON, 

and BARBARA DOMINICK 

(DECEASED), 

Appellees. 

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Supreme Court No. S-14981 

Superior Court No. 3KN-10-00532 CI 

O P I N I O N 

No. 6919 – June 27, 2014 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Kenai, Carl Bauman, Judge. 

Appearances: Ruth Botstein, Assistant Attorney General, 

Anchorage, Janell M. Hafner, Assistant Attorney General, 

and Michael C. Geraghty, Attorney General, Juneau, for 

Appellant. Michael C. Kramer, Kramer and Associates, 

Fairbanks, for Appellees Alecia and Shayna Mullins. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

BOLGER, Justice. 
 

 

 

 

 

 

 

 

 

I. INTRODUCTION 

Two sisters reported that they were abused by their grandparents while they 

were entrusted to the legal custody of the Office of Children’s Services (OCS). The 

sisters sued OCS, and a jury awarded them substantial damages, concluding that OCS 

was responsible for 95% of their damages and that their grandparents were not 

responsible for any of their damages. On appeal, OCS argues that this verdict should be 

set aside. Because the evidence supporting the jury’s allocation of fault was so 

insubstantial as to make the verdict plainly unreasonable, we conclude that OCS is 

entitled to a new trial. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Alecia Mullins was born in 1990, and Shayna Mullins was born in 1992. 

Throughout their childhood, their mother, Angela McCoy, abused drugs and alcohol and 

was involved in a violent and abusive relationship with her then-husband, Chris McCoy. 

In September 1998, after receiving a report that Alecia and Shayna were at 

1 risk of immediate physical harm from Chris McCoy, OCS took emergency custody of

the children. They were then placed with their grandparents, Jack and Barbara 

Dominick. Jack and Barbara were licensed as the Mullinses’ foster parents from 

September 1998, until January 2001, when they became Alecia and Shayna’s legal 

guardians. 

While Alecia and Shayna were living with their grandparents, they were 

seeing a counselor to help them cope with the abuse they had experienced when they 

were younger. The counselor, Linda Jacobsen, noted that Alecia was experiencing night 

During a portion of the time relevant to this appeal, OCS was called the 

Division of Family and Youth Services. We refer to the agency as OCS to avoid 

confusion. 

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terrors, and that night terrors could be a sign of sexual abuse. But Jacobsen testified at 

trial that she never suspected that anyone was abusing Alecia or Shayna while she was 

counseling them. She wrote a letter reporting her observations to Alecia and Shayna’s 

guardian ad litem and an OCS employee. 

In March 2001, Alecia and Shayna revealed that their grandfather had been 

sexually abusing them for some time. Alecia testified that the abuse lasted between three 

and a half and four years. 

Jack left the home immediately after the abuse was disclosed. He pleaded 

no contest to three counts of sexual abuse of a minor shortly thereafter. Although Jack 

never returned to his home, there was testimony that Barbara met with him in a parking 

lot while Alecia and Shayna were present and frequently spoke with him on the phone 

in the evenings. 

After Jack’s abusive behavior was disclosed, Barbara became angry and 

violent. Alecia testified that Barbara slapped her in the face after Alecia told her 

something that Barbara “didn’t like.” Barbara also hit Alecia and Shayna with wooden 

spoons. OCS investigated these incidents but found that they did not constitute physical 

abuse. Some witnesses testified that Barbara’s behavior reflected the fact that she was 

struggling to believe and accept that Jack had abused her grandchildren. 

In June 2002, at her request, Barbara’s guardianship was terminated and 

Alecia and Shayna were returned to their mother. However, this placement was shortlived; the family’s home life quickly deteriorated, and the children were removed from 

their mother again in September 2003 when Angela was arrested for assaulting Chris. 

Alecia and Shayna were then placed in foster care. There was testimony 

that the foster parents were abusive as well. 

In January 2004, Alecia was placed with a friend’s family. And in the same 

year, Shayna was placed with a different foster family. In 2006, Shayna was placed with 

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her biological father in Minnesota, and Alecia was permanently placed with two relatives 

in Washington. Both children were released from OCS custody following these 

placements. 

B. Proceedings 

Alecia and Shayna filed a complaint against OCS and Jack Dominick in the 

Kenai Superior Court. They alleged that OCS had a duty to protect them from harm and 

that OCS negligently breached that duty. As to Jack, they alleged that he committed 

assault and battery against them and negligently harmed them.2

 OCS filed an answer and 

a third-party complaint against Angela McCoy and Barbara Dominick.3 

During trial, the Mullinses developed several theories under which the jury 

could hold OCS liable. They argued, among other things, that OCS negligently failed 

to investigate Linda Jacobsen’s 1999 report that Alecia was suffering from night terrors; 

that OCS failed to provide Alecia and Shayna with adequate mental health services while 

they were in OCS custody; that OCS negligently investigated reports that Barbara was 

physically abusing Alecia; and that OCS negligently failed to remove Alecia and Shayna 

from Barbara’s custody after Barbara became abusive. 

Before trial, OCS moved for partial summary judgment on the ground that 

several of the Mullinses’ claims were based on conduct protected by discretionary 

function immunity. Although the superior court agreed that OCS “is entitled to 

immunity for discretionary functions on planning and policy matters,” it concluded that 

“[a]pplication of the immunity provided by law will involve a claim-by-claim analysis 

based on the evidence presented” and that “the plaintiffs have asserted and presented 

2 Before trial, the Mullinses sought to dismiss their complaint against Jack, 

explaining that “we’ve basically decided that we don’t need to sue Jack directly 

anymore.” But the court did not allow the dismissal. 

3 Barbara passed away in 2006, before this litigation began. 

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sufficient potential evidence to withstand dismissal at this time.” Therefore, the court 

denied the agency’s motion but permitted OCS to “renew its request for immunity as to 

particular claims at the close of plaintiffs’ case in chief.” 

Accordingly, OCS moved for a directed verdict based on discretionary 

function immunity at the close of the Mullinses’ case in chief. The court denied that 

motion as well, concluding that the scope of OCS’s liability would be addressed in the 

jury instructions. The court instructed the jury: 

In deciding whether OCS exercised reasonable care 

you may not find that OCS should have adopted different or 

better policies and procedures, or that it should have done 

something more than required by its policies and procedures. 

. . . . 

As a matter of law, you may not find OCS liable for 

placing Alecia and Shayna Mullins in foster care . . . . As a 

state agency, OCS is immune from liability for discretionary 

functions such as these. 

However, you may hold OCS liable for failing to 

comply with its own policies designed to protect the children 

under OCS care or for negligently carrying out its duties 

towards Alecia and Shayna Mullins. 

. . . . 

You may not find that OCS failed to exercise 

reasonable care toward Alecia Mullins and Shayna Mullins 

in making decisions regarding the allocation of money, 

employees and other resources. OCS cannot be held liable 

for its resource allocation decisions. You may only consider 

whether OCS employees who had responsibilities toward 

Alecia Mullins and Shayna Mullins exercised reasonable 

care. 

OCS did not object to these instructions. 

The jury returned a verdict stating that OCS was negligent with respect to 

both Alecia and Shayna and that the agency’s negligence was a substantial factor in 

causing harm to both women. And although the jury was instructed that “Jack 

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Dominick, by virtue of his no contest plea, cannot deny” that he abused both Alecia and 

Shayna, it found that Jack’s conduct did not cause harm to either Alecia or Shayna. 

The jury awarded Alecia $350,000 in future economic damages, $500,000 

in past non-economic damages, and $150,000 in future non-economic damages to Alecia 

and $400,000 in future economic damages, $500,000 in past non-economic damages, and 

$150,000 in future non-economic damages to Shayna. It allocated 95% of the fault for 

these damages to OCS, 5% to Angela McCoy, and none to either Barbara or Jack. 

OCS moved for judgment notwithstanding the verdict or, in the alternative, 

a new trial, arguing that the jury’s verdict was “contrary to the weight of the evidence, 

internally inconsistent, and plainly motivated by passion and prejudice.” In particular, 

the agency argued that “the jury’s allocation of zero fault to Jack Dominick is not 

supported by the evidence.” The superior court denied the motion. 

OCS appeals. 

III.	 DISCUSSION 

A.	 The Evidence Supporting The Jury’s Allocation Of Fault Was So 

Insubstantial That The Verdict Was Plainly Unreasonable. 

OCS argues that it was error to deny its motion for a new trial because the 

jury’s allocation of 95% of the fault for the Mullinses’ harm to OCS and 0% to Barbara 

and Jack Dominick was “irrational and against the weight of the evidence.” The 

Mullinses respond that the allocation was proper for two reasons: first, because the 

Mullinses “made it clear that they were only pursuing negligence claims against OCS for 

4 its action and inactions following disclosure” of Jack’s sexual abuse; and second, that

OCS can reasonably be held solely liable for the acts of other tortfeasors when OCS 

negligently fails to protect children from those tortfeasors. 

Emphasis added. 

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The denial of a motion for a new trial is reviewed for abuse of discretion.5 

We will reverse the superior court’s decision to deny such a motion only “if the evidence 

supporting the verdict was so completely lacking or slight and unconvincing as to make 

the verdict plainly unreasonable and unjust.”6 

Alaska Statute 09.17.080(a) provides: 

In all actions involving fault of more than one person, 

including third-party defendants and persons who have 

settled or otherwise been released, the court, unless otherwise 

agreed by all parties, shall instruct the jury to answer special 

interrogatories or, if there is no jury, shall make findings, 

indicating . . . 

. . . . 

(2)	 the percentage of the total fault that is allocated to each 

claimant, defendant, third-party defendant, person who 

has been released from liability, or other person 

responsible for the damages . . . . 

“In determining the percentages of fault, the trier of fact shall consider both the nature 

of the conduct of each person at fault, and the extent of the causal relation between the 

conduct and the damages claimed.”7 

Contrary to their representations on appeal, the Mullinses’ arguments at 

trial were not limited to OCS’s actions following the disclosure of Jack’s sexual abuse 

on March 7, 2001. In particular, the Mullinses argued that a 1999 psychological 

assessment of Alecia, which suggested that Alecia’s night terrors were symptomatic of 

sexual abuse, gave OCS notice that Alecia was suffering from sexual abuse at that time. 

5 Babinec v. Yabuki, 799 P.2d 1325, 1327 (Alaska 1990) (internal quotation 

marks omitted). 

6 Kingery v. Barrett, 249 P.3d 275, 283 (Alaska 2011). 

7 AS 09.17.080(b). 

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And during closing argument, the Mullinses asked for $500,000 each in non-economic 

damages to compensate them for the year and a half of “preventable sexual abuse” that 

occurred between the time that OCS was allegedly notified that Alecia was being abused 

and the time that Alecia and Shayna reported the abuse in 2001. 

The Mullinses also argue that it was proper for the jury to allocate 95% of 

the fault to OCS because OCS’s negligence enabled Barbara and Jack to commit torts 

against the Mullinses. But courts in other jurisdictions have held that it is irrational to 

assign the majority of fault to a negligent tortfeasor when both negligent and intentional 

tortfeasors are responsible for harm suffered by a plaintiff. 

For example, in Pamela B. v. Hayden, in which a rape victim sued the 

owner and the manager of the apartment building in which the rape occurred, a jury 

allocated 95% of the fault to the owner and manager and only 4% to the rapist.8 The 

California Court of Appeal held that this allocation of fault was irrational: 

How can the man who grabbed Pamela from behind, held a 

knife to her throat, threatened to kill her, forced her to strip, 

raped her, forced her to orally copulate him, raped her again, 

stuffed her into the trunk of a car and left her there (as he 

escaped in her boyfriend’s car) be only four percent at fault 

for her injuries? To ask the question compels the answer. He 

[ ] cannot. 9

The California Court of Appeals overturned a similar allocation of fault in 

Scott v. County of Los Angeles.

10 Although the Scott court acknowledged that some fault 

8 31 Cal. Rptr. 2d 147, 149-50 (App. 1994), review granted, 880 P.2d 112 

(Cal. 1994), review dismissed, 889 P.2d 539 (Cal. 1995). 

9 Id. at 160. 

10 32 Cal. Rptr. 2d 643 (App. 1994). 

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might be attributed to a children’s services agency that failed to investigate several 

reports of harm to a child, the court concluded that 

the evidence cannot be stretched to support an apportionment 

of 99 per cent of the fault to the negligent defendants and 

only 1 per cent to the person who filled a tub with scalding 

water, lifted [the child] into it and held her there until her 

flesh was burned to the bone. No reasonable jury could 

conclude [the abuser’s] fault was as trifling as the jury’s 

[ ] allocation would suggest. 11

In this case, the jury was instructed that Jack committed at least one act of 

sexual abuse against both Shayna and Alecia, and there was exhaustive testimony at trial 

about the abuse committed by both Jack and Barbara. Given this evidence, it was simply 

irrational to conclude that Jack and Barbara were zero percent responsible for the results 

of the intentional (and even criminal) acts that they committed.12 Because the jury’s 

verdict was plainly unreasonable, it was an abuse of discretion to deny OCS’s motion for 

a new trial.13 

We therefore remand for a new trial. Because the special verdict form 

instructed the jury to award damages caused only by the conduct of the persons it found 

were liable to the Mullinses, and the jury concluded that neither Jack nor Barbara caused 

11 Id. at 655-56. 

12 Cf. Grant v. Stoyer, 10 P.3d 594, 597 (Alaska 2000) (“[E]vidence that the 

accident did not cause some injury to Grant was so completely lacking, slight, and 

unconvincing as to make the verdict plainly unreasonable and unjust.”). 

13 See Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999) (“We will reverse 

a decision denying a new trial if the evidence supporting the verdict was so completely 

lacking or slight and unconvincing as to make the verdict plainly unreasonable and 

unjust.” (internal quotation marks omitted)). 

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harm to the Mullinses, it did not award damages based on Jack’s and Barbara’s conduct. 

Therefore, the new trial must revisit damages as well as allocation of fault. 

B.	 The Superior Court Should Examine The Mullinses’ Allegations Of 

Negligence To Determine If OCS’s Actions Are Protected By 

Discretionary Function Immunity. 

OCS also argues in its appeal that the trial court erred by permitting the jury 

to find it was liable for negligently performing various discretionary acts. It argues that 

such acts cannot be a basis for liability under Alaska law. The Mullinses respond that 

OCS failed to object to the jury instructions and the instructions on immunity do not 

constitute plain error. 

Because we reverse on the ground that the jury’s allocation of fault was 

irrational, we do not need to decide whether the superior court’s approach to discretionary 

function immunity was plainly erroneous. However, we take this opportunity to clarify 

the proper procedure for ensuring that the jury does not hold the state liable for its 

discretionary acts. 

Alaska Statute 09.50.250 provides that a person may bring an action in tort 

against the State of Alaska in any state court with jurisdiction over that claim. However, 

an action may not be brought if the claim . . . is 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 . . . . 14

AS 09.50.250. 

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Two varieties of agency action are not covered by discretionary function immunity: those 

involving no discretion and those involving “only discretion free from policy 

considerations.”15 

The first category includes actions that are required by agency regulations 

or policy. For example, in State, Department of Corrections v. Cowles, we held that, 

because Department of Corrections policy requires a parole officer to initiate a parole 

revocation proceeding in response to a “serious violation,”16 an officer’s response to a 

serious parole violation involves no discretion and, therefore, is not immune.17 But 

because Department policy requires no particular response to a minor parole violation, 

an officer’s response to such a violation is immune.18 

The second category includes actions that do not require the consideration 

of broad social, economic, and political policy factors. For example, once the state has 

made the policy decision to maintain a highway for winter travel, its actions 

implementing that decision — such as determining how many workers or how much 

equipment should be used to maintain the highway — are not immune.19 Such decisions 

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

16 Under the policy at issue in Cowles, a “serious violation” included “all 

felony behavior” as well as some serious misdemeanors. 151 P.3d 353, 360 (Alaska 

2006). 

17 Id. at 360-61. 

18 Id. at 361. 

19 State v. Abbott, 498 P.2d 712, 722 (Alaska 1972). 

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“simply do not rise to the level of governmental policy decisions calling for judicial 

restraint.”20 

Applying these principles, it appears that the jury instructions given in this 

trial did not adequately implement discretionary function immunity. In Instruction No. 

28, the superior court wrote: 

As a matter of law, you may not find OCS liable for 

placing Alecia and Shayna Mullins in foster care . . . . As a 

state agency, OCS is immune from liability for discretionary 

functions such as these. 

However, you may hold OCS liable for failing to 

comply with its policies designed to protect the children under 

OCS care or for negligently carrying out its duties towards 

Alecia and Shayna Mullins. 

As OCS notes, this instruction suggests that OCS may be held liable for failing to carry 

out its “duties,” discretionary function immunity notwithstanding. “[D]uties” appears to 

refer to the eleven duties listed in Jury Instruction No. 23. But at least one of those duties 

involves discretionary functions. 

For example, Instruction No. 23 provides that OCS has a duty “to protect 

children in the legal custody or supervision of OCS.” The pre-1999 version of the OCS 

Child Protective Services Manual21 provides: 

20 Id. 

This version of the Manual was superseded on July 1, 1999, and did not 

govern OCS’s actions during all the times relevant to this appeal. We refer to the 

Manual here for demonstrative purposes only. 

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The child welfare system must protect children. All child 

welfare protective activities and intervention must be toward 

the goal of protecting the child from harm. In the provision 

of services the safety of the child is always the first 

consideration in performing risk assessments, developing case 

plans, and identifying services for children and families. 

Safety of the child is paramount in all decisions [a]ffecting 

children. 

But this broad, aspirational policy statement cannot be a basis for liability. It calls for no 

specific action and in no way cabins the discretion of OCS officials in carrying out the 

agency’s mission.22 And decisions about how best to protect the welfare of children, like 

decisions whether to initiate parole revocation proceedings following a minor parole 

violation, involve the balancing of social, economic, and political policy factors.23 

Therefore, to the extent that Instruction No. 28 suggests that OCS may be held liable 

merely for failing to “protect children,” it misstates the law governing discretionary 

function immunity.24 

In Cowles, we explained that “the allegedly negligent decisions in a 

particular case must be examined individually to determine if they are” protected by 

discretionary function immunity. 25 The trial court should attempt to rule on these issues 

during pre-trial motion practice. But if specific factual questions necessary to the trial 

22 Cf. R.E. v. State, 878 P.2d 1341, 1350 (Alaska 1994). 

23 Cf. Cowles, 151 P.3d at 361 (“[W]hen the parole officer is given a choice, 

the decision whether or not to seek to revoke parole involves the same weighing of 

policy matters that a parole board engages in when it makes the final parole revocation 

decision.”). 

24 We express no opinion about whether OCS may be held liable for its failure 

to provide mental health services, its failure to conduct certain investigations, or any 

other act or omission alleged by the Mullinses. 

25 151 P.3d at 359. 

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court’s legal determinations need to be resolved by the jury, specific jury interrogatories 

should be used. In short, although the jury may need to decide the factual underpinnings 

of the trial court’s conclusions, discretionary immunity decisions must remain with the 

judge. 

We also note that the version of the OCS Child Protective Services Manual 

entered into the record was largely superseded in July 1999. That version of the Manual 

does not govern OCS’s actions after the date it became obsolete. On remand, when it 

performs its discretionary function analysis, the superior court must look to the version 

of the Child Protective Services Manual that was in effect at the time of each of OCS’s 

allegedly negligent actions.26 

IV. CONCLUSION 

The judgment of the superior court is REVERSED and this case 

REMANDED for a new trial. 

OCS also argues that it was error to deny its post-verdict motion for 

remittitur, that the Mullinses did not provide sufficient evidence to prove their future 

economic damages, and that the Mullinses’ closing argument was improper. Because 

we reverse on the grounds stated above, we do not reach these other claims. 

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