A.W. v. Marelli

• Docket Number: 20220207-CA
• Decision Date: 19 January 2024
• Citation: 2024 UT App 8
• Parties: A.W., Appellant, v. Millie Marelli, Appellee.
• Court: Utah Court of Appeals

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2024 UT App 8

A.W., Appellant,
v.
Millie Marelli, Appellee.

No. 20220207-CA

Court of Appeals of Utah

January 19, 2024

Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 190902075

Michael W. Young, Alan S. Mouritsen, and Adam Bondy, Attorneys for Appellant

Emily Adams, Freyja Johnson, Hannah K. Leavitt-Howell, and James I. Watts, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Amy J. Oliver concurred.

MORTENSEN, Judge:

¶1 AW^[1] alleges that when, as a teenager, she accused her stepfather of sexual abuse, her mother, Millie Marelli, maintained the abuse did not occur and told AW to never speak of it again. But speak of it AW did-to her biological father, who reported the abuse to authorities. Ultimately, AW was removed from Marelli's

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home, and not long thereafter she cut off all contact with Marelli. When Marelli allegedly persisted over a number of years in making unwelcome contact, AW sued Marelli, claiming negligent and intentional infliction of emotional distress as well as negligent sexual abuse. Marelli moved for summary judgment on all claims, which the district court granted on the basis that AW failed to establish the required quantum of proof on each claim. AW appeals, and we affirm.

BACKGROUND^[2]

¶2 AW alleges that in late 2008 or early 2009-when she was twelve years old-her stepfather (Stepfather) sexually abused her. When Marelli was hospitalized for several days while undergoing a medical procedure, she left AW in the care of Stepfather. According to AW, she became scared of the dark and Stepfather invited her to sleep in his bed. Once in the bed, Stepfather put his hand inside her underwear and began touching her genitals.

¶3 Shortly thereafter, AW disclosed the incident to Marelli. Marelli asked Stepfather what had happened, and he said that he awoke with his hand on AW and immediately withdrew it. He explained to AW that it was an accident and apologized. AW says Marelli and Stepfather told her the abuse never occurred and not to speak of it again. Marelli did not report the incident to authorities. Approximately one week later, AW told her father (Father) about the incident. Father immediately filed a complaint with the Division of Child and Family Services (DCFS) and sought a protective order against Stepfather. DCFS made a supported

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finding that Stepfather presented a credible threat to AW's safety, but DCFS did not find evidence to support a finding that Marelli failed to protect AW. Father was eventually awarded sole legal custody of AW.

¶4 In a sworn declaration, Marelli's neighbor (Neighbor) stated that in late 2007 or early 2008, prior to the abuse AW alleged, she informed Marelli of an incident between her young daughter and Stepfather. Neighbor explained that her daughter came home from playing at Marelli's house with writing and pictures on her buttocks in the handwriting of an adult. When she asked her daughter about it, her daughter said that she and Stepfather were playing a game where the winner wrote on the other person. Neighbor spoke with Marelli about it, and Marelli "became defensive," denying Stepfather had "anything to do with it." Marelli blamed Neighbor's daughter for it, saying she had "offered herself" to Stepfather. Neighbor said her instincts told her to stop allowing her daughter to play at Marelli's house.

¶5 Since losing custody of AW in 2009, Marelli and AW have not seen one another outside of some initial court-ordered therapy sessions and a few brief encounters. AW claims that Marelli's alleged "denial [of the abuse] and victim blaming behavior are significant sources of [her] psychological disorders." Over the past decade, Marelli has continued to contact AW by sending letters, birthday gifts, and Facebook messages. AW claims she has repeatedly expressed her wishes not to have any contact at all. In Facebook messages from 2011, AW responded to Marelli with "STOP TALKING TO ME UNTIL U GET RID OF [STEPFATHER]!!!!!!!" and "STOP IT I WILL BLOCK THIS I AM NOT AFRAID TO SO STOP!!"

¶6 AW submitted many examples of communication she received from Marelli over the course of more than ten years. Those communications included handwritten letters and some photos with messages written on them, such as the following, which we present unedited for grammatical errors:

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• [AW] give your mom a call with [heart drawing] always mom.

• I am sorry that you have forgotten the moments when you had with [Stepfather] to be your dad. I hope someday you will remember with all my heart and soul I loved you and will always love you because you are my girly for eternity.

• We all make mistakes in life, it is what we learn from them is the most important. Forgive yourself, forgive me I am truly sorry for all the many tears & fears you went through without your mothers warmest embrace . . . with love mom.

• [Stepfather] sure misses being your dad [heart drawing] be kind be forgiving be of great courage.

• Oh I miss my little girl that is all grown up. I love every min every hour every dam week month & year of your life. I hope to enjoy and embrace my lovely daughter again to look into your loving eyes and find you again. With love Mom.

• All my children was mislead away from the true. I have been told recently that I am not in reality but you see Reality isn't the truth.

¶7 Some of the photos sent to AW included pictures of both Marelli and Stepfather. Marelli also sent several publications and transcripts of public addresses from her religious leaders covering a wide range of topics.

¶8 AW also asserted that Marelli made two unwanted visits to her. The first occurred on AW's sixteenth birthday, when Marelli went to her school. The second was on her seventeenth birthday, when Marelli went to AW's house.

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¶9 In 2019, AW commenced the present action against Marelli, claiming intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent sexual abuse. Marelli moved for summary judgment on the three claims. Shortly after filing the summary judgment motion, Marelli sent AW a second box of letters, religious publications, and some of AW's old toys. AW argues that even though service of the complaint put Marelli on notice that her conduct caused AW distress, she nonetheless sent AW the box full of additional communication. AW filed a supplemental opposition to the motion, arguing that Marelli sent the communication with knowledge that AW did not want any contact with her. Marelli moved to strike the supplemental opposition, arguing that the Utah Rules of Civil Procedure allow for only supplemental authority not supplemental facts.

¶10 The district court allowed the supplemental opposition "in the interest of justice" and considered it in its decision. The district court granted Marelli's motion for summary judgment on all three of AW's claims. On the IIED claim, the court concluded that Marelli's conduct was not objectively outrageous. The court concluded that the NIED claim failed because AW did not show that Marelli's conduct objectively amounted to the "type of conduct 'especially likely' to cause severe and unmanageable emotional distress." Finally, on the negligent sexual abuse claim, the court concluded there was no support in the record that Stepfather had a history of inappropriate sexual behavior with children of which Marelli was aware or that Marelli's failure to report the alleged abuse harmed AW. AW appeals.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in granting Marelli's summary judgment motion with respect to each of her three claims. We review a grant of summary judgment for correctness, giving "no deference to the district court's legal

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conclusions." Ipsen v. Diamond Tree Experts, Inc., 2020 UT 30, ¶ 7, 466 P.3d 190 (cleaned up).

ANALYSIS

¶12 Summary judgment is appropriate where the moving party shows that "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). We conclude that the district court properly granted summary judgment disposing of all three of AW's claims against Marelli. We address the IIED, NIED, and negligent sexual abuse claims in turn.

I. IIED

¶13 The district court concluded that Marelli's conduct was not outrageous as a matter of law because all Marelli's "voluminous" communications with AW "plainly represent attempts by [Marelli] to reconcile with her daughter." AW contends that the district court erred because it (1) stepped into the role of the jury when determining that all the communications were an attempt to reconcile, (2) failed to consider other evidence of Marelli's outrageous behavior, and (3) applied an unnecessarily restrictive test for outrageous behavior. But we agree with the district court.

¶14 In addition to elements not at issue here,2F^[3] to succeed on a claim for IIED, a plaintiff must show that the defendant's conduct "was outrageous and intolerable in that it offended generally accepted standards of decency and morality."

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Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 37, 56 P.3d 524 (cleaned up). Our supreme court in Retherford v. AT&T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992), explained that "the standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant's actions offend against the generally accepted standards of decency and morality." Id. at 977 (cleaned up). The court clarified that this standard does not "weaken" that adopted by the Restatement (Second) of Torts, which uses the language "beyond all possible bounds of decency." Id. at 977 n.19; see also Restatement (Second) of Torts § 46 cmt. d (Am...