No. 95-145
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
JOANN R. WERREand JOHN D. WERRE,
Plaintiffs, Respondents and
Cross-Appellants,
v.
MARGARETR. DAVID, Individually and
as Personal Representative of the
Estate of KENNETH C. DAVID,
Defendants and Appellants.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Daniel W. Hileman; Murray & Kaufman, Kalispell,
Montana (argued)
For Respondents:
Joe Bottomly; Bottomly Law Offices, Kalispell,
Montana (argued)
For Amicus Curiae:
Linda Mangel, Attorney at Law, Seattle Washington
Joan Jonkel, Attorney at Law, Missoula, Montana
(for Northwest Women's Law Center)
David R. Paoli, Attorney at Law, Missoula, Montana
(for Montana Trial Lawyers Association)
Submitted: November 16, 1995
Decided: March 14, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Margaret R. David (Margaret), individually and as personal
representative of the Estate of Kenneth C. David (Estate), appeals
from the judgment entered by the Eleventh Judicial District Court,
Flathead County, on a jury verdict awarding Joann R. Werre (Joann)
and John D. Werre (John) damages in the amount of $250,000. Joann
cross-appeals, but requests that we not address the issues she
raises unless we reverse and remand for a new trial as a result of
Margaret's appeal. We affirm and, therefore, deem the cross-appeal
withdrawn.
We restate the issues on appeal as follows:
1. Did the District Court err in denying Margaret's motion
for a directed verdict on the basis that whether Joann's claim was
time-barred pursuant to § 27-2-216, MCA, was a question of fact for
the jury?
2. Did the District Court err in concluding that the tolling
provisions of § 27-2-216, MCA, include negligence claims based on
intentional sexual abuse?
3. Did the District Court abuse its discretion in denying
Margaret's motion to edit Dr. Dennis Malinak's deposition testimony
to exclude reference to his conversation with Margaret?
4. Did the District Court abuse its discretion in excluding
certain evidence regarding Joann and John's marital problems?
5. Did the District Court err in denying Margaret's motion
for a directed verdict on the negligence claim against her
individually?
2
6. Did the District Court err in instructing the jury on
causation?
7. Did the District Court abuse its discretion in denying
Margaret's motion for a new trial?
Margaret married Ben Carkuff (Ben) in 1945 and they had four
children, including Joann. When Joann was approximately six to
eight years old, she was sexually abused by Ben's brother, whom she
called Uncle Francis, during weekly visits to Ben's parents' home.
The abuse by Uncle Francis stopped in 1957 when the family's weekly
visits to Joann's paternal grandparents' home ceased after Margaret
divorced Ben. Margaret married Kenneth David (Kenneth) in 1957 and
they and Margaret's children, including Joann, moved from Minnesota
to Kalispell, Montana.
When Joann was approximately twelve to fourteen years old,
Margaret asked Kenneth to "give" Joann sex education. She took all
of her children except Joann out for ice cream so that Kenneth
could be alone with Joann. Kenneth had sexual intercourse with
Joann on this occasion. After that incident, Kenneth also fondled
Joann several times.
Joann married John when she was seventeen years old. She did
not tell anyone about the abuse by either her uncle or Kenneth
until 1989, when she told John about Uncle Francis' abuse. John
recommended that Joann see Carol Lee (Lee), a clinical social
worker, to discuss the abuse.
Lee began counseling Joann in May of 1989. She originally
diagnosed Joann as having an adjustment disorder with mixed
3
emotional features. In November of 1989, Lee further diagnosed
Joann with post-traumatic stress disorder. She concluded that
Joann's mental disorders were caused by both the abuse by Uncle
Francis and the abuse by Kenneth and, further, that either abuse
could have caused Joann's mental disorders.
Joann confronted Margaret and Kenneth regarding the sexual
abuse by Kenneth and Uncle Francis in November of 1989. Kenneth
did not deny that he sexually abused Joann. Kenneth died in July
of 1990.
In December of 1989, Joann became an inpatient at Glacier View
Hospital (Glacier View), where she remained for approximately
twenty-two days. During that time, Dr. Dennis Malinak, a
psychiatrist, treated her. Dr. Malinak diagnosed Joann with a
borderline personality disorder and an adjustment disorder; he
later agreed with Lee's diagnosis of post-traumatic stress
disorder. Dr. Malinak opined that both the abuse by Uncle Francis
and the abuse by Kenneth were causal factors in Joann's disorders
and, further, that Kenneth's abuse was a major cause of those
disorders.
On September 3, 1992, Joann filed a complaint against Margaret
individually and as personal representative of Kenneth's Estate.
As subsequently refined in the Pretrial Order, Joann alleged the
intentional tort of sexual abuse against Kenneth and intentional
or, alternatively, negligent conduct by Margaret in aiding
Kenneth's sexual abuse and failing to use due care to protect her.
During the jury trial, the District Court directed a verdict in
4
Margaret's favor on Joann's intentional tort claim against her
individually. The jury found that Kenneth sexually abused Joann
and that Margaret was negligent; it awarded $250,000 in damages.
Margaret appeals in both her individual capacity and her capacity
as personal representative of Kenneth's Estate. Additional facts
are set forth below where necessary for our resolution of the
issues.
1. Did the District Court err in denying Margaret's
motion for a directed verdict on the basis that whether
Joann's claim was time-barred pursuant to § 27-2-216,
MCA, was a question of fact for the jury?
Joann filed this action on September 3, 1992. Margaret
contends that the undisputed evidence establishes that Joann
discovered that her injuries were caused by the childhood sexual
abuse by Kenneth prior to September of 1989. On that basis, she
argues that the District Court was required to direct a verdict in
her favor as a matter of law under § 27-2-216, MCA.
A directed verdict is proper only when there is a complete
absence of any evidence which would justify submitting an issue to
a jury, and all inferences which can be drawn from the evidence
must be considered in a light most favorable to the opposing party.
Pierce v. ALSC Architects, P.S. (1995), 270 Mont. 97, 107, 890 P.2d
1254, 1260 (citing Jacques v. Montana Nat'1 Guard (1982), 199 Mont.
493, 649 P.2d 1319). A district court must deny a motion for a
directed verdict if substantial conflicts in the evidence exist.
Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 533, 885
P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass'n
(1992), 253 Mont. 221, 833 P.2d 1587).
5
Section 27-2-216(l) (b), MCA, provides, in relevant part:
(1) An action based on intentional conduct brought by a
person for recovery of damages for injury suffered as a
result of childhood sexual abuse must be commenced not
later than:
. . .
(b) 3 years after the plaintiff discovers or
reasonably should have discovered that the injury was
caused by the act of childhood sexual abuse.
In order for the District Court to have properly denied Margaret's
motion for a directed verdict in this regard, there must be
evidence of record that Joann did not discover the causal
connection between Kenneth's abuse and her mental disorders until
after September 3, 1989.
It is true, as Margaret contends, that the record contains
evidence indicating that Joann connected Kenneth's abuse with her
psychological problems prior to September 3, 1989. On cross-
examination Joann testified that she did not tell a male therapist
she saw in 1970 about Kenneth's sexual abuse because she distrusted
men as a result of that abuse. Joann also conceded on cross-
examination that, when she first saw Lee in May of 1989, she made
some connection between her need for counseling and her childhood
sexual abuse.
However, Joann presented evidence indicating that she did not
discover that her mental disorders were connected to Kenneth's
abuse until after September 3, 1989. She testified that, although
she was always aware that she had been sexually abused, she did not
connect her abuse with her psychological problems until November of
1989. Lee opined that Joann began to connect the sexual abuse by
6
Kenneth with her mental disorders after she confronted Margaret and
Kenneth in November of 1989. Dr. Malinak testified that, when
Joann was hospitalized at Glacier View in December of 1989, she was
in the process of connecting her sexual abuse with her mental
disorders. Moreover, Herman Androes (Androes), a clinical
psychologist and therapist testifying on behalf of Margaret and the
Estate, conceded on cross-examination that he agreed with the
conclusions of Lee and Dr. Malinak in this regard.
This review of the record demonstrates the substantial
conflicts in the evidence regarding when Joann discovered that her
injuries were caused by the childhood sexual abuse she experienced,
for purposes of applying the time bar contained in § 27-2-216, MCA.
It is within the province of the jury to resolve conflicts in the
evidence. Barthule v. Karman (1994), 268 Mont. 477, 485, 886 P.2d
971, 976. Therefore, based on the record before us, we conclude
that the time at which Joann discovered a connection between
Kenneth's sexual abuse and her mental disorders was a question of
fact for the jury. Accordingly, we hold that the District Court
did not err in denying Margaret's motion for a directed verdict on
the basis of § 27-2-216(1)(b), MCA.
2. Did the District Court err in concluding that the
tolling provisions of § 27-2-216, MCA, include negligence
claims based on intentional sexual abuse?
Margaret argues that the plain language of § 27-2-216, MCA,
refers only to intentional conduct and, therefore, the statute does
not toll the general three-year statute of limitations for
negligence actions. Alternatively, she argues that, if the
7
statutory language is ambiguous, the legislative history of § 27-2-
216, MCA, establishes the legislature's intent to limit the
applicability of the tolling provision to actions against
perpetrators of sexual abuse against minors. Under either
approach, Margaret contends that § 27-2-216, MCA, includes only
claims against perpetrators of intentional sexual abuse and that,
because Joann's remaining claim against her individually alleges
only that she was negligent, the claim cannot be maintained under
§ 27-2-216, MCA.
The District Court concluded that 5 27-2-216, MCA, includes
negligence claims which are based on intentional conduct and that,
if the Montana legislature had intended to limit its applicability
solely to actions against perpetrators of sexual abuse, it could
have done so specifically. We review a district court's
conclusions of law to determine if the court's interpretation of
the law is correct. Carbon County v. Union Reserve Coal Co., Inc.
(1995), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc.
v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601,
603).
In interpreting a statute, we look first to the plain meaning
of the words it contains. Clarke v. Massey (1995), 271 Mont. 412,
416, 897 P.2d 1085, 1088. Where the language is clear and
unambiguous, the statute speaks for itself and we will not resort
to other means of interpretation. Clarke, 897 P.2d at 1088. It In
the search for plain meaning, 'the language used must be reasonably
and logically interpreted, giving words their usual and ordinary
8
meaning.'" Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 427,
715 P.2d 443, 445 (quoting In re Matter of McCabe (1975), 168 Mont.
334, 339, 544 P.2d 825, 828).
Section 27-2-216, MCA, addresses the time within which a
person who has suffered injury as a result of childhood sexual
abuse must bring "[aIn acti on based on intentional conduct . .
11 The meaning of "based on" is determinative of whether § 27-2-
216, MCA, includes negligence claims. Margaret does not advance a
definition for the words "based on," but her unsupported position
appears to be that "based on" means "equal to."
We previously have determined the ordinary meaning of the
statutory language "based upon." State ex rel. Snidow et al. v.
State Bd. of Equalization et al. (1933), 93 Mont. 19, 17 P.2d 68.
State Bd. of Euualization involved a statute under which the value
of metals for license tax purposes was to be determined. The
statute stated, in relevant part, that "the gross value of the
[metal] . . shall be determined by taking the market value of all
merchantable metals or mineral products . . . based upon the
average quotations . . . in the City of New York . . during the
calendar year immediately preceding." State Bd. of Euualization,
17 P.2d at 71 (emphasis added). Essentially arguing that "based
upon" means "equal to," Snidow contended that the tax should have
been determined by merely multiplying the New York price of the
metals by the number of pounds or ounces of metal produced. State
Bd. of Eaualization, 17 P.2d at 69. The State Board of
Equalization contended that the New York prices should be used as
9
a base for determining Montana values, essentially arguing that
"based upon" means a starting point for determination. State Bd.
of Eaualization, 17 P.2d at 70. We stated that "the ordinarily
accepted meaning of the words 'based upon' is an initial or
starting point . . . .'I State Bd. of Eaualization, 17 P.2d at 73.
Moreover, we have indicated that "on" and "upon" are synonymous
and, thus, interchangeable. Northern Pac. R.R., Co. v. Gas Dev.
Co. (1936), 103 Mont. 214, 218, 62 P.2d 204, 205. Thus, we
rejected in State Bd. of Eaualization an argument similar to
Margaret's in this case regarding the plain meaning of "based on."
Our determination in State Bd. of Eaualization regarding the
ordinary and accepted meaning of "based upon" is consistent with
the dictionary definition of "base." "Base" is defined as "that
on which something rests or stands: FOUNDATION . . the point or
line from which a start is made in an action or undertaking . .
.'I WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY, 180 (1971) Accordingly,
we conclude that the plain meaning of "based on" is an initial or
starting point or foundation.
The legislature affirmatively chose to use the words "based
on" in § 27-2-216, MCA. Our role in interpreting statutes is "to
ascertain and declare what is in terms or in substance contained
therein, not . . . to omit what has been inserted." Section l-2-
101, MCA. We conclude that, under the plain meaning of the
language used in § 27-2-216, MCA, an action is "based on
intentional conduct" if intentional sexual abuse is the starting
point or foundation for the claim.
10
Here, Joann's negligence claim against Margaret would not
exist absent the intentional sexual abuse by Kenneth; stated
differently, Kenneth's intentional sexual abuse of Joann is the
starting point or foundation for Joann's negligence claim against
Margaret. Thus, Joann's negligence claim against Margaret is,
under the plain meaning of the language in 5 27-2-216, MCA, "based
on intentional conduct." To accept Margaret's argument that § 27-
2-216, MCA, includes only claims for intentional conduct would
require us to disregard the express language "based on" contained
therein, thus exceeding our judicial role in interpreting statutes.
Section l-2-101, MCA. Since the intentional sexual abuse by
Kenneth is the foundation for Joann's negligence claim against
Margaret, Joann's claim is within the purview of § 27-2-216, MCA.
Moreover, § 27-2-216, MCA, cannot be read in a vacuum. We
must harmonize statutes relating to the same subject matter, giving
effect to each. Crist v. Segna (1981), 191 Mont. 210, 212, 622
P.2d 1028, 1029 (citing State ex rel. City of Townsend v. D.A.
Davidson, Inc. (1975), 166 Mont. 104, 531 P.2d 370).
Section 27-2-204, MCA, provides the limitations periods for
initiating both negligence and intentional tort actions. It
provides, in pertinent part:
(1) Except as provided in 27-2-216 and 27-2-217, the
period prescribed for the commencement of an action upon
a liability not founded upon an instrument in writing is
within 3 years.
. .
(3) The period prescribed for the commencement of
an action for libel, slander, assault, battery, false
imprisonment, or seduction is within 2 years.
11
Section 27-z-204, MCA (emphasis added). Subsection (1) of this
statute, which encompasses negligence actions, specifically cross-
references the tolling provisions of § 27-2-216, MCA, and thereby
engrafts the § 27-2-216, MCA, tolling provision onto the general
statute of limitations for negligence actions. To accept
Margaret's contention that § 27-2-216, MCA, is limited to claims
against perpetrators of sexual abuse would require us to contravene
our role in interpreting statutes by omitting from § 27-2-204(l),
MCA, the specific cross-reference enacted by the legislature. See
§ l-2-101, MCA.
Thus, reading these statutes together buttresses our
interpretation of the plain meaning of the language used in § 27-2-
216, MCA, on a stand-alone basis. We conclude that § 27-2-216,
MCA, is plain, unambiguous, direct and certain and that it is not
limited to intentional tort actions against perpetrators of
childhood sexual abuse. Accordingly, we hold that the District
Court did not err in concluding that the tolling provisions of §
27-2-216, MCA, include negligence claims based on intentional
sexual abuse.
3. Did the District Court abuse its discretion in
denying Margaret's motion to edit Dr. Malinak's
deposition testimony to exclude reference to his
conversation with Margaret?
In September of 1994, Joann video-taped Dr. Malinak's
deposition pursuant to a notice indicating the potential use of the
deposition at trial as perpetuated testimony. During the
deposition, Dr. Malinak testified regarding a telephone
conversation he had with Margaret while Joann was hospitalized at
12
Glacier View. Specifically, he stated that he "sense[dl [Margaret]
was aware that [the sexual abuse1 was going to happen and, in fact,
that's why she took the kids." Margaret did not object to Dr.
Malinak's testimony during the deposition.
Approximately two weeks later, Margaret filed "Defendant's
Objections to Testimony of Dr. Dennis Malinak & Motion for Order to
Edit Deposition." She contended that Joann's questions were
leading, called for a conclusion and called for speculation. Joann
responded that, had Margaret objected during the deposition, she
could have established a sufficient foundation for Dr. Malinak's
testimony.
The District Court denied Margaret's motion to edit Dr.
Malinak's testimony. We review a district court's evidentiary
ruling to determine if the court abused its discretion. In the
Matter of the Seizure of $23,691.00 in United States Currency
(Mont. 1995), 905 P.2d 148, 152, 52 St.Rep. 1063, 1065 (citing
State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380).
Margaret argues generally on appeal that Dr. Malinak's
impressions about whether she knew Kenneth would sexually abuse
Joann constitute an inadmissible conclusion as to what was in her
mind. As we previously noted, however, Margaret did not object to
Dr. Malinak's testimony during his deposition.
Rule 32(d)(3)(B), M.R.Civ.P., addresses the effect of errors
and irregularities in depositions. It provides that any error "in
the form of the questions or answers, . . . and errors of any kind
which might be obviated, removed, or cured if promptly presented,
13
are waived unless reasonable objection thereto is made at the
taking of the deposition." Rule 32(d) (3) (B), M.R.Civ.P.
Margaret's objections to questions posed and to Dr. Malinak's
responses were not made during the deposition as required by Rule
32(d) (3) (B), M.R.Civ.P. We conclude, therefore, that Margaret
waived any errors regarding the admissibility of portions of Dr.
Malinak's testimony. We hold that the District Court did not abuse
its discretion in denying Margaret's motion to edit Dr. Malinak's
deposition testimony.
4. Did the District Court abuse its discretion in
excluding certain evidence regarding Joann and John's
marital problems?
Prior to trial, Joann filed a motion in limine to exclude
evidence of the marital problems she and John experienced on the
basis that it was irrelevant and inflammatory. Margaret responded
that the evidence was relevant to issues of causation and damages
and that her case would be prejudiced by excluding it.
The District Court granted Joann's motion in limine with
regard to evidence that John had an extramarital affair and that
Joann had a gun to protect herself from John while staying with her
brother prior to her admission to Glacier View. However, the court
refused to exclude evidence about whether the marital discord on a
stand-alone basis--rather than the sexual abuse--caused, or
substantially contributed to, Joann's counseling bills.
Margaret contends that the District Court erred in excluding
evidence of Joann's marital discord except on a limited basis. She
argues that the court's exclusion of such evidence precluded the
14
j U~Y from determining that Joann's counseling bills were
attributable to her marital discord rather than to the sexual
abuse. A district court has wide discretion in determining the
admissibility of evidence; we review a trial court's exclusion of
evidence to determine if the court abused its discretion. Jacobsen
et al. v. State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695
(citations omitted).
Relevant evidence is generally admissible at trial. Rule 402,
M.R.Evid. "Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." Rule 401, M.R.Evid. We have
stated that the test of relevance is "whether an item of evidence
will have any value, as determined by logic and experience, in
proving the proposition for which it is offered." State v.
Fitzpatrick (1980), 186 Mont. 187, 207, 606 P.2d 1343, 1354.
Here, Margaret claimed that the excluded evidence--that John
had an extramarital affair and that Joann had a gun to protect
herself from John--was relevant to the issues of causation and
damages. Margaret was attempting to prove through evidence of
Joann and John's marital problems that the marital problems were at
least a cause of Joann's mental disorders. The excluded evidence
arguably has some value in proving that Joann's marital problems
contributed to or caused her injuries and in determining her
damages.
There is an exception, however, to the admissibility of
15
relevant evidence. "Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury
. . . 11 Rule 403, M.R.Evid.
In Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108, we
held that it was an abuse of discretion to admit evidence regarding
the claimant's poor home environment on the basis that, although
the evidence was relevant under Rule 402, M.R.Evid., no evidence at
trial established a medical connection between poor home
environment and the claimant's symptoms. Kimes, 705 P.2d at 110.
In Kimes, expert witnesses indicated that poor home environment may
cause symptoms such as those exhibited by the claimant; however,
the testimony was not sufficient to establish a medical connection.
Kimes, 705 P.2d at 110.
Similarly, in this case, even Margaret's own expert witness
did not testify that Joann's marital problems caused her mental
disorders. Androes admitted on cross-examination that, while
Joann's marital discord caused her some stress, it was not a
significant factor in causing her mental disorders. Moreover,
since the marital problems were not a significant causal factor,
they could not significantly impact on the question of damages. We
conclude that, under these facts, it was within the District
Court's discretion to exclude the evidence that John had an
extramarital affair and that Joann had a gun to protect herself
from John prior to her admission to Glacier View as both misleading
and more prejudicial than probative under Rule 403, M.R.Evid.
16
Accordingly, we hold that the District Court did not abuse its
discretion in excluding this particular evidence regarding Joann's
marital problems.
Finally, Margaret's contention that she was precluded from
establishing a basis upon which the jury could find that marital
discord, rather than sexual abuse, caused Joann's mental disorders
and damages ignores the record. On cross-examination, Dr. Malinak
testified that a considerable amount of Joann's therapy at Glacier
View centered around her and John's marital problems. Lee also
conceded on cross-examination that Joann discussed her marital
problems, including a possible divorce, during virtually every
counseling session and, in addition, opined that John had caused
Joann psychological injury by being verbally and physically
abusive. Thus, contrary to her argument, Margaret presented
substantial evidence that all, or, a portion, of Joann's counseling
bills were attributable to marital discord rather than to sexual
abuse.
5. Did the District Court err in denying Margaret's
motion for a directed verdict on the negligence claim
against her individually?
Joann contended at trial that Margaret was negligent in that
she breached her parental duty of care to protect Joann. Margaret
moved for a directed verdict on the basis that Joann failed to
present evidence from which a jury could find that she was
negligent. The District Court concluded that there was sufficient
evidence regarding Margaret's role in Kenneth's abuse of Joann to
go to the jury and denied Margaret's motion for a directed verdict.
Margaret argues that the undisputed evidence established only
that she asked Kenneth to discuss sex education with Joann and that
such evidence is insufficient as a matter of law to support a
finding of negligence. On that basis, she asserts that the
District Court erred in denying her motion for a directed verdict.
As discussed above, a directed verdict is proper only where there
is a complete absence of evidence justifying submitting the issue
to a jury. Pierce, 890 P.2d at 1260 (citing Jacaues, 649 P.2d at
1325).
Margaret's "undisputed evidence" argument simply ignores the
record before us. Joann testified that, when she confronted
Margaret and Kenneth in November of 1989, Margaret admitted having
Kenneth have sex with her under the pretext of sex education. Dr.
Malinak's video-taped deposition testimony that he sensed from
speaking with Margaret that she was aware that Kenneth's sexual
abuse of Joann was going to occur corroborates Joann's testimony.
We conclude that there was sufficient evidence to submit the
issue of Margaret's negligence to a jury. Accordingly, we hold
that the District Court did not err in denying Margaret's motion
for a directed verdict on the negligence claim against her
individually.
Margaret also argues generally that substantial credible
evidence does not support the jury's verdict that she was
negligent. Substantial evidence is evidence which a reasonable
mind might accept as adequate to support a conclusion and may be
based on weak and conflicting evidence. King v. Zimmerman (1994),
18
266 Mont. 54, 60, 878 P.2d 895, 899 (citing Arnold v. Boise Cascade
(1993) I 259 Mont. 259, 265, 856 P.2d 217, 220). The weight given
to the evidence and the credibility of witnesses lie solely within
the province of the jury; we will not reweigh conflicting evidence.
Thayer v. Hicks (1990), 243 Mont. 138, 153, 793 P.2d 784, 793
(citing Stewart v. Fisher (1989), 235 Mont. 432, 436, 767 P.2d
1321, 1323).
Margaret's substantial evidence argument is based on her
contention that portions of Dr. Malinak's testimony were
inadmissible, and we have concluded otherwise. Moreover, Joann's
testimony that Margaret admitted in 1989 that she "had [Kenneth]
have sex with [Joann]" constitutes substantial credible evidence
of Margaret's negligence on a stand-alone basis. We conclude that
substantial credible evidence supports the jury's finding that
Margaret was negligent.
As her final related argument, Margaret contends that
Kenneth's intentional sexual abuse of Joann breaks any causal
connection between her acts and Joann's injuries and precludes any
liability on her part for those injuries as a matter of law. She
relies on Azure v. U.S. Health and Human Services (D. Mont. 1991),
758 F.Supp. 1382, and Deeds v. United States (D. Mont. 1969), 306
F.Supp. 348, for the proposition that "where harm is intentionally
caused by a third person and is not within the scope of risk
created by the defendant's conduct[,l" the third person's
intentional act precludes imposition of 1 iabi lity against the
defendant.
19
Margaret's reliance on Azure and Deeds is misplaced. Although
Margaret correctly states the rule from those cases on intervening,
superseding causes, she does not properly apply it due to her
continued mischaracterization of the record to the effect that
"there was no evidence [that Kenneth's abuse of Joann] was
contemplated by [her]."
Causation issues generally present questions of fact; where
conflicting evidence is presented at trial, such issues must be
decided by a jury. Payne v. Sorenson (1979), 183 Mont. 323, 327,
599 P.2d 362, 365. As discussed above, Joann presented evidence
that Margaret knew Kenneth intended to have sexual contact with her
in the context of educating her about sex and that Margaret removed
her other children from the house for that reason. This evidence
is sufficient to raise a fact issue for the jury with regard to
whether the harm to Joann caused by Kenneth's intentional acts was
within the scope of risk created by Margaret's conduct. On that
basis, we conclude that Margaret's argument that Kenneth's abuse of
Joann constituted an intervening, superseding cause of Joann's
injuries which precluded the imposition of liability on her as a
matter of law is without merit.
6. Did the District Court err in instructing the jury on
causation?
On behalf of the Estate, Margaret advances a number of
arguments under which she contends the District Court failed to
properly instruct the jury on causation. A district court has
discretion in instructing the jury and we will not reverse the
court on the basis of alleged instructional errors absent an abuse
20
of discretion. Cechovic v. Hardin &ASSOC., Inc. (Mont. 1995), 902
P.2d 520, 527, 52 St.Rep. 854, 860 (citing Arnold, 856 P.2d at
222). In reviewing jury instructions, we consider the instructions
given in their entirety and in connection with the evidence
presented at trial. Cechovic, 902 P.2d at 527 (citing Story v.
City of Bozeman (19931, 259 Mont. 207, 222, 856 P.2d 202, 211).
Margaret argues that the District Court erred by giving
Instruction No. 12, which she contends essentially directed the
jury to award Joann damages if it found that Kenneth sexually
abused Joann. Margaret contends that the instruction failed to
require the jury to find that Kenneth's conduct caused Joann's
injuries and resulted in the imposition of strict liability for
Kenneth's conduct.
Instruction No. 12 reads as follows:
As to the Estate of Kenneth David, you are instructed
that if you find he sexually abused Joann Werre, then you
should determine the amount of money that would
compensate her for the injuries, if any she received,
according to the further instructions I will give you.
While Margaret is correct that this instruction does not require a
causation finding, it does refer the jury to the court's other
instructions. In this regard, the District Court instructed the
jury that "[iIf you find that . . Kenneth David, knowingly had
sexual intercourse with [Joann] . . . you may determine what
damages, if any, were caused by his unlawful conduct." Considering
these instructions together, as we must (see Cechovic, 902 P.2d at
527), it is clear that the jury was required to determine whether
Kenneth's conduct caused Joann any damages. Thus, we conclude that
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the instructions did not result in the imposition of strict
liability for Kenneth's conduct.
Margaret also argues that Instruction No. 12 required the jury
"to award all damages arising out of either the Uncle Francis
abuse, or the [Kenneth] incident, against [Margaret and the
Estate] .'I Instruction No. 12 does not mention the abuse by Uncle
Francis and certainly did not require the jury to award all damages
arising from either Uncle Francis' or Kenneth's abuse against
Margaret and the Estate. It merely directed the jury to determine
whether and, if so, the extent to which Kenneth's abuse caused
damages to Joann; it did not foreclose the jury from determining
that portions of Joann's damages had another cause. Moreover, the
District Court specifically instructed the jury that it could
apportion damages by giving Instruction No. 23, which reads as
follows:
Where a preexisting condition has been aggravated by the
act sued upon, it is your duty, if possible, to apportion
the amount of injury between that caused by the
preexisting condition and that caused by the act sued
upon . . .
Thus, it is clear that the court's instructions did not require the
jury to award all damages, regardless of the source from which they
arose, against Margaret and the Estate.
Margaret also seems to argue that the District Court failed to
instruct the jury on her theory that Joann's injuries were caused
solely by Uncle Francis' abuse. Her theory was supported at trial
by Androes' testimony that, in his opinion, Joann's injuries were
caused by Uncle Francis' abuse.
22
However, Margaret did not offer an instruction encompassing
her theory that Uncle Francis' abuse was the sole cause of Joann's
injuries. Rule 51, M.R.Civ.P., provides that "[nlo party may
assign as error the failure to instruct on any point of law unless
that party offers an instruction thereon." We conclude, therefore,
that Margaret is precluded from assigning error in this regard.
Margaret's final assertion of instructional error is that the
District Court erred by failing to instruct the jury to determine
whether Kenneth's sexual abuse of Joann was the cause-in-fact and
proximate cause of her injuries. The record reflects that Margaret
and Joann each proposed a cause-in-fact and proximate cause
instruction covering both defendants. Margaret objected to Joann's
proposed causation instruction and the court refused it. Margaret
then withdrew her own proposed causation instruction covering both
defendants and offered a revised instruction covering only her own
conduct. The District Court gave Margaret's proposed instruction
over Joann's objection.
As we stated above, "[nlo party may assign as error the
failure to instruct on any point of law unless that party offers an
instruction thereon." Rule 51, M.R.Civ.P. Having failed to offer
a causation instruction covering the alleged deficiency of which
she now complains on appeal, Margaret's assertion of error is not
properly before us
We hold that the District Court did not err in instructing the
jury on causation.
7. Did the District Court abuse its discretion in
denying Margaret's motion for a new trial?
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Margaret argues that the District Court erred in denying her
motion for a new trial because the jury's $250,000 damage award was
not supported by the evidence and was the result of passion and
prejudice. Section 25-11-102, MCA, sets forth the grounds for a
new trial and provides, insofar as it is relevant here, that
[tlhe former verdict . . may be vacated and a new trial
granted on the application of the party aggrieved for any
of the following causes materially affecting the
substantial rights of such party:
. . . .
(5) excessive damages appearing to have been given
under the influence of passion or prejudice;
(6) insufficiency of the evidence to justify the
verdict . . . .
In considering a motion for a new trial based on an allegation of
excessive damages, a district court cannot substitute its judgment
for that of the jury unless it appears that the amount awarded is
so out of proportion as to shock the conscience. Gibson v. Western
Fire Ins. Co. (1984), 210 Mont. 267, 290, 682 P.2d 725, 738. We
review a district court's denial of a motion for a new trial to
determine if the court abused its discretion. Gibson, 682 P.2d at
738.
With regard to the amount of the jury's verdict, the record
establishes the monetary amount of Joann's past counseling bills
and her bills from Glacier View. Dr. Malinak testified that Joann
was charged $14,240.55 for a twenty-one day stay at Glacier View
and that, in his opinion, this was a reasonable charge. He further
testified that Joann was charged $900 for "services" during her
hospitalization at Glacier View. Lee testified that she charged
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Joann $50 to $60 for each session and that all of Joann's
counseling was related to her childhood sexual abuse. Between May
of 1989 and September of 1994, Joann incurred approximately
$3,457.50 in counseling bills from Lee. Thus, Joann's counseling
and hospitalization bills to the date of trial totalled $18,598.05.
Joann also presented evidence regarding her future need for
treatment. Dr. Malinak opined that Joann needs intensive
outpatient treatment twice a week for two to four years and that
she may require additional inpatient treatment. Dr. Malinak did
not opine as to how much Joann's future care would cost. However,
he did state that, since Lee had counseled Joann in the past, he
would suggest that Joann continue her treatment with Lee. Thus,
based on Lee's fee for a counseling session and Dr. Malinak's
opinion regarding Joann's future treatment needs, Joann would incur
at least $12,480 for two years of counseling or $24,960 for four
years of counseling with Lee. This calculation assumes that Lee's
fee will not increase within the next two to four years. Moreover,
these estimated figures do not include the cost of any future
inpatient treatment Joann may require.
The record also contains evidence demonstrating the pain and
suffering Joann endured as a result of Kenneth's sexual abuse and
Margaret's allowing the abuse to occur. In this regard, we have
stated that
there is no definite standard fixed by law in awarding
damages for past or future mental and physical pain and
suffering; all that is required is that the jury exercise
calm and reasonable judgment in its award.
Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835, 841.
25
Here, approximately 35 years passed between Kenneth's sexual
abuse of Joann and the trial in this case, during which time Joann
has been impacted by the effects of the abuse. Lee opined that
Joann's marital conflict, or at least the manner in which she dealt
with the conflict, was attributable to her childhood sexual abuse.
Joann testified that she felt ashamed and nervous after Kenneth
sexually abused her. She further testified that, after Kenneth's
abuse, she did not feel safe in her home and felt depressed,
worthless and unable to trust others.
We conclude that substantial evidence supports the jury's
award of $250,000 and that the award does not shock the conscience.
Accordingly, we hold that the District Court did not abuse its
discretion in denying Margaret's motion for a new trial.
Affirmed.
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