J.A.W. v. Roberts

• Decision Date: 13 January 1994
• Docket Number: No. 30A05-9108-CV-248,30A05-9108-CV-248
• Citation: 627 N.E.2d 802
• Parties: J.A.W., Appellant-Plaintiff, v. Loretta ROBERTS, Joseph F. Bottorff, Gordon Chastain, James Collins, Richard Francis, Fran Gummerson, Sharon Miller, Nicholas Sanders and Mark Wright, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 802

627 N.E.2d 802

J.A.W., Appellant-Plaintiff, v. Loretta ROBERTS, Joseph F. Bottorff, Gordon Chastain, James

Collins, Richard Francis, Fran Gummerson, Sharon

Miller, Nicholas Sanders and Mark

Wright, Appellees-Defendants.

No. 30A05-9108-CV-248.

Court of Appeals of Indiana,

Fifth District.

Jan. 13, 1994.

Stephen Laudig, Linda S. George, Laudig & George, Indianapolis, for appellant-plaintiff.

Karl L. Mulvaney, Patrick A. Elward, Douglas E. Cressler, Nana Quay-Smith, Bingham Summers Welsh & Spilman, Indianapolis, for appellee Richard Francis.

George M. Plews, Karon L. Arnold-Hatleli, Plews & Shadley, Indianapolis, for appellee Gordon Chastain.

Stephen J. Peters, William N. Ivers, Stewart & Irwin, Indianapolis, for appellee Loretta Roberts.

Herbert A. Jensen, Robert L. Trierweiler, Indianapolis, for appellee James Collins.

RUCKER, Judge.

In this summary judgment action we are called upon to determine whether a person may be held civilly liable to the victim of child sexual abuse when he or she knows of the abuse but fails to report it to the authorities.

This case involves the tragic story of now twenty-three-year old J.W. who suffered physical and sexual abuse at the hands of his foster father, Edward Bramblett. J.W. was born April 17, 1970 and after being abandoned by his birth mother, lived with his father and paternal grandmother. After his father's death in 1973, J.W. was adopted by his grandmother. In 1978, at the age of eight, J.W. was removed from the custody of his grandmother, made a ward of the court, and placed into the foster care and custody of Edward and Marguerite Bramblett, husband and wife. Within one month of taking custody of the eight-year-old J.W., Edward Bramblett began sexually molesting him. When J.W. was fourteen years old, Edward Bramblett began permitting other men to sexually molest the teenager. This sexual abuse continued until 1989, when J.W. left the Bramblett household and reported the abuse to authorities. As a result, Edward Bramblett, Waldo Hoffman and Robert Haydock pled guilty and were sentenced for sexual molestation. A fourth man charged with sexually molesting J.W. is presently awaiting trial.

In April 1990, J.W. filed two complaints seeking to recover for injuries he incurred as a result of being subjected to eleven years of child abuse. The first complaint, which is not before us today, includes among others, all of the persons who allegedly molested J.W. The second complaint, which is the subject of this appeal, lists as defendants Loretta Roberts, Joseph Bottorff, Gordon Chastain, James Collins, Richard Francis, Fran Gummerson, Sharon Miller, Nicholas Sanders and Mark Wright. These defendants are not alleged to have molested J.W., nor are they alleged to have participated in the molestations. Rather, J.W.'s complaint alleges these defendants had knowledge of the molestations, materially assisted in covering them up, and failed to report the abuse to local authorities.

Each defendant filed separate answers to the complaint and after extensive discovery defendants Roberts, Chastain, Collins, Francis, Gummerson and Miller, filed motions for summary judgment. Defendant Bottorff filed a motion to dismiss. The trial court granted the motions for summary judgment and, after considering matters outside the pleadings, also granted Bottorff's motion to dismiss. ¹ J.W. now appeals the trial court's judgment raising several issues for our review which we consolidate and rephrase as whether the trial court erred in determining the appellees owed J.W. no common law duty to report to the authorities allegations that J.W. was suffering sexual abuse at the hands of Edward Bramblett. We also address several of the appellees' requests for an award of attorneys fees under Ind. Appellate Rule 15(G).

Before discussing the issues raised in this appeal, we first address a procedural matter. While this appeal was pending J.W. entered into a Covenant Not To Sue, Indemnity Agreement and Structured Settlement with various parties including Appellees Fran Gummerson and Sharon Miller. Thereafter, J.W., Gummerson and Miller filed a stipulation of dismissal with the trial court. On motion by defendant Loretta Roberts, objecting to the stipulation of dismissal, the trial court designated Sharon Miller and Fran Gummerson as "nonparties" for the purpose of certain affirmative defenses asserted by Roberts under the Comparative Fault Act. See Ind.Code Sec. 34-4-33-1 et seq. J.W. then filed with this court a motion to dismiss this appeal as against Gummerson and Miller. Roberts, along with the remaining appellees, filed joint motions in opposition to the proposed dismissal on the grounds that Gummerson and Miller should be designated as nonparties to this appeal for comparative fault purposes.

The appellees cite Bowles v. Tatom (1989), Ind. 546 N.E.2d 1188, in support of their position that Gummerson and Miller should not be dismissed from this appeal. In that case our supreme court addressed the issue of whether the Indiana Comparative Fault Act requires that parties dismissed at the close of the plaintiff's case remain nonparty defendants for the purpose of final determination of fault. The court ultimately determined the dismissed parties did not fall within the statutory definition of "nonparty." However, in so doing the court observed:

In cases where motions at the conclusion of the plaintiff's evidence threaten to remove a party that a remaining defendant claims should remain a party or nonparty for purposes of allocation of fault, such remaining defendant may and should oppose the motion or request that any ruling be delayed until the remaining defendant has had an opportunity to present his evidence. In such event, the nature and purpose of the Indiana Comparative Fault Act, together with the efficient administration of justice, would normally result in a trial court's refusal to prematurely dismiss and discharge such parties. In the present case, defendant Bowles did not object to the dismissals or otherwise assert any claim that the adjacent property owners, city or mayor should remain for purposes of allocation of fault. Because the statutory burden of proof is upon the defendant with respect to the nonparty defense, failure to timely present such an objection waives the defense as to the dismissed parties.

Id. at 1190 (emphasis added). Thus, while Bowles dictates that a failure to object at trial to the dismissal of co-defendants waives the nonparty defense as to the dismissed parties, the case does not stand for the proposition that an appellee may not be dismissed from an appeal on motion by an appellant.

In this case Appellee Roberts made timely objection to the trial court concerning the dismissal of Gummerson and Miller. In response, the trial court designated Gummerson and Miller as nonparties for the purposes of the Act at least as to Roberts' claim of comparative fault. ² Thus, the dismissal of the appeal against Gummerson and Miller in this instance has no bearing on their nonparty status in the trial court for any possible further proceedings. Therefore we grant J.W.'s motion to dismiss the appeal as against Fran Gummerson and Sharon Miller.

I.

J.W. contends the trial court erred in entering summary judgment in favor of appellees because each knew that Edward Bramblett and others were molesting him and "intentionally, negligently and grossly failed to report the sexual molestations to the authorities." Brief of Appellant at 6. When reviewing the grant of a summary judgment motion, our well settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as matter of law. Montgomery County Farm Bureau Co-op. v. Deseret Title Holding Corp. (1987), Ind.App., 513 N.E.2d 193, reh'g denied. We stand in the shoes of the trial court. All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. Even if facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise. Ayres v. Indian Heights Volunteer Fire Dep't, Inc. (1986), Ind., 493 N.E.2d 1229. When a motion for summary judgment is made and supported by the materials contemplated by Indiana Trial Rule 56, the opposing party may not rest on his pleadings but must set forth specific facts using supporting materials contemplated by this rule. Id. If the opposing party fails to meet this burden, summary judgment may be granted.

II.

We first note that of the five appellees whose summary judgments are being reviewed here, only James Collins filed his motion for summary judgment after January 1, 1991, the effective date of the amendment to Trial Rule 56. ³ Thus, we look only to materials designated under Trial Rule 56(C) upon review of the summary judgment granted in favor of James Collins. See Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431. As to the other appellees, namely, Loretta Roberts, Joseph Bottorff, Gordon Chastain, and Richard Francis, we apply the former, less restrictive standard of review. See, e.g., Stephenson v. Ledbetter (1992), Ind., 596 N.E.2d 1369 (applying the pre-1991 version of Trial Rule 56, and resulting method of review, when summary judgment being reviewed was requested and ordered before the effective date of the 1991 amendments). Therefore, the summary judgments granted in favor of Roberts, Bottorff, Chastain, and Francis will be affirmed if sustainable on any theory or basis found in the record.

Appellee James Collins filed an answer to J.W.'s complaint and generally denied the allegations contained therein. In support of his motion for summary judgment, Collins designated portions of the published deposition of J.W. which included J.W.'s answers to interrogatories. Specifically, Collins designated J.W.'s response to an interrogatory...