Elmore v. Van Horn

• Decision Date: 31 December 1992
• Docket Number: No. 92-12,92-12
• Citation: 844 P.2d 1078
• Parties: Michael J. ELMORE, as an individual and Michael J. Elmore as next friend and on behalf of Michael John Elmore, minor child, Appellants (Plaintiffs), v. Gailene VAN HORN, as an individual, and Fleming Associates, a private association, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1078

844 P.2d 1078

Michael J. ELMORE, as an individual and Michael J. Elmore as next friend and on behalf of Michael John Elmore, minor child, Appellants (Plaintiffs), v. Gailene VAN HORN, as an individual, and Fleming Associates, a private association, Appellees (Defendants).

No. 92-12.

Supreme Court of Wyoming.

Dec. 31, 1992.

Rehearing Denied Feb. 4, 1993.

Carol Seeger (argued) and Michael A. Maycock of Maycock Law Offices, Gillette, for appellant.

Rebecca A. Lewis (argued) of Hirst & Applegate, Cheyenne, for appellee.

Before THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ., and PATRICK, D.J.

CARDINE, Justice.

This appeal involves a claim for damages against a licensed professional counselor for her evaluation of and conclusion that a minor child had been the victim of sexual abuse. The counselor interviewed the child, reported her suspicions to law enforcement, signed an affidavit, and testified in a subsequent custody hearing. The district court determined that the counselor had immunity for her actions and granted her motion for summary judgment.

We affirm.

Appellants present the following issues for our review:

1. Did the District Court err in finding that as a matter of law the appellee mental health care providers were immune from suit for their negligence and intentional acts in their professional capacities in their diagnosis, evaluation and counseling of the appellant based on case law immunity which grants immunity to witnesses and actions of those witnesses in the course of judicial proceedings because the appellees later testify in a judicial proceeding.

2. Did the District Court err in finding that as a matter of law the appellee mental health care providers were immune from suit for their negligence and intentional acts in their professional capacities in their diagnosis, evaluation and counseling of the appellant based on statutory immunity which provides immunity to those who, with reasonable cause and in good faith, report suspected child abuse.

3. Did the District Court err in finding that the appellees owed no duty to the appellant Michael John Elmore with whom they a had a professional psychological relationship.

4. Did the District Court err in finding that the appellees did not owe a duty to the appellant, Michael J. Elmore, the father.

5. Did the District Court err in finding that the appellants' claims are barred by the statute of limitations.

6. Did the District Court err in finding that the appellee acted within the applicable standards of care, therefore, as a matter of law the appellants' claims must fail.

7. Did the District Court err in finding that as a matter of law the appellants have no claim for intentional infliction of emotional distress under Wyoming Law.

In contrast, appellees present this issue:

Was summary judgment appropriately rendered in favor of defendants/appellees Gay Van Horn and Fleming Associates?

FACTS

Appellee Michael J. Elmore (the father) was divorced from Mary Margaret Ostlund (the mother) in 1985. The original divorce decree provided for the mother to have custody of their minor son (MJ), and allowed the father to have visitation rights.

After returning home from visiting his father in Gillette sometime in November of 1987, MJ allegedly complained of pain in his buttocks area. His mother took him to a physician. The physician determined that there was some redness in the anus area that could have been caused by several things including abuse or even constipation. During the visit on December 15, 1987, the physician recommended psychotherapy for MJ since he was exhibiting "bizarre" behavior by hitting his mother, tearing the exam room apart and acting "totally out of control." The mother took MJ to the physician again in January and March of 1988. The physician again spoke with the mother at the end of April and noted that he felt "very strongly" that MJ should get counseling.

On May 5, 1988, the mother took MJ to Gailene Van Horn, a licensed professional counselor employed by Fleming Associates, a counseling firm. The mother informed Van Horn that she was concerned about MJ's behavioral problems and about potential sexual abuse that might be occurring while MJ was visiting his father in Gillette.

Van Horn began therapy sessions with MJ. Van Horn conducted approximately fourteen sessions with MJ. The dates of the sessions include: May 5, May 9, May 13, May 18, May 25, June 2, June 10, June 24, June 30, July 7, July 21, and August 3, 1988. As the sessions progressed, Van Horn began to have concerns that abuse was indeed occurring. On June 14, 1988, she contacted Mr. Steinberg of DPASS (now Department of Family Services). She asked Mr. Steinberg about the procedure for reporting child abuse when the parents live in different cities. After speaking with Mr. Steinberg, Van Horn recommended to the mother that she should report the potential problem to Laramie County DPASS. Van Horn did not make a report to DPASS herself.

On July 18, 1988, an attorney representing the mother in the custody dispute brought an affidavit to Van Horn's office. The affidavit, which Van Horn signed, stated that "[MJ] has revealed information to me which supports the conclusion that sexual abuse has been occurring to him during visits to his father in Gillette, Wyoming."

As Van Horn began having more concerns about MJ, she contacted Detective Owen from the Cheyenne Police Department and asked Detective Owen to observe a session with MJ. Detective Owen observed the July 21 and August 3, 1988 sessions with MJ at Van Horn's office. According to Van Horn, MJ related specific details of sexual abuse to her during their session. Van Horn understood that Detective Owen was going to refer the matter to Campbell County DPASS for further investigation.

The affidavit that Van Horn signed on July 18, 1988, was used in a show cause After winning custody, the father (appellant) filed this action against Gailene Van Horn and Fleming Associates (appellees) for her handling of the allegations of sexual abuse of MJ. The action was brought by the father, Michael Elmore, and on behalf of MJ, a minor child (his son). Appellants' amended complaint contained the following allegations and counts: 1) negligence in failing to read the affidavit; 2) negligence in diagnosing MJ by failing to obtain sufficient information; 3) intentional infliction of emotional distress; and 4) negligently inflicting severe emotional distress. Appellants also sought punitive damages of $7,635,000.00. Appellees filed an answer to the amended complaint and also filed a motion for summary judgment. Appellees argued that the motion for summary judgment should be granted because the appellees had statutory immunity under W.S. 14-3-205 and W.S. 14-3-209 for reporting child abuse. Appellees also argued, inter alia, that summary judgment should be granted because they had witness immunity regarding the affidavit.

                hearing, and the father was denied visitation with his son until October 10, 1988.  When the court allowed visitation to resume, it could only occur under supervised conditions.  In February 1989, a trial was conducted on the issue of custody.  The district judge who presided over the custody trial concluded that "Gay Van Horn lied to the Court under oath either in her affidavit of July 18, 1988, or today (February 22 [1989].  Because of that and because there is no independent corroboration of her testimony, the Court finds it to be entirely without merit and disregards it entirely."   Van Horn later admitted that she did not read the affidavit as closely as she should have.  After the custody trial, the father was awarded custody of MJ
                

On April 3, 1991, the district court entered an order granting partial summary judgment to appellees. The district court granted summary judgment on all remaining counts on November 18, 1991. Appellants filed a timely notice of appeal.

STANDARD OF REVIEW

We review summary judgments

in the same light as the district court, using the same materials and following the same standards. Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law.

Stalkup v. State Dep't of Envtl. Quality, 838 P.2d 705, 708 (Wyo.1992) (quoting Zmijewski v. Wright, 809 P.2d 280, 282 (Wyo.1991)). See also American Holidays, Inc. v. Foxtail Owners Ass'n, 821 P.2d 577, 578 (Wyo.1991). In addition, "[s]ummary judgment eliminates the expense and burden of a formal trial when only questions of law are involved; however, this court must be persuaded that no material facts are in dispute and the trial court's judgment was correct as a matter of law." Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403, 407 (Wyo.1992) (citing Fiscus v. Atlantic Richfield, 773 P.2d 158 (Wyo.1989)). See also Carroll By and Through Miller v. Wyoming Production Credit Ass'n, 755 P.2d 869, 871 (Wyo.1988). Under the record presented, if this court can uphold summary judgment under any proper legal theory, it will do so. Century Ready-Mix Co. v. Campbell County Sch. Dist., 816 P.2d 795, 799 (Wyo.1991) (citing Reeves v. Boatman, 769 P.2d 917, 918 (Wyo.1989)).

A review of the record indicates that the question of immunity for reporting child abuse was foremost in the district judge's mind when he granted summary judgment. During the final summary judgment hearing, the district court remarked:

I really think that there's a very important policy question here that must be decided by our supreme court before I force this case to trial, and that is that we are always sympathetic with people wrongfully charged. On the other hand, this question of child abuse is so pervasive in our society that there has to be some semblance of immunity, otherwise everybody will be afraid to do anything. And if I were not to grant summary judgment, it would have a chilling effect

on those individuals of the respective communities in the state...