Expansion of the Limits of the Statute of Repose

Raymond Dapo v. State of Alaska, Office of Children’s Services, and Taun Lucas (Supreme Court of Alaska, 2019)

The Alaska Supreme Court recently expanded the limits under which parties can bring claims that might have otherwise been time-barred by the statute of repose. The statute of repose acts to completely extinguish a defendant’s liability upon the expiration of a set period of time and is designed to act as “an absolute bar” to liability. The statute of repose, AS 09.10.055, bars “an action for personal injury, death, or property damage unless commenced within ten years of . . . the last act alleged to have caused the personal injury, death, or property damage,” unless the action falls within one of the statute’s exceptions. Exceptions to this ten-year bar include “an intentional act or gross negligence,” AS 09.10.055(b)(1)(B), or a “breach of trust or fiduciary duty,” AS 09.10.055(b)(1)(F), which are relevant in this case.

In this case, Raymond Dapo (appellant) was taken into the custody of the Offices of Children’s Services (OCS) in April of 2000, at the age of ten. Dapo reached the age of majority in 2008 and filed suit in 2015 against his adoptive mother, Tuan Lucas (appellee), for sexual abuse that allegedly occurred in 2002, right after his adoption. In response, Lucas filed a third-party claim against OCS for apportionment of fault, contending that OCS had negligently failed to fulfill its duty to protect Dapo and assigned the claim to Dapo in exchange for Dapo’s agreement to release Lucas from liability. OCS filed a motion to dismiss the apportionment claim with the Superior Court, claiming that it was barred by the ten-year statute of repose. The Superior Court granted the motion, which Dapo appealed to the Supreme Court.

Dapo’s underlying claim against Lucas for felony sexual abuse of a minor, his personal injury, fell within the scope of AS 09.10.065(a), which allows a person to bring an action at any time for such conduct. However, because Lucas apportioned the fault to OCS, the Superior Court analyzed AS 09.10.055 to determine if the apportionment was subject to the statute of repose. That Court held that the statute of repose barred Dapo’s third-party claim against OCS, because apportionment claims based on “personal injury, death, or property damages” are subject to the statute of repose. The last act alleged to have caused Dapo’s personal injury occurred before the police took him back into custody in 2002, which began the running of the statute of repose, meaning his claim was barred by the statute in 2012, four years after he had reached the age of majority. By the time Dapo filed suit in 2015, OCS was considered to be protected from a civil action under the statute of repose, unless one of the exceptions could be applied.

The primary issue here is whether Dapo’s third-party claim for apportionment of fault against OCS falls within one or more of the exceptions to the time bar set by the statute of repose. To answer this question, the Alaska Supreme Court directed the Superior Court to determine if OCS was grossly negligent in placing Dapo in Lucas’ home, and if OCS breached its fiduciary duty to Dapo, thus allowing Dapo’s claim against OCS to proceed under the exceptions to the statute of repose.

The Supreme Court held that the apportionment of fault claim may fall within one or both of these exceptions to the statute of repose, and thus reversed the Superior Court’s order to dismiss the third-party apportionment claim against OCS. The Supreme Court further remanded the case to the Superior Court for proceedings consistent with their findings: to determine if OCS breached their duty of care (to establish a gross negligence claim) and if they breached their fiduciary duty to Dapo. Before this case, the Supreme Court of the State of Alaska had not ruled on a case with facts similar to these. This ruling is important as it pertains to the statute of repose because it broadens the scope under which parties can bring claims that might have otherwise been time-barred by the statute of repose. Specifically, even claims of apportioned fault may not be time barred by the statute if the third party’s actions fall under one of the exceptions to the time limit.

By Jenna Sutton