Through Her Legal Guardians, Jacynda G. v. Mosaic
| Decision Date | 26 July 2016 |
| Docket Number | No. A-15-299.,A-15-299. |
| Parties | SAIGEN T., BY AND THROUGH HER LEGAL GUARDIANS, JACYNDA G. AND JAMES G., APPELLANT, v. MOSAIC, APPELLEE. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge. Affirmed.
Brian D. Craig and Dianne D. DeLair, of Disability Rights Nebraska, for appellant.
Stephen G. Olson II and Greg Schreiber, of Engles, Ketcham, Olson & Keith, P.C., for appellee.
Saigen T., by and through her legal guardians, Jacynda G. and James G., appeals from an order of the district court for Hall County granting Mosaic's motion for summary judgment. For the reasons stated below, we affirm.
On August 27, 2012, Saigen brought an action for negligence by and through her legal guardians, Jacynda and James, against Mosaic. Jacynda is Saigen's mother. The petition alleged that Saigen sustained injuries consistent with sexual assault while under Mosaic's supervision, and that such injuries resulted from Mosaic's negligence in its failure to protect Saigen from harm.
Saigen is a 27-year-old adult female who has been diagnosed with Tuberous Sclerosis (TS). This condition causes tumors to grow and calcify within an individual's body. As a result of this illness, Saigen suffers from severe mental retardation and seizures. She is non-verbal, communicating only through facial expressions, sounds, pointing, and other forms of non-verbal communication. Saigen has a history of throwing tantrums when she does not want to go somewhere and screaming when excited or angry. If Saigen does not want to go somewhere, she lies on the ground and goes limp, making it difficult to move her. She also engages in aggressive behavior on occasion, such as crying and throwing herself on the ground. Saigen occasionally picks at sores and loose skin, and has issues with placing her hands in her pants and "digging." She is unable to communicate when she needs to use the restroom. As a result, someone must take her to the toilet, sit her down, and ensure she stays until she goes to the bathroom. Jacynda indicated that circumstances could occur where Saigen may receive bruises as a result of being lifted up or helped on and off the toilet. Saigen takes stool softeners to combat her tendency to become constipated, and on average would have a bowel movement every 2 to 3 days.
As a result of her condition, Saigen requires 24-hour supervision and assistance with daily activities, a service that was provided in part by Mosaic. Mosaic provides services to individuals with disabilities throughout Nebraska, including in-home assistance and resident services in Grand Island. Saigen alternated between residing in a 2-bedroom apartment and with her guardians. Mosaic provided 24-hour assistance to Saigen 3 to 4 days a week when she was in her apartment. During the rest of the week, Saigen would stay with Jacynda and James at their family residence. Mosaic employees assisted Saigen with daily activities including meal preparation, apartment cleaning, laundry, using the toilet, bathing, dressing, and changing her diaper. To facilitate services, Mosaic employees would stay overnight in the second bedroom of Saigen's apartment.
On Friday, September 5, 2008, a Mosaic employee began her shift at Saigen's apartment. The employee stayed overnight and remained at Saigen's residence through part of Sunday, September 7, 2008. Jacynda alleges that the employee was joined by her husband and daughter at the apartment during that weekend, and that they also stayed overnight. On September 7, Jacynda picked up Saigen from the apartment. Jacynda claims that at this time the employee's daughter was inside the apartment and the employee's husband was waiting in his truck in the apartment parking lot. Jacynda proceeded to transport Saigen to the family home.
Upon arrival at the family residence, Jacynda noticed a large circular bruise on Saigen's back along with scratches on her buttocks. Jacynda attempted to place Saigen in a Jacuzzi bath, an activity Saigen typically enjoys. However, Saigen refused to enter the bath. Jacynda then attempted to place Saigen on the toilet, but she refused to sit. While changing Saigen's pull up diaper, Jacynda noticed a swollen purplish protrusion from Saigen's rectum along with redness "down there." In total, Jacynda observed Saigen to have bruising and scratches on her buttocks, vaginal and rectal injuries (including prolapsing/swelling of the rectum), and bruises on her arms. Based on her experience as a nurse, Jacynda suspected that these symptoms were the result of a sexual assault. Jacynda proceeded to call a physician that same day (September 7). Based on Jacynda's description, the physician stated over the phone that the symptoms were consistent with prolapsed thrombosed hemorrhoids. Jacynda claims that Saigen had no history ofhemorrhoids and the characteristics of the injury did not resemble any hemorrhoid she had seen during her years as a nurse. However, the physician convinced her that it could be hemorrhoids, so she proceeded to apply a hemorrhoid cream to Saigen. Saigen was not taken to the hospital that night.
On September 8, 2008, Jacynda returned Saigen to her apartment. Soon thereafter, Jacynda received a phone call from the manager of the apartment complex. The manager informed her that another tenant reported hearing screaming throughout the night and observing men coming and going out of Saigen's apartment during the prior weekend. Jacynda immediately transported Saigen from the apartment to a hospital in Grand Island.
Saigen was placed under general anesthesia at the hospital by a Sexual Assault Nurse Examiner (SANE) for purposes of administering an examination. The exam report indicated a moderate amount of blood contained in the vaginal vault and bruising near Saigen's cervix. Saigen was not menstruating and had not menstruated for the previous 3 to 4 months. The report also showed an abrasion to the clitoris and an abrasion to the anus. Based on these results, the SANE nurse told Jacynda that she was 95- to 98-percent certain that Saigen had been sexually assaulted.
Saigen was also examined for evidence of another person's DNA, semen, or a sexually transmitted disease. The test results were negative, with no sign of another person's DNA, semen, or disease. The exam results reported "unsure" for penetration of or ejaculation in the vagina, anus, and mouth. Saigen's rectal swelling subsided approximately 24 to 48 hours following Jacynda's discovery of the condition on the evening of September 7.
On September 9, 2008, the Grand Island Police Department began a sexual assault investigation. A search of the apartment did not identify any sperm or another person's DNA. A Mosaic employee indicated to the lead investigator that employees would wash Saigen's bedsheets once a week. The lack of evidence at the scene made it difficult for the police to determine whether a sexual assault had occurred. Following the investigation, the Department labeled the case as "open not workable, inactive" due to the "lack of evidence to implicate a specific person(s) in the commission of this alleged sexual assault."
On August 27, 2012, Saigen filed the negligence action against Mosaic. The petition alleged that Saigen was sexually assaulted sometime between September 5 and 7, 2008, while under the care of Mosaic. Jacynda believes that the assault was perpetrated by the Mosaic employee and her husband. During discovery, Saigen did not designate an expert witness to testify regarding the cause, nature, and extent of her alleged injuries.
On October 10, 2014, Mosaic filed a motion for summary judgment. The motion alleged that Saigen's petition failed to state a cause of action against Mosaic and therefore summary judgment was appropriate. Specifically, the motion asserted that the facts presented in Saigen's petition, even when considered in a light most favorable to her, failed to create a genuine issue of material fact with respect to the claimed causes of action. Mosaic contended that Saigen failed to provide material evidence to support the causation and damages elements of her negligence claims. Further, Mosaic asserted that Saigen's claims were based on mere speculation and conjecture regarding the cause of her injuries, and that Saigen could not prove causation withoutpresenting expert testimony because the alleged injury was subjective, rather than objective, in nature.
A hearing was held on the summary judgment motion on January 8, 2015. Mosaic offered numerous exhibits in support of its motion, including the pleadings; discovery responses; and the depositions of Jacynda and Michael Nelson, a criminal investigator with the Grand Island Police Department. Saigen offered various exhibits, including the affidavits/reports of Dale Dangremond, a consultant who investigated Mosaic's procedures, employee training, and investigation into the incident; certain discovery responses; an affidavit from a special education director who worked with Saigen; the SANE reports from the hospital; a supplemental narrative report from the Grand Island Police Department; and excerpts from the depositions of employees of Mosaic. Mosaic objected to a number of Saigen's exhibits on hearsay grounds. The court took the motion and the objections under advisement. The pertinent factual information from these exhibits is set forth in the above background.
On March 16, 2015, the district court entered a lengthy, detailed order which sustained Mosaic's motion for summary judgment and dismissed Saigen's case. The court held that "there was no evidence that would establish by the preponderance of the evidence that a sexual assault has...
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