S.M. v. R.B.

• Decision Date: 16 November 1993
• Docket Number: No. 1,No. 93-204,1,93-204
• Citation: 862 P.2d 1166,261 Mont. 522
• Parties: , 87 Ed. Law Rep. 280 S.M., J.A.M., M.M., J.K.M., and J.N.M., all individuals, Plaintiffs and Appellants, v. R.B., an individual, and Missoula School District, a political subdivision of the State of Montana, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1166

862 P.2d 1166

261 Mont. 522, 87 Ed. Law Rep. 280

S.M., J.A.M., M.M., J.K.M., and J.N.M., all individuals Plaintiffs and Appellants, v. R.B., an individual, and Missoula School District No. 1, a political subdivision of the State of Montana Defendants and Respondents.

No. 93-204.

Supreme Court of Montana.

Submitted on Briefs Aug. 19, 1993.

Decided Nov. 16, 1993.

James P. O'Brien and Randolph J. Stevens, O'Brien Law Office, Missoula, for plaintiffs and appellants.

John O. Mudd, Garlington, Lohn & Robinson, Missoula, for defendants and respondents.

WEBER, Justice.

Plaintiffs appeal the order of the District Court of the Fourth Judicial District, Missoula County, which granted summary judgment to Missoula School District No. 1 (School District) in an action which alleged that a four-year old plaintiff had been sexually assaulted by a teacher's aide.

Defendant R.B. did not appear and defend in this action. R.B.'s default was entered by the clerk of court. The School District initially asserted that the claims against it were barred by the defense of immunity. In the prior appeal of this cause, this Court held that the School District waived immunity to the extent of any liability insurance it had purchased. See S.M. v. R.B. (1991), 248 Mont. 322, 811 P.2d 1295.

We reverse in part and affirm the summary judgment in favor of Missoula School District No. 1.

The plaintiffs present the following issues for review:

1. Did the District Court err when it granted defendant School District's motion for summary judgment?

2. Where default was entered by the clerk of court against defendant R.B. for failure to appear, does the subsequent entry of summary judgment in favor of the School District require the inclusion of R.B. in the judgment of dismissal?

3. Did the District Court abuse its discretion by not holding a separate evidentiary hearing on the admissability of certain hearsay evidence?

Plaintiffs alleged in their complaint that on or about April 16, 1987, defendant R.B. sexually assaulted plaintiff S.M., committing sodomy and attempted rape. R.B. was employed by defendant School District as a teacher's aide at Hawthorne School in Missoula, Montana. Plaintiff S.M. was four years old at the time and was enrolled in the School District's special education pre-school program for children with developmental disabilities. The remaining plaintiffs are S.M.'s parents and siblings.

Plaintiffs claim that S.M. was sexually assaulted while R.B. was under the supervision of the School District. Prior to the filing of this action, the Missoula County Sheriff's Department conducted a criminal investigation of allegations that R.B. had sexually assaulted S.M.; the Sheriff's Department did not charge R.B. with any crime as a result of its investigation.

The allegations against R.B. arose from an injury sustained by S.M. in April 1987. S.M.'s parents became concerned that she had been sexually assaulted when S.M.'s mother noticed a small cut in S.M.'s genital area while bathing her. Two weeks later, again while bathing, S.M.'s mother became alarmed when she noticed that the cut had reopened and also that there was what she termed a "blood blister" near S.M.'s vagina. S.M. suffers from Down's Syndrome and could not effectively communicate the cause of her injury to her parents or others.

S.M.'s mother took S.M. to a physician the following morning. The record submitted to this Court contains portions of deposition testimony from Dr. Kathleen Rogers, the pediatrician who examined S.M. Dr. Rogers concluded from the history given by S.M.'s mother and her examination of S.M. that it was likely that S.M. had been sexually assaulted, although a sexual assault was not conclusively established. Dr. Rogers testified that injuries of the type that S.M. had suffered could result from a number of other factors not related to sexual abuse, including playing with straddle-type toys. S.M.'s mother told Dr. Rogers that S.M. did not play with straddle-type toys. S.M.'s mother also indicated that S.M. had exhibited fears relating to getting on the school bus after the injury as well as other changes in behavior around that time. She also testified to environmental changes in the home, such as S.M.'s refusal to have any adult present with her in the bathroom, including her parents, and the fact that S.M. had been "transitioned" from her crib to a single bed at about that time.

Hawthorne School, where S.M. attended school in the mornings, conducted two pre-school special education classes, one which S.M. attended. Each class had a teacher and at least two aides for six developmentally disabled children. At the time of the injury, R.B. was a teacher's aide in one of these classrooms; however, he was never an aide in S.M.'s classroom.

The special education program provided structured, segmented learning periods for the children, including "gym classes." Plaintiffs contend that R.B. sexually assaulted S.M. during one of the twenty-minute gym classes when he took her to the bathroom adjacent to the gym. Other testimony indicated that, because of their special needs, the children were never taken to rest rooms other than those provided in their own classrooms. Testimony was also presented to demonstrate that R.B. would not have had anything to do with S.M. or any other child who was not a student in the classroom to which he was assigned.

The District Court granted summary judgment to the School District, stating that, although the evidence conflicted, it appeared more likely than not that S.M. was sexually assaulted. However, the court found no material evidence to indicate R.B. was the perpetrator of the assault. The court's judgment provides:

Ordered, adjudged and decreed that the District shall have judgment against the Plaintiffs, that the Plaintiffs shall ... take nothing from their complaint and that complaint be dismissed, and that the District shall recover its costs of suit as provided by law.

Additional facts will be provided as necessary throughout this opinion.

I.

Did the District Court err when it granted defendant School District's motion for summary judgment?

In reviewing a district court's grant or denial of summary judgment, this Court applies the same standard as the district court. Krebs v. Ryan Oldsmobile (1992), 255 Mont. 291, 295, 843 P.2d 312, 314-15. Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden is on the movant to show a complete absence of any genuine issues of fact "deemed material in light of the substantive principles that entitle that party to a judgment as a matter of law." Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. When the movant has met the initial burden, the burden shifts to the party opposing summary judgment to demonstrate a genuine issue of material fact. Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60.

"On a motion for summary judgment the issues presented by the pleadings are not controlling." Brown v. Thornton (1967), 150 Mont. 150, 155, 432 P.2d 386, 389. Because issues of negligence involve questions of duty, breach of duty and proximate cause of injury, they are not ordinarily susceptible to summary judgment and are usually better resolved at trial. Hendrickson v. Pocha (1990), 245 Mont. 217, 219, 799 P.2d 1095, 1097. On the other hand, if the plaintiff has failed to establish evidence of a genuine issue of material fact remaining to be tried in a negligence action, summary judgment is properly granted to the defendant. Thelen v. City of Billings (1989), 238 Mont. 82, 86, 776 P.2d 520, 522. Unsupported speculative and conclusory statements on the part of the plaintiff as to what might have happened do not constitute issues of material fact. Nelson v. Montana Power Co. (1993), 256 Mont. 409, 412, 847 P.2d 284, 286. As our discussion below explains, our independent review of the record has not produced evidence of issues of material fact.

Initially, we note that there is no clear evidence to support the claim that S.M. was sexually assaulted. S.M. was injured in her genital area, but testimony from the pediatrician who examined her indicates that S.M. could have been injured by other means, both innocent and accidental. In reaching her conclusion that S.M. was sexually abused, Dr. Rogers relied not only on physical manifestations of the injury, but also on the information given her by S.M.'s mother, who provided information about S.M.'s activities.

There has been exhaustive discovery in this action, including depositions of teachers, teacher's aides, School District administrative employees, and doctors. It is primarily the testimony of a clinical psychologist who evaluated and treated S.M. that tips the scale toward the District Court's finding that more likely than not S.M. had sustained sexual abuse. The psychologist, Jacelyn Wedell-Monnig, wrote that "[S.M.'s] reported behaviors and statements to me leave no doubt in my mind that the events took place at Hawthorne."

S.M. attended the School District's pre-school program at Hawthorne School from 9:00 a.m. to 11:45 a.m. each weekday. S.M. and five other students were taught in a classroom headed by a supervising teacher and assisted by at least two classroom aides. R.B. worked in another classroom with six other students. Except for a twenty-minute period for gym class once per week, the aides had no access to students from the other classroom. The other classroom aides and teachers were present during the gym class as...