d.s.w factors in Alaska

2026Because we agree with UAF that this case is controlled by our precedent in Schumacher, we need not conduct a D.S.W. analysis. 30 In Schumacher, a twelve-year-old was seriously injured when he sledded down a city-owned road and was struck by a car. 31 The city was aware that children of . . . physical or mental disability” and to “encourage and enable physically and mentally disabled persons to participate fully in the social and economic life of the state and to engage in remunerative employment”); see also Hunter on behalf of A.H. v. Dist. of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014) (“

1998We first consider whether to recognize a cause of action for negligent failure to diagnose a pregnancy. 2 The United States, arguing that the issue is one of public policy, undertakes an analysis under D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), where we adopted a multifactored test for deciding whether a legal duty , should be deemed to arise in novel situations. 3 The result of the D.S.W. analysis, in the United States’ view, is that no duty should be imposed here.

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2020But we have found “no need to rely on the D.S.W. factors in deciding whether an actionable duty exists if the duty issue is governed by recognized principles of tort law.” State v. Sandsness, 72 P.3d 299, 305 (Alaska 2003); see also Kallstrom v. United States, 43 P.3d 162, 167 (Alaska 2002) (“We apply the [D.S.W.] factors . . . when the facts under consideration are not covered by statute, regulation, contract, or case law.”).

2006We did apply the D.S.W. factors in Sandsness. 72 P.3d at 305 .

2026Mickelsen v. North-Wend Foods, Inc., 274 P.3d 1193, 1199 (Alaska 2012) (“If no closely related case law exists, we weigh the public policy considerations enumerated in D.S.W. . . . .”). 31 Schumacher, 946 P.2d at 1256 . -9- 7809 frequently sledded on the road but took no steps to reduce the danger. 32 We held that the city had no duty to protect the child “from obvious risks created by his own conduct.”33 This case is squarely controlled by our holding in Schumacher.

2025Mickelsen v. N-Wend Foods, Inc., 274 P.3d 1193, 1199 (Alaska 2012). 54 628 P.2d 554, 555 (Alaska 1981) (quoting Peter W. v. S.F.

2023Cal. Oct. 16, 2014). 69 Kallstrom v. United States, 43 P.3d 162, 167 (Alaska 2002); Schack v. Schack, 414 P.3d 639, 644 (Alaska 2018). -27- 7677 a duty to exercise care.”70 Here, the superior court found that the D.S.W. factors generally weighed against finding an exceptional duty in this situation, with only one factor, the foreseeability of harm to inmates, weighing in favor of finding such a duty.

2020But we have found “no need to rely on the D.S.W. factors in deciding whether an actionable duty exists if the duty issue is governed by recognized principles of tort law.” State v. Sandsness, 72 P.3d 299, 305 (Alaska 2003); see also Kallstrom v. United States, 43 P.3d 162, 167 (Alaska 2002) (“We apply the [D.S.W.] factors . . . when the facts under consideration are not covered by statute, regulation, contract, or case law.”).

1998Safety, 908 P.2d 1013, 1016 (Alaska 1995); Stephens v. State, Dep’t of Revenue, 746 P.2d 908, 910 (Alaska 1987); see also Chizmar v. Mackie, 896 P.2d 196, 203 (Alaska 1995) (stating that “a plaintiff’s right to recover emotional damages caused by mere negligence should be limited to those cases where the defendant owes the plaintiff a preexisting duty”). *875 Because common law is the only potential source of any actionable duty owed by the social worker defendants to Karen, 9 we look to the D.S.W. factors to resolve the duty issue.

1997Safety, 908 P.2d 1013, 1016 (Alaska 1995); Estate of Day v. Willis, 897 P.2d 78, 81 (Alaska 1995). 7 The circumstances of this case are lacking with respect to each of the D.S.W. factors.

1998See Estate of Day v. Willis, 897 P.2d 78, 81-82 (Alaska 1995) (after balancing the D.S.W. factors, holding officers owed no duty to protect fleeing offenders from their own actions).

1998See Estate of Day v. Willis, 897 P.2d 78, 81-82 (Alaska 1995) (after balancing the D.S.W. factors, holding officers owed no duty to protect fleeing offenders from their own actions).

2026Because we agree with UAF that this case is controlled by our precedent in Schumacher, we need not conduct a D.S.W. analysis. 30 In Schumacher, a twelve-year-old was seriously injured when he sledded down a city-owned road and was struck by a car. 31 The city was aware that children of . . . physical or mental disability” and to “encourage and enable physically and mentally disabled persons to participate fully in the social and economic life of the state and to engage in remunerative employment”); see also Hunter on behalf of A.H. v. Dist. of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014) (“

1998In Schumacher v. Yakutat, 946 P.2d 1255 (Alaska 1997), for example, we recently found that three of the D.S.W. factors, including foreseeability, militated in favor of imposing a duty.

2026Because we agree with UAF that this case is controlled by our precedent in Schumacher, we need not conduct a D.S.W. analysis. 30 In Schumacher, a twelve-year-old was seriously injured when he sledded down a city-owned road and was struck by a car. 31 The city was aware that children of . . . physical or mental disability” and to “encourage and enable physically and mentally disabled persons to participate fully in the social and economic life of the state and to engage in remunerative employment”); see also Hunter on behalf of A.H. v. Dist. of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014) (“

2026Because we agree with UAF that this case is controlled by our precedent in Schumacher, we need not conduct a D.S.W. analysis. 30 In Schumacher, a twelve-year-old was seriously injured when he sledded down a city-owned road and was struck by a car. 31 The city was aware that children of . . . physical or mental disability” and to “encourage and enable physically and mentally disabled persons to participate fully in the social and economic life of the state and to engage in remunerative employment”); see also Hunter on behalf of A.H. v. Dist. of Columbia, 64 F. Supp. 3d 158, 189 (D.D.C. 2014) (“

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2025Under the “closeness of connection” factor we consider whether the allegedly tortious conduct at issue is sufficiently related to the injury alleged to support imposing a duty on the defendant. 66 In Hawks v. State, Department of Public Safety, 65 Id. at 861. 66 See, e.g., Bolieu v. Sisters of Providence in Wash., 953 P.2d 1233, 1233, 1237 (Alaska 1998) (examining whether manner in which plaintiffs — who were spouses of nursing assistants at defendant health care facility — became infected with - 23 - 7739 we weighed the D.S.W. factors to determine whether the State owed the mother of a murder

2025Under the “closeness of connection” factor we consider whether the allegedly tortious conduct at issue is sufficiently related to the injury alleged to support imposing a duty on the defendant. 66 In Hawks v. State, Department of Public Safety, 65 Id. at 861. 66 See, e.g., Bolieu v. Sisters of Providence in Wash., 953 P.2d 1233, 1233, 1237 (Alaska 1998) (examining whether manner in which plaintiffs — who were spouses of nursing assistants at defendant health care facility — became infected with - 23 - 7739 we weighed the D.S.W. factors to determine whether the State owed the mother of a murder

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2025Servs. v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986), overruled on other grounds by State, Dep’t of Corr. v. Cowles, 151 P.3d 353 (Alaska 2006). 57 Id. at 1125-26 (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d 669, 680 (Cal. 1974)). 58 Hurn v. Greenway, 293 P.3d 480, 487 (Alaska 2013) (citing P.G. v. State, Dep’t of Health & Hum.

2023We reject this argument because it misunderstands the way the D.S.W. factors are applied. 45 Id. at 246, 254 . 46 Id. at 249 (holding that Act permits only tort actions when injured employee opts to pursue superior court action against uninsured employer). 47 Id. at 247 (holding that whether someone is an “employee” under Act “is a mixed question of law and fact”). 48 359 U.S. 500 (1959). 49 Benson v. City of Nenana, 725 P.2d 490, 491 (Alaska 1986). 50 628 P.2d 554 , 555 (Alaska 1981) (quoting Peter W. v. S.F.

2023Cal. Oct. 16, 2014). 69 Kallstrom v. United States, 43 P.3d 162, 167 (Alaska 2002); Schack v. Schack, 414 P.3d 639, 644 (Alaska 2018). -27- 7677 a duty to exercise care.”70 Here, the superior court found that the D.S.W. factors generally weighed against finding an exceptional duty in this situation, with only one factor, the foreseeability of harm to inmates, weighing in favor of finding such a duty.

2023Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)). -13- 7649 The D.S.W. factors are “seven public policy considerations we use to determine whether we should recognize a negligence duty not otherwise defined by law.”51 The D.S.W. factors come into play after we first consider “whether a duty is imposed by statute, regulation, contract, undertaking, the parties’ preexisting relationship, or existing case law”; if no duty is imposed under those authorities, we apply the D.S.W. factors to determine whether we should recognize a negligence duty.52 Juries do not determine the existence of the D.S

2023We reject this argument because it misunderstands the way the D.S.W. factors are applied. 45 Id. at 246, 254 . 46 Id. at 249 (holding that Act permits only tort actions when injured employee opts to pursue superior court action against uninsured employer). 47 Id. at 247 (holding that whether someone is an “employee” under Act “is a mixed question of law and fact”). 48 359 U.S. 500 (1959). 49 Benson v. City of Nenana, 725 P.2d 490, 491 (Alaska 1986). 50 628 P.2d 554 , 555 (Alaska 1981) (quoting Peter W. v. S.F.

2023We reject this argument because it misunderstands the way the D.S.W. factors are applied. 45 Id. at 246, 254 . 46 Id. at 249 (holding that Act permits only tort actions when injured employee opts to pursue superior court action against uninsured employer). 47 Id. at 247 (holding that whether someone is an “employee” under Act “is a mixed question of law and fact”). 48 359 U.S. 500 (1959). 49 Benson v. City of Nenana, 725 P.2d 490, 491 (Alaska 1986). 50 628 P.2d 554 , 555 (Alaska 1981) (quoting Peter W. v. S.F.

2022Reviewing the other D.S.W. factors, we concluded that they failed to support the sub-subcontractor’s claim, including the fact that, “as contrasted to negligence creating a risk of death or physical injury, ‘we have ascribed little blameworthiness to ordinary negligence that merely causes economic . . . harm.’ ” Id. at 379 (alteration in original) (quoting Mesiar v. Heckman, 964 P.2d 445, 451 (Alaska 1998)).

2020See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) (holding that “[i]ssues not properly raised or briefed at trial are not properly before this court on appeal” (alteration in original) (quoting Burts v. Burts, 266 P.3d 337, 344 (Alaska 2011))). -11- 7479 1.

2020See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016) (holding that “[i]ssues not properly raised or briefed at trial are not properly before this court on appeal” (alteration in original) (quoting Burts v. Burts, 266 P.3d 337, 344 (Alaska 2011))). -11- 7479 1.

2013Advocacy, 112 P.3d 668, 675 (Alaska 2005) (ceasing examination of the D.S.W. factors and declining to impose a duty after determining that "there would be a significant 'burden to the defendant and consequences to the community' if we imposed an extra-statutory duty of care"). 32 .

2006Id. [73] Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181 (Alaska 1977) (internal quotations omitted). [74] Id. (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). [1] State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986). [2] Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)). [3] In his dissenting opinion, Justice Matthews cites parole statistics from a recent multi-state study by the Urban Institute—Amy Solomon, Vera Kachnowski

2006Id. [73] Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181 (Alaska 1977) (internal quotations omitted). [74] Id. (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). [1] State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986). [2] Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)). [3] In his dissenting opinion, Justice Matthews cites parole statistics from a recent multi-state study by the Urban Institute—Amy Solomon, Vera Kachnowski

2006Id. [73] Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181 (Alaska 1977) (internal quotations omitted). [74] Id. (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). [1] State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986). [2] Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)). [3] In his dissenting opinion, Justice Matthews cites parole statistics from a recent multi-state study by the Urban Institute—Amy Solomon, Vera Kachnowski

2006Id. [73] Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181 (Alaska 1977) (internal quotations omitted). [74] Id. (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). [1] State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986). [2] Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)). [3] In his dissenting opinion, Justice Matthews cites parole statistics from a recent multi-state study by the Urban Institute—Amy Solomon, Vera Kachnowski

2006Id. [73] Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 181 (Alaska 1977) (internal quotations omitted). [74] Id. (quoting State v. Abbott, 498 P.2d 712, 727 (Alaska 1972)). [1] State, Div. of Corr. v. Neakok, 721 P.2d 1121 (Alaska 1986). [2] Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003) (internal quotations omitted)). [3] In his dissenting opinion, Justice Matthews cites parole statistics from a recent multi-state study by the Urban Institute—Amy Solomon, Vera Kachnowski