D.H. v. Whipple, Court of Appeals Case No. 48A05–1706–CT–1345

• Decision Date: 29 May 2018
• Docket Number: Court of Appeals Case No. 48A05–1706–CT–1345
• Citation: 103 N.E.3d 1119
• Parties: D.H., a Minor, BY her Parent, A.M.J., and A.M.J., Individually, Appellants–Plaintiffs, v. Mary WHIPPLE, Appellee–Defendant, and Robert Whipple (Deceased), Defendant Below.
• Court: Indiana Appellate Court

103 N.E.3d 1119

D.H., a Minor, BY her Parent, A.M.J., and A.M.J., Individually, Appellants–Plaintiffs,

v.Mary WHIPPLE, Appellee–Defendant,andRobert Whipple (Deceased), Defendant Below.

Court of Appeals Case No. 48A05–1706–CT–1345

Court of Appeals of Indiana.

FILED May 29, 2018

Rehearing denied August 6, 2018

Attorneys for Appellants: Robert H. Ebbs, Theresa L.D. Ebbs, Katherine M. Marshall, Glaser & Ebbs, Indianapolis, Indiana

Attorneys for Appellee: Michael R. Bain, Lauren M. Hardesty, Hume Smith Geddes Green & Simmons, LLP, Indianapolis, Indiana

Attorney for Amicus Curiae Indiana Trial Lawyers Association: Scott A. Faultless, Craig Kelley & Faultless LLC, Indianapolis, Indiana

Attorneys for Amicus Curiae Defense Trial Counsel of Indiana: Lucy R. Dollens, Jacob V. Bradley, Quarles & Brady LLP, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] D.H. ("Child"), through her mother and guardian, A.M.J. ("Mother"), and Mother individually (collectively, the "Appellants"), bring this interlocutory appeal from the trial court's grant of summary judgment on the issue of negligence in favor of Mary Whipple, Mother's mother and Child's maternal grandmother.Appellants present only one question for our review, whether the trial court properly granted summary judgment.Concluding genuine issues of material fact remain, we reverse and remand.

Facts and Procedural History

[2]Robert Whipple, Child's step-grandfather and Mary's husband until his death in 2017, had a history of child molestation.

Robert molested his seven-year-old daughter on multiple occasions in the 1960s and his six-year-old niece on multiple occasions in 1980.As a result of his 1980 conduct, Robert was charged with child molesting, a Class B felony.He confessed to the underlying conduct and accepted a plea agreement involving counseling in lieu of incarceration.

[3] Mary met Robert sometime in 1990 and the two were married on December 6, 1991.For medical reasons, Mary and Robert were unable to have sex during their twenty-six-year marriage.By the time of Mary and Robert's marriage, Mother was an adult and living on her own.Sometime prior to 2009, Mother and Child moved from Indianapolis to Anderson to help with Mary's and Robert's many health issues.During this time, and often at Mary's invitation, Child would visit and stay the night at the Whipples' home.

[4] These visits increased in December 2009, after Child turned thirteen, because she was no longer eligible to continue attending her daycare facility.Through phone calls with Mary, Mother arranged for Child to stay at the Whipples' home while Mother was at work.Mary, who was working in Indianapolis at the time, told Mother that she would be home shortly after Child was dropped off at the home.Mother would drop Child off around 4:30 p.m. and Mary would arrive home around 5:30 or 6:00 p.m. Mary told Mother that it was "all right" for Child to be with Robert until she returned home from work in Indianapolis.Appendix of Appellants, Volume IIIat 50.From December 2009 through January 2010, Robert molested Child on some twelve occasions.Child did not initially report the molestations, however, because Robert threatened to kill Mother.Almost two years later, Child met with a detective and reported the molestations, resulting in Robert's arrest.Following a jury trial in May 2013, Robert was found guilty of two counts of child molesting as Class A felonies, and one count of child molesting as a Class C felony.Robert was sentenced to thirty-five years in the Indiana Department of Correction.

[5] In June 2013, Appellants commenced this action by filing a complaint for damages against Robert and Mary.Count I alleged that Robert committed assault, battery, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.Count II alleged negligence on behalf of Mary.Specifically, Appellants allege in Count II:

12.On said occasions when Plaintiff Child was in the custody, care and control of DefendantMary Whipple, the Defendant had a special responsibility to supervise Plaintiff Child, to keep her from harm and out of danger, to make careful preparations to enable Defendant to be vigilant in ascertaining risks that may occur and to exercise reasonable care for Child's safety and protection.

13.DefendantMary Whipple was, without limitation:

a) Negligent in her supervision of Child as she knew, or should have known, that DefendantRobert Whipple was sexually molesting and assaulting Child, and DefendantMary Whipple failed to warn Child and/or [Mother] of the dangers, or otherwise protect Child from said wrongful acts of her husband, DefendantRobert Whipple, and the harm to result therefrom; and,

b) Negligent and careless in failing to provide a safe environment and/or premises for Plaintiff Child, a child of thirteen (13) years of age, when DefendantMary Whipple accepted the responsibility to care for Child and was entrusted with her safety and well-being.

App. of Appellants, Vol. IIat 18–19.

[6] Mary denied the allegations and eventually filed a motion for summary judgment.¹As evidence in opposition to the motion, Appellants designated the affidavit of Scott Sanderson, a detective with the Anderson Police Department, who had interviewed both Robert and Mary in the course of investigating the molestations.Detective Sanderson's affidavit included the following:

10.I interviewed Robert E. Whipple on February 24, 2012, at the Anderson Police Department, in the course of my investigation of the State of Indiana v. Robert E. Whipple, Cause Number48C06–1204–FA–000655 case; and,

a. During that interview, Robert E. Whipple admitted to molesting two children, other than [Child], in the past; one was his biological daughter, and the other was his niece by marriage.

b. During that interview, Robert E. Whipple informed me that he had told his wife Mary Whipple that he had molested a girl in the past.

c. It was and is my impression that, prior to December 20, 2009, Robert E. Whipple informed Mary Whipple that he molested a child.

d. A true and accurate copy of the Anderson Police Department Advice of Rights and my hand written notes which were contained on the back side of the Advice of Rights are attached hereto as Exhibit B.

e. A true and accurate copy of my type written notes of my February 24, 2012 interview with Robert E. Whipple are attached hereto as Exhibit C.

11.I spoke in person with Mary Whipple on February 24, 2012, while she was at the Anderson Police Department with Robert E. Whipple; and,

a. During that conversation, Mary Whipple stated that a long time ago Robert E. Whipple told her that he had what she referred to as a "small or minor indiscretion" a long time ago.

b. It was and is my impression that the "small or minor indiscretion" that Mary Whipple was referring was child molest.

c. It was and is also my impression that Mary Whipple had knowledge prior to December 20, 2009 that Robert E. Whipple molested at least one (l) child.

d. During that conversation, I spoke with Mary Whipple about the allegations [Child] had made against Robert E. Whipple; and, although she denied the allegations, she advised basically that it was all her fault because she worked all of the time, and Robert E. Whipple was home alone with [Child].

e. A true and accurate copy of my hand written notes which were contained on the back side of the Advice of Rights are attached hereto as Exhibit B.

f. A true and accurate copy of my type written notes of my February 24, 2012 conversation with Mary Whipple are attached hereto as Exhibit C.

App. of Appellants, Vol. IIIat 85–86.

[7]Appellants' designated evidence also included the following testimony from Mary's deposition:

[Question]: If Detective Sanderson indicated that you made a statement to him that you were aware of indiscretions that [Robert] had had, would you have any reason to dispute that?

[Mary]: If I was aware of any indiscretions.I don't know if I—don't know if I would have said that.I wouldn't dispute anything I would have said to him because if I said to him, it's on record, but you have to remember that this is just such a blur, I can't remember specifics.

[Question]: Do you recall using the words indiscretions—or word indiscretion?

[Mary]: That would be a word I would use.

[Question]: And what would you use that word for?

[Mary]: Well, these issues, these sexual issues are most definitely indis—you know, it's wrong.

[Question]: When did you first learn about what you're calling indiscretions?

[Mary]: I would say when I was either with Child Protective Services or Investigator Brooks.And I don't know what dates or years.

[Question]: Detective Brooks would be after 2009.Would CPS be before or after 2009?

[Mary]: It—it ran very close.I don't know.

Id. at 33.After a hearing, the trial court granted Mary's motion for summary judgment.Appellants now appeal.

Discussion and Decision

I.Standard of Review

[8] When reviewing a grant or denial of a motion for summary judgment, our standard of review is the same as it was for the trial court in ruling on the motion initially.Knighten v. E. Chi. Hous. Auth. , 45 N.E.3d 788, 791(Ind.2015).The moving party carries the burden of showing there are no genuine issues of material fact and it is entitled to judgment as a matter of law.Id."A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences."Hughley v. State , 15 N.E.3d 1000, 1003(Ind.2014).Unlike federal practice, the moving party must go beyond merely showing the party carrying the burden of proof lacks evidence on a necessary element and "affirmatively negate an opponent's claim."Id.If the moving party carries Indiana's "more onerous burden," then the non-moving party must present evidence establishing the...