Dinsmore-Poff v. Alvord

• Decision Date: 05 February 1999
• Docket Number: No. S-7935,A,DINSMORE-POF,S-7935
• Parties: Donnappellant, v. Louis and Tina ALVORD, Appellees.
• Court: Alaska Supreme Court

Page 978

972 P.2d 978

Donna DINSMORE-POFF, Appellant, v. Louis and Tina ALVORD, Appellees.

No. S-7935.

Supreme Court of Alaska.

Feb. 5, 1999.

W. David Weed, Law Offices of W. David Weed, Anchorage, and LeRoy E. DeVeaux, DeVeaux and Associates, P.C., Anchorage, for Appellant.

Rod R. Sisson, Crosby & Sisson, P.C., Anchorage, for Appellees.

Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE and BRYNER, Justices.

OPINION

COMPTON, Justice.

I. INTRODUCTION

This appeal presents two novel questions. The first is whether we should adopt § 316 of the Restatement (Second) of Torts, which makes parents liable for negligently failing to prevent their children from intentionally harming others. The second concerns the plaintiff's burden under § 316 of showing that a parent unreasonably failed to recognize a need to control his or her child, or did recognize such a need, but failed to make a reasonable attempt to meet it. The question is how specific and immediate the need to control the child must be to support liability.

The mother, sister, child, and estate of Mickey Robert Dinsmore II (collectively, Dinsmore ¹) sued various people to redress Dinsmore's murder by seventeen-year-old Brian Hall. These included Hall's mother and stepfather, Tina and Louis Alvord, on a theory of negligent supervision. The Alvords were well aware of Hall's long history of emotional disturbance and violence, and of his arrest twenty-one months earlier for shooting a boy. Nonetheless, they did not enforce a curfew or regularly search his personal effects. Dinsmore, on the other hand, presented no evidence that, at the time of the murder, the Alvords knew that Hall had a gun or had done anything violent in the past twenty-one months, or that they should have known that any specific recent event or plan of Hall's required them to intervene to prevent likely harm. We conclude that the superior court correctly applied § 316 to these facts in granting the Alvords summary judgment, and affirm.

II. FACTS AND PROCEEDINGS

Brian Hall was born in 1975. The parties do not dispute that, from early childhood, he was emotionally disturbed and prone to uncontrollable anger and violence. From age three onward his parents--and sometimes the State, with their consent--put him in numerous psychiatric treatment facilities and alternative school programs for emotionally disturbed children, in and out of Alaska. He attended the Whaley Center, Anchorage's most restrictive school program, which is equipped with padded cells to hold uncontrollable students. He was hospitalized four times at the Alaska Psychiatric Institute (API) between the ages of eleven and twelve because of fighting and, once, threatening or assaulting his mother with scissors. API personnel put him in four-point restraints at least once. During the 1990-91 school year, both West High School and a vocational high school expelled him for fighting.

In July 1991, at age fifteen, Hall was adjudicated a delinquent on a charge of misconduct involving a weapon. He had shot a boy in the hand with a stolen pistol. Hall and a friend had approached and talked to two girls sitting in a car at an intersection at night; a large group of boys who knew the girls, and some of whom had bats, accosted and threatened Hall and his friend. Hall shot one. As reported by the police and by Hall's juvenile probation officer, Paul Kelson, the shooting involved a notable element of self-defense.

Hall was put on probation and, after about a month in a shelter, returned to live with the Alvords in October 1991. Everyone felt that he did well on probation: He was a model resident at the shelter and, once at home, kept his appointments with Kelson, did well at a computer-assisted alternative classroom program and a drug education and awareness program, paid his restitution, and became a trusted employee at a janitorial firm. He had conflicts with his parents about piercing his nose, drinking alcohol, possibly using marijuana, and having a girl in the house, but he, they, and Kelson resolved the conflicts. There were no reports of violence. During Hall's probation, the Alvords fully cooperated with Kelson, who found them caring and supportive. Kelson moved to end the probation ten months early, in October 1992. Lou Alvord expressed concern about how Hall would act after his probation ended, but he and Tina supported Hall's release from probation.

Neither Kelson nor the Alvords then knew that on Halloween--while the court was processing Hall's release from probation--he and one or more of his friends had used a cane and a bat to beat another boy at a party. Hall's parents only learned of the assault after his arrest for murder.

Brian Hall murdered Mickey Dinsmore and Stanley Honeycutt with a stolen gun in the early-morning hours on April 16, 1993. Dinsmore and Honeycutt were riding in a car in Anchorage's Far North Bicentennial Park. They had a verbal altercation with Hall and his companions, who were in a car driven by a friend of Hall's. Dinsmore and Honeycutt were unarmed. Hall was seventeen and a half. After an extensive juvenile waiver hearing, Hall was tried as an adult and convicted of first-degree murder for shooting Dinsmore.

Dinsmore's relatives and estate filed a wrongful-death suit against Hall; his companions; the parents who owned the car they were in; the Municipality of Anchorage and its Police Department; Paul Kelson; the State Division of Youth Corrections; and the Alvords. After the court dismissed a "vicarious liability" claim against the Alvords, Dinsmore amended the complaint to allege negligent supervision.

The Alvords submitted much of the juvenile-waiver-hearing transcript as evidence; Dinsmore submitted only some material whose inadmissibility we note in the margin, ² and Kelson's testimony about the Halloween battery. Applying section 316 of the Restatement (Second) of Torts (§ 316), the court granted the Alvords summary judgment. Dinsmore unsuccessfully moved for reconsideration, attaching evidence that, as we note in the margin, is irrelevant to this appeal. ³ The Alvords successfully moved the court under Alaska Civil Rule 54(b) to make the summary judgment final, though other defendants remained in the case. Dinsmore appeals the summary judgment and the entry of final judgment.

III. DISCUSSION

A. Standard of Review

We review summary judgments de novo, drawing all reasonable inferences in the nonmovant's favor. ⁴ If there are no genuine factual disputes--and Dinsmore does not claim that there are--we must decide whether the undisputed facts entitle the movant to judgment as a matter of law. ⁵ We also decide questions of law--such as whether to adopt § 316--de novo, choosing the rule that best reflects reason, policy, and precedent. ⁶ We review a grant of final judgment under Rule 54(b) for abuse of discretion. ⁷

B. We Decline to Address Adoption of § 316 as Alaska Law.

Both parties recommend that we adopt § 316, and the superior court predicted that we would. Section 316 requires parents who know of their children's violent propensities to keep them from harming others, by imposing

a duty to exercise reasonable care so to control [one's] minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that [the parent] has the ability to control [the] child, and

(b) knows or should know of the necessity and opportunity for exercising such control.[ ⁸]

This rule encodes a principle that courts in numerous states have applied in many cases since at least the early twentieth century. ⁹

Not all courts embrace § 316. Three state supreme courts in the last two decades have squarely declined to adopt § 316, and an intermediate appellate court in a fourth state partly did so. ¹⁰ Interestingly, the cases in which courts have declined to adopt § 316 have involved teenaged children and serious crimes like rape or murder. ¹¹ As our discussion in Part III.C.1 shows, many § 316 cases--though by no means all--have involved young children and less serious assaults. The opinions rejecting § 316 may thus reflect at least in part a judicial disinclination to hold parents liable for being unable to stop serious delinquency in older children. One court asked rhetorically whether § 316 should "apply to all minor children regardless of age, even though parental control diminishes as the child matures?" ¹²

We appreciate the concerns expressed both by those courts which have adopted and by those which have rejected § 316. The parties have agreed that § 316 is the law of the case; thus they have made the determination that § 316 should apply to the dispute between them. In view of their agreement, we see no need either to adopt or reject § 316. The issue must slumber until awakened by parties who present us with adversarial expressions of "reason, policy, and precedent" for or against adoption of § 316.

C. Dinsmore Failed to Rebut the Alvords' Showing that They Were Entitled to Judgment under § 316 as a Matter of Law.

We consider the Alvords' entitlement to judgment as a matter of law first in light of out-of-state § 316 precedents and, ultimately, by analyzing independently how best to apply its rule.

1. Case law from other states offers no support for finding parents liable on the facts of this case.

The text of § 316 suggests a three-part test: i.e., whether parents knew or should have known of the (1) need, (2) ability, and (3) opportunity to control their child. Case law from other states, however, does not bear this out. Instead, courts first ask if parents knew of past conduct enough like that at issue to put them on notice of the need to correct their child's dangerous propensity. Courts resolve most cases in the parents' favor upon finding no such past misconduct or, at least, no parental knowledge thereof. ¹³ But the Alvords cannot dispute that the...