O.L. v. R.L.

• Decision Date: 16 October 2001
• Docket Number: WD58259
• Parties: O.L., Appellant, v. R.L., Defendant Pro Se; and E.L., Respondent WD58259 Missouri Court of Appeals Western District
• Court: Missouri Court of Appeals

O.L., Appellant v R.L., Defendant Pro Se; and E.L., Respondent

WD58259

Missouri Court of Appeals Western District

10/16/2001

Appeal From: Circuit Court of Clay County, Hon. David Russell, Judge

Counsel for Appellant: Neysa L. Day

Counsel for Respondent: Michael E. McCausland and Jeffrey W. Deane

Opinion Summary:

O.L. and her parents (Appellants) appeal a summary judgment granted by the trial court disposing of their negligent supervision claim against O.L.'s paternal grandmother (E.L.) for failure to protect O.L., a minor, from sexual abuse by the paternal grandfather (R.L.) while the grandchild was being cared for by her grandparents. O.L. and her parents claim that the grandmother should not have left O.L. unsupervised with the grandfather, based on a series of incidents over the prior 20 years that suggested unusual developments in the grandfather's sexual activities and interests. These incidents ranged from physical abuse of the grandmother to allegations that the grandfather had sought homosexual liaisons outside of the marriage.

O.L. and her parents contend the court's ruling was in error because, despite the grandmother's lack of actual knowledge of the abuse, she should have reasonably foreseen that the grandfather would sexually abuse O.L. The grandmother, in turn, argues that she did not have adequate notice that the grandfather posed a danger to O.L., and therefore she did not have any duty to protect O.L. from the grandfather.

Division holds: (1) The grandmother clearly owed a duty of care to O.L., as a caretaker of the child. However, her leaving the child unsupervised with the grandfather would be a breach of that duty only if the grandmother had notice that the grandfather posed a danger to the child.

2) The evidence presented in support of the grandmother's motion for summary judgment satisfied her burden of negating one of the elements of Appellants' case. Specifically, the grandmother established that she had no notice that the grandfather was a danger to O.L. Appellants, in responding to the grandmother's motion, failed to establish a genuine dispute of material fact regarding that essential element.

3) As the grandmother negated an essential element of the Appellant's claim against her, the trial court's grant of summary judgment was proper.

Dissenting opinion by Judge Lowenstein:

This writer would hold that summary judgment is inappropriate where, although the grandmother had no actual knowledge that her husband was sexually molesting her granddaughter, the jury should be called upon to assess whether the grandmother had sufficient notice that the grandfather was harmful so as to establish negligent supervision. Prior Missouri cases on negligent supervision, coupled with the notion that summary judgment is less feasible in any negligence case, establish that reversal is appropriate.

Spinden, CJ, Ulrich, Breckenridge, Smart, Jr., Ellis, Smith, Howard, Newton, JJ., and Martin, SJ., concur. Lowenstein, J., dissents in separate opinion.

Ronald R. Holliger, Judge

O.L. and her parents appeal a judgment summarily granted under Rule 74.01 disposing of their claim against O.L.'s paternal grandmother for failure to protect O.L., a minor, from sexual abuse by the paternal grandfather while the grandchild was being cared for by her grandparents. Finding that the grandmother met her burden of negating an essential element of the claim against her, we find that the entry of summary judgment below was appropriate. For reasons more fully articulated below, we affirm the decision of the trial court.Facts and Procedural History

From September of 1997 to May of 1998, the parents of O.L. left their daughter, now age 9, with the paternal grandparents, R.L. ("grandfather") and E.L. ("grandmother"). E.L. and R.L. cared for O.L. by picking her up from kindergarten and watching her at their residence until her parents could pick her up sometime later. It is undisputed that O.L.'s care was jointly entrusted to both grandparents. There were times when O.L. was in the care of only one of her grandparents, such as when grandmother was working at her church or was sewing in another room. During some of those times when O.L. was within grandfather's care alone, he sexually molested the child. It is uncontested that grandmother did not have actual knowledge of the abuse. During a subsequent criminal prosecution, grandfather pleaded guilty to child molestation and was sentenced to prison.

O.L. and her parents filed suit against both grandfather and grandmother. The claims against grandfather were for sexual battery and intentional infliction of emotional distress. The claim against grandmother was a claim of negligent supervision, alleging that she should not have left O.L. unsupervised with grandfather, based upon a series of incidents over the prior 20 years that suggested unusual developments in grandfather's sexual activities and interests. These incidents ranged from physical abuse of grandmother to allegations that grandfather had sought homosexual liaisons outside of the marriage.

Grandmother sought summary judgment regarding the claim against her. After response and a hearing, the trial court granted summary judgment in her favor on the negligent supervision count of the petition. The remaining claims of the petition were directed at grandfather only, and those claims remain pending in the circuit court. The partial summary judgment entered below was certified as final as to grandmother by the circuit court as it fully disposed of all of the claims against her.

O.L. and her parents challenge the trial court's entry of summary judgment in favor of grandmother on the negligent supervision claim. They contend that the trial court's ruling was in error because, despite grandmother's lack of actual knowledge of the abuse, she should have reasonably foreseen that grandfather would sexually abuse O.L. Grandmother, in turn, argues that she did not have adequate notice that grandfather posed a danger to O.L., and therefore did not have any duty to protect O.L. from grandfather.Standard of Review

Our review of a grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). As such, this court reviews the trial court's determination independently, without deference to that court's conclusions. Id. Summary judgment is "an extreme and drastic remedy" and should be exercised with great care. Id. at 377. In responding to a summary judgment motion, the non-movant must set forth specific facts showing that there is a genuine issue of material fact for trial. Rule 74.04(e). A material fact is one "that is of such legal probative force as would control or determine the outcome of the litigation." Karney v. Wohl, 785 S.W.2d 630, 632 (Mo. App. 1990). We also note that "[i]n negligence cases, summary judgment is not as feasible as in other kinds of cases." Bruner v. City of St. Louis, 857 S.W.2d 329, 332 (Mo. App. 1993). Nevertheless, the entry of summary judgment is appropriate when the moving party establishes that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Amer. Standard Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2000).

When a defending party seeks summary judgment against a pending claim, it may establish its right to summary judgment by presenting facts that negate any of the prima facie elements of the plaintiff's case. Weicht v. Suburban Newspapers of Greater St. Louis, 32 S.W.3d 592, 596 (Mo. App. 2000). If the defendant meets this initial burden, the plaintiff may only defeat the motion by establishing that there is a genuine dispute of material fact regarding one or more of the material facts relied upon by the defendant. Id. In this appeal, O.L. and her parents do not argue that grandmother failed to meet her initial burden upon her summary judgment motion. Instead, the appellants' arguments are confined to the question of whether they had made a sufficient showing of a dispute of material fact, thus establishing that judgment could not be granted to grandmother as a matter of law. Our review, then, will be framed within that context and our discussion confined to whether O.L. and her parents have established that there was a genuine dispute of material fact that prohibited the entry of summary judgment by the trial court.The Tort of Negligent Supervision

O.L. and her parents' first point on appeal contends that the trial court erred in granting summary judgment in favor of grandmother on their negligent supervision claim. The substance of appellants' argument is that summary judgment should have been denied because they had presented evidence concerning a series of incidents involving grandfather that, they argue, should have made grandmother aware that grandfather posed a threat to O.L.

Before we address the specifics of the appellants' first point on appeal, it is necessary to review the general principles of a negligent supervision claim, as the arguments of both parties misapprehend the tort and how that cause of action is framed by the general negligence concepts of duty, breach of duty and proximate cause. Grandmother argues that the issue of duty is a question of law and that O.L. and her parents must present specific evidence that would show grandmother had actual or constructive knowledge of a high degree of risk of pedophilia if O.L. was left alone with grandfather. Grandmother also argues that there is no scientifically demonstrated connection between homosexuality and pedophilia. In contrast, O.L. argues that the issue is breach of duty, which is most generally a question of fact. O.L. argues that she does not need to show that grandmother could have foreseen the specific risk of harm (i.e., sexual abuse), but, rather, that there were sufficient facts to show a likely risk of some harm to the child if left in the supervision...