NO. 93-204
IN THE SUPREm COURT OF THE STATE OF MONTANA
1993
S.M., J.A.M., M.M., J.K.M., and
J.N.M., all individuals,
Plaintiffs and Appellants,
R-B., an individual, and MISSOULA,
SCHOOL DISTRICT NO. 1, a political
subdivision of the State of Montana,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James P. O'Brien and Randolph J. Stevens, O'Brien
Law Office, Missoula, Montana
For Respondent:
John 0. Mudd, Garlington, Lohn & Robinson, Missoula,
Montana
Submitted on Briefs: August 19, 1993
Decided: November 16, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs appeal the order of the District Court of the
Fourth Judicial District, Missoula County, which granted summary
judgment to Missoula School District No. 1 (School District) in an
action which alleged that a four-year old plaintiff had been
sexually assaulted by a teacher's aide.
Defendant R.B. did not appear and defend in this action.
R.B.'s default was entered by the clerk of court. The School
District initially asserted that the claims against it were barred
by the defense of immunity. In the prior appeal of this cause,
this Court held that the School District waived immunity to the
extent of any liability insurance it had purchased. See S.M. v.
R.B. (1991), 248 Mont. 322, 811 P.2d 1295.
We reverse in part and affirm the summary judgment in favor of
Missoula School District No. 1.
The plaintiffs present the following issues for review:
1. Did the District Court err when it granted defendant
School District's motion for summary judgment?
2. Where default was entered by the clerk of court against
defendant R.B. for failure to appear, does the subsequent entry of
summary judgment in favor of the School District require the
inclusion of R.B. in the judgment of dismissal?
3. Did the District Court abuse its discretion by not holding
a separate evidentiary hearing on the admissability of certain
hearsay evidence?
Plaintiffs alleged in their complaint that on or about April
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16, 1987, defendant R.B. sexually assaulted plaintiff S.M.,
committing sodomy and attempted rape. R.B. was employed by
defendant School District as a teacher's aide at Hawthorne School
in Missoula, Montana. Plaintiff S.M. was four years old at the
time and was enrolled in the School District's special education
pre-school program for children with developmental disabilities.
The remaining plaintiffs are S.M. 's parents and siblings.
Plaintiffs claim that S.M. was sexually assaulted while R.B.
was under the supervision of the School District. Prior to the
filing of this action, the Missoula County Sheriff's Department
conducted a criminal investigation of allegations that R.B. had
sexually assaulted S.M.; the Sheriff's Department did not charge
R.B. with any crime as a result of its investigation.
The allegations against R.B. arose from an injury sustained by
S.M. in April 1987. S.M.'s parents became concerned that she had
been sexually assaulted when S.M. 's mother noticed a small cut in
S.M.'s genital area while bathing her. Two weeks later, again
while bathing, S.M.'s mother became alarmed when she noticed that
the cut had reopened and also that there was what she termed a
"blood blister" near S.M.'s vagina. S.M. suffers from Down's
Syndrome and cou:ld not effectively communicate the cause of her
injury to her parents or others.
S.M.'s mother took S.M. to a physician the following morning.
The record submitted to this Court contains portions of deposition
testimony from Dr. Kathleen Rogers, the pediatrician who examined
S.M. Dr. Rogers concluded from the history given by S.M.'s mother
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and her examination of S.M. that it was likely that S.M. had been
sexually assaulted, although a sexual assault was not conclusively
established. Dr. Rogers testified that injuries of the type that
S.M. had suffered could result from a number of other factors not
related to sexual abuse, including playing with straddle-type toys.
S.M.'s mother told Dr. Rogers that S.M. did not play with straddle-
type toys. S.M.'s mother also indicated that S.M. had exhibited
fears relating to getting on the school bus after the injury as
well as other changes in behavior around that time. She also
testified to environmental changes in the home, such as S.M.'s
refusal to have any adult present with her in the bathroom,
including her parents, and the fact that S.M. had been
"transitioned" from her crib to a single bed at about that time.
Hawthorne School, where S.M. attended school in the mornings,
conducted two pre-school special education classes, one which S.M.
attended. Each class had a teacher and at least two aides for six
developmentally disabled children. At the time of the injury, R.B.
was a teacher's aide in one of these classrooms; however, he was
never an aide in S.M.'s classroom.
The special education program provided structured, segmented
learning periods for the children, including "gym classes."
Plaintiffs contend that R.B. sexually assaulted S.M. during one of
the twenty-minute gym classes when he took her to the bathroom
adjacent to the gym. Other testimony indicated that, because of
their special needs, the children were never taken to rest rooms
other than those provided in their own classrooms. Testimony was
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also presented to demonstrate that R.B. would not have had anything
to do with S.M. or any other child who was not a student in the
classroom to which he was assigned.
The District Court granted summary judgment to the School
District, stating that, although the evidence conflicted, it
appeared more likely than not that S.M. was sexually assaulted.
However, the court found no material evidence to indicate R.B. was
the perpetrator of the assault. The court's judgment provides:
Ordered! adjudged and decreed that the District
shall have Judgment against the Plaintiffs, that the
Plaintiffs shall . . . take nothing from their complaint
and that complaint be dismissed, and that the District
shall recover its costs of suit as provided by law.
Additional facts will be provided as necessary throughout this
opinion.
I.
Did the District Court err when it granted defendant School
District's motion for summary judgment?
In reviewing a district court's grant or denial of summary
judgment, this Court applies the same standard as the district
court. Krebs v. Ryan Oldsmobile (1992), 255 Mont. 291, 295, 843
P.2d 312, 314-15. Summary judgment is appropriate only when there
are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.
The burden is on the movant to show a complete absence of any
genuine issues of fact "deemed material in light of the substantive
principles that entitle that party to a judgment as a matter of
law." Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 411, 637
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P.2d 509, 511. 'When the movant has met the initial burden, the
burden shifts to the party opposing summary judgment to demonstrate
a genuine issue of material fact. Frigon v. Morrison-Maierle, Inc.
(1988) r 233 Mont. 113, 117, 760 P.2d 57, 60.
"On a motion for summary judgment the issues presented by the
pleadings are not controlling." Brown v. Thornton (1967), 150
Mont. 150, 155, 432 P.2d 386, 389. Because issues of negligence
involve questions of duty, breach of duty and proximate cause of
injury, they are not ordinarily susceptible to summary judgment and
are usually better resolved at trial. Hendrickson v. Pocha (1990),
245 Mont. 217, 219, 799 P.2d 1095, 1097. On the other hand, if the
plaintiff has failed to establish evidence of a genuine issue of
material fact remaining to be tried in a negligence action, summary
judgment is properly granted to the defendant. Thelan v. City of
Billings (1989), 238 Mont. 82, 86, 776 P.2d 520, 522. Unsupported
speculative and conclusory statements on the part of the plaintiff
as to what might have happened do not constitute issues of material
fact. Nelson v. Montana Power Co. (1992), 256 Mont. 409, 412, 847
P.2d 284, 286. As our discussion below explains, our independent
review of the record has not produced evidence of issues of
material fact.
Initially, we note that there is no clear evidence to support
the claim that S-M. was sexually assaulted. S.M. was injured in
her genital area, but testimony from the pediatrician who examined
her indicates that S.M. could have been injured by other means,
both innocent and accidental. In reaching her conclusion that S.M.
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“as sexually abused, Dr. Rogers relied not only on physical
manifestations of the injury, but also on the information given her
by S.M.'s mother, ,who provided information about S.M.'s activities.
There has been exhaustive discovery in this action, including
depositions of teachers, teacher's aides, School District
administrative employees, and doctors. It is primarily the
testimony of a cli.nical psychologist who evaluated and treated S.M
that tips the scale toward the District Court's finding that more
likely than not S.M. had sustained sexual abuse. The psychologist,
Jacelyn Wedell-Monnig, wrote that *V[S.M.'s] reported behaviors and
statements to me leave no doubt in my mind that the events took
place at Hawthorne."
S.M. attended the School District's pre-school program at
Hawthorne School from 9:00 a.m. to 11:45 a.m. each weekday. S.M.
and five other students were taught in a classroom headed by a
supervising teacher and assisted by at least two classroom aides.
R.B. worked in another classroom with six other students. Except
for a twenty-minute period for gym class once per week, the aides
had no access to students from the other classroom. The other
classroom aides and teachers were present during the gym class as
well. Testimony was presented which indicated that the children
were Voileted" only by the aides assisting in their own classroom
and that the special needs children in these two classrooms were
always taken to the rest room adjacent to their own classroom for
such purposes and not to the rest room at one end of the gym. The
individual programs of the pre-school children at Hawthorne School
required that specific classroom aides attend to their needs.
S.M.'s mother testified that S.M.'s particular behavior
indicated the abuse happened at Hawthorne School. For example,
S.M. exhibited an aversion to getting on the bus which took her to
Hawthorne School. Her mother further testified that S.M. wanted to
avoid the bus and Hawthorne School and that she was afraid of
things that reminded her of the school, such as red brick-walled
places, "large gymnasium-type open places which reminded her of
disinfectant odors or musty, earthy odors" and hallways with red or
rust-colored lockers. S.M.'s mother testified that she also had
nightmares and tried to act out what had happened to her by
stuffing Kleenex, washrags and other things used as phallic symbols
in her mouth.
Although S.M. demonstrated an aversion to her school and
exhibited other behavioral changes, there is no evidence in the
record that S.M. made any sort of identification of her abuser.
The District Court viewed a video tape of S.M. being interviewed by
her treating psychologist and stated:
[T]he Court, after viewing the video tape of the child
finds that the child was not competent to pinpoint her
assailant or comprehend what was being asked of her. The
child's verbal and cognitive skills do not appear on the
video tape as well enough developed to persuade the Court
that a knowing and conscious decision was made by the
child identifying R.B. as the individual who hurt her.
Throughout the video, the child is prompted to identify
her alleged assailant, and the child is either
nonresponsive or makes multiple "identifications."
We have viewed the video tape in the course of our review and
affirm the District Court's finding that the video tape does not
substantiate plaintiffs' assertion that S.M. identified R.B. as the
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perpetrator of any sexual assault she may have experienced.
Although we have set forth the facts concerning the alleged sexual
assault and affirmed the court's finding that sexual abuse
occurred, this is not a critical fact for purposes of our review.
Plaintiffs claim that they had identified five locations where
the abuse could have occurred; these five places were their home,
Hawthorne School,, the bus which took S.M. to school, the
babysitter's home and the Co-Teach program at the University of
Montana where S.M. spent her afternoons. S.M.'s mother and her
psychologist eliminated all but Hawthorne School and then
determined the abuse could have been committed only by R.B. in the
gym.
There was no evidence presented that R.B. ever had any contact
with S.M. However, there is evidence in the record to indicate
that S.M.'s parents identified R.B. as a likely perpetrator of
abuse because they had heard about an accusation of abuse made by
a parent in the other pre-school classroom. We conclude that the
evidence presented does not support plaintiffs' conclusions. The
uncontradicted facts support the following argument of the School
District:
In response to the undisputed testimony that R.B.
was never with S.M. even for a minute, much less long
enough to assault her seriously, the Plaintiffs offer
only their suspicions. . . . They do not explain why
other locations . . . were eliminated . . . .
Carrying this theory to the next stage, the
Plaintiffs claim S.H. was assaulted by R.B. in the school
during a gym class. . . . The only time S.M. and R.B.
were even in the same room was for a . . . gym period,
and the only gym class held within the time established
by Dr. Rogers for S.M. 's injury occurred on Monday, April
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27, 1987. . . .The only evidence offered by the
Plaintiffs to support this theory is a statement by
S.M.'s gym teacher.
. . .
The gym teacher had only a vague recollection of one
of his 700 students going to the bathroom and stumbling
in front of him, but even that child showed no sign of
being in any distress. On the other hand, S.M.'s teacher
testified specifically she was in that gym class
supervising S.M. on April 27, 1987; nothing unusual
happened that day: and R.B. had no contact whatsoever
with S.M. . . . This direct testimony of S.M.'s classroom
teacher is uncontradicted.
The record supports the contentions of the School District.
S.M.'s teacher did specifically testify that R.B. had no contact
whatsoever with S.M. and this direct testimony on the part of
S.M.'s teacher is uncontradicted. In addition, we point out that
there is no testimony from any of the adults in the gym class that
S.M. showed any outward signs of injury, pain or trauma.
The School District contends that there is not a shred of
evidence to support plaintiffs ' theory of what occurred. We agree.
We conclude that such conclusory and speculative statements as
those presented by the plaintiffs in this case are not sufficient
to satisfy their burden of demonstrating a genuine issue of
material fact. Secause we have concluded there is a complete
absence of any evidence that R.B. assaulted S-M., it is unnecessary
to address the issue of the School District's negligence in hiring
or in supervising R.B.
We hold the District Court correctly granted summary judgment
in favor of the School District.
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II.
Where default was entered by the clerk of court against
defendant R.B. for failure to appear, does the subsequent entry of
summary judgment in favor of the School District require the
inclusion of R.B. in the judgment of dismissal?
Plaintiffs contend that because R.B. failed to appear, he has
admitted the allegations of sexual assault. No issue as to R.B. is
properly before this Court. No default judgment was entered
against R.B. All that was done with respect to the default of R.B.
was the entry of default by the clerk of court at the plaintiffs'
request. We conclude there is no basis for our entry of a judgment
or order which directly affects R.B. Our modification of the
District Court's judgment reverses that judgment's effect as to
R.B. Proceedings are pending before the District Court regarding
R.B. and the clerk's entry of his default.
We conclude that it is not appropriate to include R.B. in the
judgment of dismissal entered by the District Court. We affirm the
judgment of the District Court as to defendant Missoula School
District No. 1 and modify that judgment to state as follows:
It is ordered, adjudged and decreed that the School
District is 'granted judgment against the plaintiffs, and
that the plaintiffs shall take nothing against the School
District as a result of this action, and that the
complaint of the plaintiffs shall be dismissed as to the
School District. The School District shall be entitled
to recover its costs of suit.
III.
Did the District Court abuse its discretion by not holding a
separate evidentiary hearing on the admissability of certain
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hearsay evidence?
Plaintiffs contend that they requested that the District Court
hold a hearing in accordance with Rule 804(b)(5), M.R.Evid., if it
were inclined to find all of the other evidence supplied by S.M.
insufficient to demonstrate a genuine issue of material fact. In
State v. J.C.E. (1988), 235 Mont. 264, 273, 767 P.2d 309, 315, this
Court ruled that when there is an issue concerning the
admissability of at child's hearsay statement of sexual abuse, such
a hearing is required. The plaintiffs contend that the court erred
when it made the determination that the video tape, as a matter of
law, demonstrated that S-M. was not competent to pinpoint her
assailant or comprehend what was being asked of her, despite the
specific request to hold the hearing.
We decline to rule on this issue as it is not properly before
this Court. The plaintiffs did not file the transcript to
demonstrate that they specifically asked the District Court for an
evidentiary hearing. Further, when the entire transcript is not
included in the record on appeal, Rule 9(b), M.R.App.P., requires
the appellant to notify the respondent of the issues the appellant
intends to raise on appeal so that the respondent can determine
whether a transcript of parts of the proceeding which are not
included in the record will be required. This was not done in this
case.
AFFIRMED in part, REVERSED in part and REMANDED with
instructions to enter judgment as modified herein.
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We Concur:
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