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Dore v. City of Fairbanks9/28/2001
r tort actions is two years from the date of accrual of the cause of action. When the cause of action accrues while a person is under the age of majority or incompetent by mental illness or disability, the statute of limitations is tolled. The person under disability must file his or her action within two years after the disability ceases or be barred by the statute of limitations.
The claims of both Jamie and Brandi Dore are barred by the statute of limitations, AS 09.10.140(a). The cause of action accrued, if at all, on April 29, 1986, the date of Carmen Dore's murder. At that time, Jamie Dore was fourteen years old, and Brandi Dore was eleven years old; both were minors under Alaska law. To avoid the statute of limitations, they had to file suit on or before their twentieth birthdays. Jamie Dore had to file suit on or before February 6, 1992, and Brandi Dore had to file suit on or before October 16, 1994. They filed suit in 1996. Thus, the statute of limitations bars Jamie's and Brandi's claims.
The Dore children contend that we should apply a modified relation back doctrine to save Jamie's and Brandi's claims. They assert that their claims are for wrongful death and, because Jason Dore's claim is not barred by the statute of limitations, their claims on the same "unitary cause of action" should also survive.
This proposed application of the relation back doctrine is mistaken. The Dore children correctly note that an efficient judicial system attempts to avoid a multiplicity of lawsuits, that the statute of limitations is generally disfavored, and that the relation back doctrine should be construed liberally. However, the relation back doctrine only applies when an amended pleading, filed after the statute of limitations has run, relates back to the original pleading that was filed before the statute of limitations expired. Federal Rule of Civil Procedure 15(c) is similar to Alaska Civil Rule 15(c). Professor Moore explains that " t is implicit in [Federal Civil Rule 15] that in order to amend, a party must have a pleading on file." Jamie and Brandi Dore are not filing an amendment to a timely original pleading; accordingly, the relation back doctrine does not apply.
The Dore children also assert, in one sentence only, that "because of mental instability Jason, Brandi, and Jamie Dore were under the subject of a Guardianship action . . . ." Incompetence due to mental illness or disability can toll the statute of limitations. However, appellants proffered no evidence of mental disability to support this claim. This bare assertion is insufficient to raise a genuine issue of material fact or toll the statute of limitations. Thus, Jamie's and Brandi's claims are barred by the statute of limitations. Because Jason's claim is not barred by the statute of limitations, we turn to the question of duty.
B. The City Had No Duty to Arrest a Suspect on an Outstanding Warrant or Otherwise Prevent Harm to a Possible Crime Victim.
"Determining whether a duty exists in the type of case presented is the first analytical step in deciding whether a negligence action can be maintained." In order to reach the questions of whether the city has statutory immunity or has breached its duty, we must first determine whether the city owes a duty in tort to the plaintiff.
Almost all jurisdictions hold that police negligent failure to arrest is not actionable. These courts employ a variety of reasons: lack of general tort duty, statutory immunity, lack of causation, lack of breach, and application of the public duty doctrine. The few cases that conclude that the police have an actionable duty to arrest rely on duty as defined by statute o
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