NO. 92-261
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
J.L.,
Plaintiff and Appellant,
JARET KIENENBERGER, a minor, and
RON and PATTI KIENENBERGER, his
parents, individually,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Seidlitz, Jr., Attorney at Law, Great Falls,
Montana
For Respondents: I
Joseph M. Sullivan; Emmons and Sullivan, Great
Falls, Montana
Patrick F. Flaherty, Attorney at Law, Great Falls,
Montana
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Submitted on Briefs: November 24, 1992
Decided: February 25, 1993
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from the District Court of the Eighth
Judicial District, County of Cascade, the Honorable John M.
McCawel presiding. Appellant J.L. appeals from an order granting
respondents Ron and Patti Kienenberger summary judgment and
dismissing with prejudice hex complaint against them. We affirm.
On January 19, 1991, Jaret Kienenberger, age 13, entered the
home of J.L., age 28, and raped her. At the time he was under the
influence of alcohol and marijuana. The incident took place at
11:50 p.m., while J.L. was sleeping on a couch in her living room.
5 . L. claimed damages for physical and psychological injuries
resulting from the assault.
In the ensuing criminal proceedings, Jaret pled guilty to
sexual intercourse without consent and was sent to the Yellowstone
Treatment Center. J.L then sued Jaretls parents on a theory of
.
negligent supervision, alleging that the Kienenbergers owed a duty
to her and to others to supervise their child appropriately, and
that they had breached that duty by supervising his upbringing so
negligently that "it was reasonably foreseeable that he would be a
danger to himself and to third parties.#!
At the time of the rape, Ron and Patti Kienenberger had been
separated for approximately two and one-half years. Jaret had been
living alternately with Ron at the family's original home in
Dodson, Montana, and with Patti at her home in Great Falls. He was
living with Patti during the 1990-91 school year. Ron and Patti
stated in their affidavits that before the fall of 1989 they had no
problem with Jaret, and Jaret had no problem in school or with law
enforcement. His school records support these statements.
Between October 1989 and October 1990, Jaret was involved in
three incidents of minor vandalism, all in Dodson. He and three
other youths negligently started a fire after breaking into a
storage building to smoke. Again with three other youths, he broke
windows in a building and a windshield in a pickup truck. In
October 1990, Jaret and three Dodson youths broke into a building
and damaged a high school float. Ron Kienenberger stated in his
affidavit that when law enforcement officials informed him of these
incidents, he punished Jaret.
Patti Kienenberger stated in her affidavit that she was aware
of two occasions during the fall of 1990 on which Jaret had been
drinking alcohol, and that she grounded him on both occasions. On
the night of Saturday, January 19, 1991, she gave Jaret permission
to go to a friend's house to watch television. Instead he went
elsewhere and drank alcohol and smoked marijuana. This was the
night that he raped J.L.
The primary issue on appeal is whether Ron and Patti
Kienenberger were entitled to summary judgment. J.L. presents six
issues, but only four are relevant to the primary question. We
restate them as follows:
1. Whether the District Court erred in determining that Ron
and Patti Kienenberger had no duty to J.L. to supervise their
minor child, Jaret, as a matter of law.
2. Whether the District Court erred in holding that even if
the Kienenbergers had a duty to J.L., the record does not
establish their negligence.
3. Whether the District Court abused its discretion in
denying J.L.Is request for an order to release Jaretrsyouth
court records.
4. Whether the ~istrict Court abused its discretion in
denying J.L.'s motion to continue the summary judgment
hearing, based on incomplete discovery.
Our standard of review for a grant of summary judgment is the
same as that initially applied by the trial court under Rule 56,
M.R.Civ.P. Graham v Montana State University (1988), 235 Mont.
.
284, 287, 767 P.2d 301, 303. Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Rule
56(c), M.R.Civ.P.
The party moving for summary judgment has the initial burden
of showing that there is no genuine issue as to any fact deemed
material in light of the substantive principles that entitle the
movant to judgment as a matter of law. Fleming v. Fleming Farms,
Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Whether
or not there is sufficient evidence to raise an issue of fact is a
question of law for the court, not a question of fact. Flansberg
v. Montana Power Co. (1969), 154 Mont. 53, 60, 460 P.2d 263, 267;
Federal Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 513,
808 P.2d 475, 478.
Ordinarily, issues of negligence are not susceptible to
summary judgment and are better determined at trial. Henderson v.
Pocha (1990), 245 Mont. 217, 219, 799 P.2d 1095, 1097. To sustain
a claim for relief based on negligence, however, a plaintiff must
prove both negligence and proximate cause. If there is no evidence
of any negligent act or omission by defendant, summary judgment is
properly granted. Scott v Robson (1979), 182 Mont. 528, 536, 597
.
P.2d 1150, 1155; United States Fidelity and Guaranty Co. v. Camp
(Mont. 1992), 831 P.2d 586, 589, 49 St.Rep. 372, 373-374.
I
To prevail in her negligence action, J.L. must prove the
following elements: a duty owing from the Kienenbergers to
herself; a breach of that duty; proximate causation; and damages.
Scott, 597 P.2d at 1154. The District Court concluded correctly
that J.L. failed to establish the first of these elements. As we
affirm the District Court on this issue, we do not address breach
of duty or the remaining elements of negligence.
J.L. argues that Montana law imposes a duty on parents to
provide proper supervision of their children. She argues that
5 27-1-701, MCA, makes a parent legally responsible for injuries to
others occasioned by want of ordinary care in supervising his minor
children. This statute, however, creates liability for "want of
ordinary care or skill in the management of his property or
person." We decline to extend this principle to the Nmanagement"
of children.
J.L. also cites 5 41-3-101, MCA, as evidence that parents have
a moral and legal duty to provide for their children's physical,
moral, and emotional well-being. As the Kienenbergers correctly
point out, however, this statute describes a duty parents owe to
their children, not to third parties.
The common-law rule, still followed in Montana, is that a
parent is not liable for a child's tort, except under the limited
circumstances provided in 1 27-1-718(2), MCA (parent or guardian of
a minor convicted of shoplifting is liable to the seller for the
greater of $100 or the retail value of the goods, not to exceed
$500), and 5 40-6-237, MCA (a city, county, school district or
state agency may recover up to $2,500 from the parent of a minor
who willfully or maliciously destroys its property). Neither of
these statutes applies here.
A parent also may be liable under the doctrine of respondeat
superior, if the child is the parent's agent or employee.
The basic principle of liability is agency, and the
father cannot be . . . held responsible for the
negligence of his minor son in the absence of proof of
the existence of agency at the time of the accident.
Clawson v. Schroeder (1922), 63 Mont. 488, 495, 208 P. 924, 926.
See also Castle v. Thisted (1961), 139 Mont. 328, 363 P.2d 724
(parent not liable for minor child's negligent driving because
driving the car did not make the child the parent's agent). Here,
no argument has been made that Jaret Kienenberger was in any sense
his parents1 agent or employee at the time of the assault.
J.L. urges this Court to adopt the doctrine of parental
neglect, set forth in 5 316 of the Restatement (Second) of Torts
(1965) as an exception to the common-law rule that parents are not
liable for their children's torts. We decline to do so.
Neither this Court nor the Montana legislature has found it
necessary in the past to expand these limited exceptions to the
common-law rule of nonliability, and we do not find it necessary
now. The District Court concluded correctly that Ron and Patti
Kienenberger owed no duty to J.L. and therefore are entitled to
judgment as a matter of law.
J.L. claims that she was unable to prepare adequately for
deposition of Ron and Patti Kienenberger because she had been
denied access to Jaret's youth court records. Therefore, she
argues, the record was not complete when the ~istrict
Court granted
the Kienenbergers' motion for summary judgment, and the court
should have continued the hearing on the motion.
J.L. 's motion to continue the hearing was based on Rule 56 (f),
M.R.Civ.P., which follows (emphasis added):
Should it appear from the affidavits of a party opposing
the motion [for summary judgment] that the party cannot
for reasons stated present by affidavit facts essential
to justify the party's opposition, the court mav refuse
the application for judgment or mav order a continuance
to permit affidavits to be obtained or depositions to be
taken or discovery to be had ....
In the affidavit accompanying J.L.'s motion, which was filed the
day before the hearing, her lawyer stated that he had deferred
deposing Ron and Patti Kienenberger until Jaret's youth court and
subsequent medical and psychological records were available. He
stated further that without this discovery, he could not prepare
adequately for the depositions or for the summary judgment hearing.
J.L. had asked for Jaret's youth court records in a request
for production on December 6, 1991. When the Kienenbergers
objected on the grounds that the records are privileged under the
Montana Youth Court Act, 5 41-5-101, MCA et seq., J.L. asked the
District Court for an order releasing the records pursuant to f, 41-
5-603(1)(c). The Kienenbergers then moved for a protective order,
pursuant to Rule 26(c), M.R.Civ.P., or in the alternative for iD
camera review by the court.
Judge McCarvel reviewed the youth court records camera. At
the summary judgment hearing on March 13, 1992, he granted the
Kienenbergers' motion for a protective order. As grounds for this
action, he stated that J.L. already knew, from the Kienenbergers'
affidavits, "all pertinent facts which could be gleaned from Jaret
Kienenberger s youth court file. Having served as youth court
judge in the criminal proceedings against Jaret, Judge McCarvel was
in an excellent position to assess the relevance of Jaret's youth
court file.
The District Court has inherent discretionary power to control
discovery, based on its authority to control trial administration.
State ex rel. Guarantee Insurance Co. v. District Court (1981), 194
Mont. 64, 67-68, 634 P.2d 648, 650. See also In re Marriage of
Jacobson (1987), 228 Mont. 458, 464, 743 P.2d 1025, 1028 ("denial
of the motion [to compel discovery] lies squarely within the
District Court's di~cretion'~). It did not abuse that discretion
here.
The issue before the District Court was whether any genuine
issue of material fact precluded summary judgment as to Jaret
Kienenberger's parents' liability for J.L.Is injuries. Jaret's
youth court record was not relevant to the issue of his parents'
liability, because that depends, as we have seen, on the existence
of a duty to J.L. The Kienenbergers owed no duty to J.L. We hold,
8
therefore, that the District Court properly exercised its
discretion granting a protective order covering all the documents
in Jaret's youth court records.
Apart from alleging the importance of Jaret's youth court
records, the affidavit accompanying J.L.'s Rule 56(f) motion did
not establish why she needed more time to prepare for deposing the
Kienenbergers. Their affidavits were filed on January 28, 1992,
more than six weeks before the hearing, and both had responded to
J.L.'s interrogatories and requests for production by February 11,
1992, more than a month before the hearing. J.L.'s affidavit did
not explain why depositions could not have been taken during that
month.
We hold that the District Court did not abuse its discretion
in tacitly denying J.L.'s Rule 56(f) motion and conducting the
summary judgment hearing. In view of the court's finding that J.L.
had obtained all of the available relevant information she needed
from the Kienenbergers' affidavits, her affidavit is unpersuasive
and inadequate. As we held in Howell v. Glacier General Assurance
Co. (1989), 240 Mont. 383, 785 P.2d 1018, a district court does not
abuse its discretion in denying a Rule 56(f) motion that does not
establish how the proposed discovery could preclude summary
judgment .
Aff irmed.
We concur:
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
Section 27-1-701, MCA, provides that every person is
responsible for injury to others caused by his or her failure to
exercise ordinary care. The majority casually dismisses this
statutory responsibility by claiming that it only applies to each
individual's own conduct. However, when a parent fails to exercise
ordinary care in the supervision of his or her child, it is, in
fact, the parent's conduct with which the law is concerned.
I would adopt the proposed rule of law set forth in
Restatement (Second) of Torts 5 316 (1965). That rule provides:
A parent is under a duty to exercise reasonable care
so to control his 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 he has the
ability to control his child, and
(b) Knows or should know the necessity and
opportunity for exercising such control.
I would, as has been done in other jurisdictions, limit the
application of parental liability under 5 316 to those situations
where the parent was aware of the particular dangerous propensity
which caused the harm complained of. See Pesek v. DiscepoIo (Ill. App.
1st Dist. 1985), 475 N.E.2d 3.
As it often does when it finds it convenient, the majority
points out that the Legislature has not found it necessary to
expand our previous rule of nonliability for parents who fail to
exercise reasonable supervision over their children. However, this
11
is a poor excuse for this Court's failure to recognize the
obligation imposed on all people under § 27-1-701, MCA, and this
Court's responsibility to develop the common law in a manner that
both effectuates that obvious public policy, and that is not
inconsistent with any other legislative act. See 5 5 1-1-108 and
-109, MCA. The majority has shown no reluctance to develop common
law responsibilities in the absence of legislative action where
they are consistent with the majority's notion of good p u b l i c
policy. SeeMaguirev. State (Mont. 1992), 835 P.2d 755, 764, 49 St.
Rep. 688, 694 (Trieweiler dissenting), (citing Peizce v. Fox (lggl),
248 Mont, 521, 813 P.2d 4 2 9 ; Story v. City ofBoreman (l99O), 243 Mont.
436, 791 P.2d 767; Brandenburgerv. Toyota (1973), 162 Mont. 506, 513
P . 2 d 2 6 8 ; Kornec v. MikeUbrseMinirzg Co. (1947), 120 Mont. 1, 180 P.2d
252).
Furthermore, since there was no Montana precedent in effect at
the time this case was decided by the District Court, I would
reverse the District Court judgment dismissing the plaintifirs
complaint and remand this case for further discovery so that each
party has a fair opportunity to develop those facts necessary to
pursue or defend a claim based upon t h e aforementioned rule of
liability,
For these reasons, I dissent from the vajority opinion.
Justice William E. Hunt, Sr., concurs in the foregoing dissent
of Justice Trieweiler.
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