Kostelecky v. Peas in a Pod LLC

Citation2022 MT 195
Decision Date11 October 2022
Docket NumberDA 21-0217
PartiesJULIE KOSTELECKY, an individual, on behalf of herself and her minor child S.M.K.; and JASON KOSTELECKY, an individual, on behalf of himself and his minor child S.M.K., Plaintiffs and Appellants, v. PEAS IN A POD LLC; LACEY ALLEN; ERICA WILLIAMS; JANE AND JOHN DOES 1-10, Defendants and Appellees.
CourtUnited States State Supreme Court of Montana

Submitted on Briefs: February 16, 2022

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-18-1249B Honorable Rienne McElyea, Presiding Judge

For Appellants:

John L. Amsden, Michael G. Black, Anthony F. Jackson, Beck Amsden &Stalpes, PLLC, Bozeman, Montana

For Appellees:

Ross D. Tillman, Zach A. Franz, Boone Karlberg P.C., Missoula Montana


Dirk Sandefur Justice.

¶1 Jason and Julie Kostelecky (Kosteleckys) appeal the April 2021 judgment of the Montana Eighteenth Judicial District Court, Gallatin County, granting defendants Peas in a Pod LLC, Lacey Allen (Allen), and Erica Williams (Williams) summary judgment on Kosteleckys' various negligence-based tort, breach of contract, and Montana Consumer Protection Act (MCPA) claims. We address the following restated issues:

1. Whether the District Court erroneously granted summary judgment to Defendants on the causation element of Kosteleckys' negligence-based tort claims?
2. Whether the District Court erroneously granted partial summary judgment to Defendants on Kosteleckys' asserted breach of contract claim?
3. Whether the District Court erroneously granted partial summary judgment to Defendants on Kosteleckys' asserted MCPA claim?

We affirm.


¶2 In December 2015, defendants Allen and Williams began operating a child day care service (Peas in a Pod Daycare) in Belgrade, Montana, under a provisional Montana Department of Health and Human Services (MDPHHS) license.[1] The license authorized them to provide day care for up to 12 children including six children under the age of two years old. After obtaining full licensure in March 2016, Peas in a Pod soon began running at or near full licensed capacity, with typically 10-12 children in attendance each day.[2]Though Allen and Williams were the only licensed caregivers, they had two unlicensed "helpers"-Williams' adult sister and a 17-year-old high-school student (Madi Acuff) who was the girlfriend of Allen's younger brother. Inter alia, the 17-year-old "helper" assisted in the feeding and care of infant attendees including Kosteleckys' daughter, S.M.K.

¶3 Kosteleckys started their first daughter at Peas in a Pod in Spring 2016. Later that summer, they began pre-paying to reserve an additional space for a newborn expected later that year. Following her birth in September 2016, S.M.K. started part-time day care at Peas in a Pod while Julie Kostelecky (Mother) was still on maternity leave. Upon expiration of Mother's maternity leave, S.M.K. started full-time day care at Peas in a Pod on December 7, 2016.

¶4 According to Allen and Williams, S.M.K. was often "fussy" and sometimes ate very little or not at all. Allen and Williams were thus in frequent contact with Kosteleckys regarding S.M.K. At their request Jason Kostelecky (Father) often came to the day care to feed S.M.K. when she would not accept a bottle from Peas in a Pod personnel.

¶5 On December 22, 2016, Mother received a text message from Allen at 4:44 p.m. advising that S.M.K. had been "really upset all day," "refus[ed] to take a bottle" from Allen or her "helper," and that Allen was "starting to wonder if she is sick because we can't do anything to comfort her." Allen later testified that the child had been "screaming all day" but that she did not contact Mother until late in the day because she "didn't know what to do" to comfort S.M.K.[3] Father picked up S.M.K. around 5:00 p.m. and took her to the Belgrade Urgent Care Clinic based on Kosteleckys' speculation that she might be suffering from an ear infection. At the Urgent Care, Dr. Karen Krutchick examined S.M.K. and noted that she was "well-developed, well-nourished, and in no distress." Upon further examination, the doctor noted, inter alia, that the child's head was "normocephalic and atraumatic," with a "flat" anterior fontanelle. The anterior fontanelle is a small opening in an infant's skull where the skull bones have yet to fully fuse together. Dr. Krutchick later explained that her observations meant that S.M.K.'s head was "of a normal shape," with no "bruises, . . . cuts, scrapes, . . . [or] indication of trauma." She added that the child's "flat" fontanelle was a reassuring sign of no medical problems, such as "swelling of the brain." Kosteleckys thus returned S.M.K. to day care the next day, December 23rd. Later in the day on December 23rd, however, Allen text-messaged Mother and advised that S.M.K. was again "pretty upset" and had thrown up during attempted bottle feeding. Mother picked up S.M.K. that afternoon. Due to the holiday break, she did not return to Peas in a Pod until January 3, 2017.[4] \ ¶6 At S.M.K.'s regularly scheduled four-month wellness check on January 16, 2017, her primary care physician, Dr. Heather Kjerstad, MD, noticed that the child's head circumference had increased significantly since her two-month checkup and thus referred her to a Bozeman pediatrician (Dr. Mark Hodgson, MD) for follow-up examination and imaging. Inter alia, Dr. Kjerstad noted that "Mom reports fussiness," but that S.M.K.'s eating had improved since December 23rd and that the parents were aware of "[n]o known trauma" experienced by S.M.K.

¶7 Upon follow-up examination the next day, Dr. Hodgson noted S.M.K.'s increased cranial circumference and a "full[,] somewhat bulging," and "enlarged" anterior fontanelle. He noted that cranial ultrasound imaging indicated a layer of cerebral fluid between the child's brain and skull that was possibly "benign," but possibly not based on the degree of increase in her cranial circumference. Dr. Hodgson noted the parents were aware of "[n]o known head trauma," but that further "evaluat[ion] by pediatric neurology" was "likely" warranted. Following an exploratory MRI scan performed by a Bozeman radiologist (Dr. Gary Hedlund, DO) on January 18, 2017, S.M.K. was referred to the Primary Children's Hospital in Salt Lake City, Utah, for specialized pediatric neurological evaluation.[5] In the meantime, the child's primary care physician (Dr. Kjerstad) okayed S.M.K. to return to day care on January 19, 2017, which she did until January 24th before her parents took her to Salt Lake City for further examination.

¶8 At the Primary Children's Hospital in Salt Lake City on January 26, 2017, various medical personnel examined and evaluated S.M.K., chiefly a pediatric neurosurgeon, Dr. Douglas Brockmeyer, MD, FAAP.[6] Based on his personal examination of S.M.K.'s "increased head circumference and bulging fontanelles," and his review of her Bozeman MRI and radiology report, Dr. Brockmeyer issued a "Neurosurgery Report" to Dr. Kjerstad diagnosing S.M.K. with "bilateral subdural hematomas of unknown etiology." (Emphasis added.) The next day, January 27th, Dr. Brockmeyer surgically placed "bilateral subdural drains" to alleviate S.M.K.'s intercranial fluid buildup and pressure. However, "[a]fter the drains were removed, [her] subdural fluid collections unfortunately reaccumulated," causing her to become "irritable." Dr. Brockmeyer thus surgically placed a "right frontal subdural [drainage] shunt" in her skull on February 2, 2017, for ongoing drainage and later discharged her to her parents to return home. In his subsequent "Neurosurgery Report" to Dr. Kjerstad upon follow-up on July 6, 2017, Dr. Brockmeyer advised that:

Since her discharge home she has done very well. She has been developing normally and currently has good control of her head and trunk movements per her parents' report. She has not been irritable and has otherwise been a very healthy and happy baby. Her parents currently have no concerns other than a curiosity as to when the shunt can be removed.
I ordered and personally reviewed [a brain] MRI . . . today which demonstrates . . . [that] [t]he bifrontal subdural hematomas have markedly reduced in size [and] [t]here is . . . very minimal mass effect from the residual extra axial fluid collections.... Her fontanelle is flat.... At this time I am happy how she is progressing . . . [but] would recommend[] continuing the subdural [drainage] shunt for at least one year . . . [with reevaluation on additional MRI imaging thereafter].... I counseled her parents there is no need for restriction of activity and that she should be treated as a normal baby . . . [unless further] symptoms intervene.

¶9 In August 2018, upon further MRI imaging and evaluation, Dr. Brockmeyer removed the subdural drainage shunt from S.M.K.'s cranium without complication. After returning to Montana with her parents, S.M.K. made a full recovery without any indication or likelihood of related physical or developmental problems in the future.[7]

¶10 In his subsequent August 2020 deposition testimony, Dr. Brockmeyer affirmed that the 2016 Bozeman MRI indicated that S.M.K. was experiencing "subdural hematomas" of "unknown etiology," consisting of the presence of blood and older blood proteins in a large accumulation of cerebral-spinal fluid between her brain and the interior of her skull. He explained:

Underneath [the skull bone,] that's the dura. And then there's another . . . thin layer that covers the brain called the [pia] arachnoid.... [T]he terms . . . describe the location of the [subject] fluid.... Subdural means that it's . . . underneath the dura but pressing on the brain, directly on the brain.... I'm trying to

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