O. L., Appellant,
v.
R. L., Defendant Pro Se,
E. L., Respondent.
Missouri Court of Appeals, Western District.
*472 Neysa L. Day, Kansas City, for appellant.
Michael E. McCausland, Jeffrey W. Deane, Kansas City, for respondent.
Before PAUL M. SPINDEN, Chief Judge, HAROLD L. LOWENSTEIN, ROBERT G. ULRICH, PATRICIA BRECKENRIDGE, JAMES M. SMART, JR., JOSEPH M. ELLIS, EDWIN H. SMITH, VICTOR C. HOWARD, THOMAS H. NEWTON, RONALD R. HOLLIGER, Judge, and GENE R. MARTIN, Senior Judge.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 4, 2001.
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 *473 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.,
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,
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 *474 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 of grandfather. She denies that she is attempting to prove that grandfather is a homosexual (or necessarily any connection between homosexuality and pedophilia), but, rather, that there was sufficient evidence of aberrant or unusual behavior to put grandmother on notice of a general risk of harm to O.L. if grandmother left her alone with her grandfather. Thus, O.L. argues it was for the jury to determine whether grandmother exercised ordinary care. In order to place these arguments in proper context and illustrate the essential fallacy in both, but the propriety of the trial court's ruling in any event, we must first discuss the doctrine of negligent supervision.
Negligent supervision is a variant of the common law tort of negligence. G.E.T. ex rel. T.T. v. Barron,
With regard to negligent supervision of a child, the gravamen of the cause is the supervisor's obligation and ability to control the child and not the supervisor's control over the instrumentality (whether human, mechanical or other) which causes the harm. In this sense, negligent supervision of a minor is the exact opposite of the doctrine of negligent supervision of an adult, which emphasizes the supervisor's (whether employer, entrustor, etc.) right and ability to control the activity of the wrongdoer rather than to control the injured victim. Recognition of this basic principle aids the understanding of cases involving injury to children as an alleged result of negligent supervision and how those cases apply to the facts here at hand.
Was there a Duty of Care?
As with all negligence claims, the threshold question is whether the defendant owed the injured party a duty of care. G.E.T.,
Such relationships (those that impose a duty of care) may arise by operation of law (e.g. master-servant), by agreement, or may be imposed by law in particular fact circumstances. Each of these relationships involves the essential determination as a matter of policy that the claimed supervisor has some duty of care either to protect the one to be supervised from injury or to protect third persons from injuries caused by the one to be supervised. In some instances, as with children, the duty may be to protect the supervised individual from self-imposed injury. E.g., Rogger v. Voyles,
Here, it is undisputed that O.L. was placed in the care of grandmother and grandfather by her parents. As a caretaker of the child, grandmother entered into a relationship with the child that brought with it the duty to supervise the child. Grandmother, however, contends that she could not be subject to a duty unless she knew or should have known that grandfather might molest the child. We disagree with grandmother's contention that foreseeability of sexual molestation is a necessary element to establish the existence of duty. Whether the particular type of injury to a child entrusted to the supervision of another is foreseeable is an inquiry only in determining whether the second element of a negligence claim, breach of duty, is shown. Rogger at 846. Public policy as expressed in the law has already determined that it is foreseeable that a child may be injured by himself or another if not adequately supervised. Thus grandmother's contention that she owed no duty as a matter of law to protect O.L. from sexual abuse absent some indication that such abuse was foreseeable is incorrect. The duty to protect a child entrusted to one's care from sexual abuse or other injury arises merely (from the *476 entrustment of the child to grandmother). A.R.H.,
This distinction was clearly recognized in A.R.H. where the court reversed a summary judgment based solely on the pleadings when the trial court erroneously believed that a grandmother owed no legal duty to protect the child from sexual abuse by her husband, the step-grandfather. Id. at 688. The court in A.R.H. discussed three settings in which a cause of action for negligent supervision of a child had been recognized. See id. at 689 (citing Rogger, supra (grandparents); Smith v. Archbishop, supra (schoolteacher); Swain v. Simon,
The question of duty presents an issue of law and when a court resolves a question of duty it is essentially making a policy determination. The common denominator that must be present is the existence of a relationship between the plaintiff and defendant that the law recognizes as the basis of a duty of care. Rogger, Smith and Swain establish that acceptance of the custody and control of a minor child creates a relationship sufficient to support a duty of care. Whether that duty has been breached depends upon whether a reasonable person would recognize that an incident of the type alleged might occur and that steps should be taken to prevent it.
A.R.H.,
Was there a Breach of the Duty of Care?
Our inquiry does not stop with our finding that grandmother owed a duty of care to O.L. We must still consider whether O.L. and her parents have made a sufficient showing for summary judgment purposes that grandmother breached her duty to supervise O.L. Grandmother's duty was to exercise reasonable or ordinary care in the supervision of O.L. Swain,
Here, grandmother owed a duty to exercise ordinary care in her supervision of O.L. A party breaches a duty of ordinary care otherwise established by the law when a reasonable person could have foreseen that injuries of the type that occurred could or might occur and that steps should be taken to prevent the harm. Rogger,
In discussing the boundaries of breach of duty, Prosser and Keeton have characterized the analysis, as first whether there is an unreasonable risk of harm. Risk, they define as danger which is or should be apparent to the actor. After determining that a risk exists, the conduct is evaluated in terms of its reasonableness. It is recognized that nearly all human acts involve some apparent but unlikely possibility of harm to another. If the risk "is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone." W. PAIGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS, 171 (5th ed.1984). Further, "[a]s the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution." Id. Thus, the consideration of breach of duty will involve an integrated assessment of the degree of risk and severity of potential harm and the likelihood that injury may occur absent reasonable precautions. As the gravity of possible harm from sexual molestation of a young child is high, we recognize that it may require a lesser showing of likelihood than with other types of injuries.
These general principles must be balanced with an examination of the utility of the type of aversive conduct suggested. Id. at 171. This entails a consideration of the burden and benefits of requiring precautions to avoid injury. This stage of the analysis includes additional precautions when the safety of a child is at issue. Indeed, as our courts have observed, ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware. Swain,
The central issue here, however, is the issue of whether it was foreseeable that grandfather posed a hazard to O.L. Foreseeability in this context is a part of the jury's function in determining whether negligence (a breach of duty) has occurred. See 3 HARPER AND JAMES, supra, at § 18.8; G.E.T.,
A closer examination of the situation in G.E.T. illustrates these principles. The defendant child care provider's teen-age son allegedly molested the child his mother was caring for. The incidents allegedly occurred both while the defendant was away from home, leaving G.E.T. and other children alone with her son, and at times when the defendant was present in the home but not in the same room and unaware of what her son was doing. The defendant caregiver argued that the record lacked evidence giving her reason to know of her son's sexual propensities. The court stated: "This argument is flawed because it presumes a child's care provider's absence does not constitute a breach of the duty of ordinary care." Id. The court held the facts regarding the defendant's absence raised the following material questions of fact: (1) whether the defendant regularly left G.E.T. unsupervised with her son, (2) whether her absence amounted to a breach of her duty of ordinary care, and (3) whether she would have learned her son was molesting G.E.T. if she had not breached her duty. Id. These facts were sufficient to defeat summary judgment in G.E.T., Id. at 626. Those facts are not present here, despite the allegations within O.L.'s brief.
Although grandmother did leave O.L. alone with the grandfather, it is unquestioned in the record that grandfather was, with grandmother, a joint caregiver. O.L.'s parents entrusted O.L. to the care of grandfather as well as grandmother. Although it may be a breach of the duty of ordinary care for a caregiver to leave her ward unsupervised or with another person not selected by the parent, it cannot be argued here that grandmother either left O.L. unsupervised or with someone not chosen by and approved by O.L.'s parents. Thus, grandmother's "absence" by either going to her church or going to another room in her house while O.L. was with grandfather cannot, itself, be the basis for a finding of breach of duty. To prevail on the merits, O.L. and her parents must show facts that establish that grandmother should have been on notice of a risk of harm to O.L. when grandmother left the child alone in grandfather's care. Conversely, grandmother will be successful in her motion for summary judgment if it is established, as a matter of law, that she had no notice of the risk grandfather posed to the child.
Was there Notice of Risk of Harm to the Child?
Grandmother claims that she had no notice that should have caused her to appreciate any risk in leaving O.L. with grandfather. O.L. and her parents, in turn, argue that certain incidents concerning grandfather in the 20 years prior to the abuse of O.L. should have made grandmother aware that grandfather might pose a danger to O.L. While our inquiry focuses on what facts were known to grandmother, we must ask whether a reasonable person aware of those facts would have been concerned that O.L. would be placed at risk by being left alone with and supervised by grandfather. Cook v. Smith,
The facts put forward by O.L. and her parents span two decades. The evidence before the circuit court indicated that grandfather had physically abused grandmother approximately 20 years prior to the abuse of O.L. During that incident, he broke grandmother's nose. The record on appeal also reveals that O.L.'s father considered *479 that incident so remote in time that he had no qualms about leaving O.L. in grandfather's care. The evidence put forward by O.L. and her parents also indicates that 15 years prior to the child abuse, grandfather had also subscribed to Playboy Magazine for one year.
The remainder of the record upon which O.L. and her parents rely is rife with speculation that grandfather may have sought homosexual liaisons outside of the marriage.[1] A close examination of the evidence before the trial court reveals that grandmother had little actual knowledge of these events. The first occurrence discussed in the record concerns a classified advertisement of unknown content in an unknown newspaper placed by grandfather in 1995, in which he was possibly seeking sexual liaisons outside of the marriage. There was evidence that grandfather once received a threatening letter arising out of that advertisement from another man seeking to blackmail him. Grandmother testified in her deposition that grandfather told her about the extortion attempt and the advertisement, but she was not told of the exact content of either the letter or the advertisement he had placed. A close reading of the record reveals that grandmother speculated from this information that grandfather was seeking homosexual contacts in the classified advertisement. O.L.'s mother testified that grandmother told her that grandfather had received letters in the mail and found pictures of nude men in his belongings. She also received hang-up phone calls from unknown men.
Appellants also rely upon the conflicting and inconsistent deposition testimony of grandmother concerning a second occurrence between grandfather and another male also apparently in 1995, at a social gathering held at a friend's residence. At first, grandmother testified that she had seen grandfather and the other male engaged *480 in a drunken "peeing contest" off of a deck behind the residence. She later changed her testimony, stating that she had instead seen the two in the woods, standing apart, but she could not determine what they were doing. There is no indication in her testimony or elsewhere in the record that the two had a sexual encounter or that the activities in which the two were engaged had any sexual connotation whatsoever.
O.L. and her parents make no argument that any one of these incidents could have, standing alone, put grandmother on notice of a risk of harm to O.L. from grandfather. Instead, they urge that together the behaviors are "strange" in an older man married for many years. How "strange" behaviors cumulatively amount to constructive notice that the grandfather is a risk or threat to his granddaughter goes unexplained by O.L. and her parents, except for their bare assertion that it is a jury question. Although generally such risk and breach is a fact question, the facts posited must be such that a juror could reasonably make such a conclusion. At least two of the incidents (the striking of grandmother and Playboy subscription) are so remote in time and tenuous in connection as not to aid the appellants' claim. Nor are we convinced that marital infidelity is a fact indicating a risk of harm to the grandchild. To take a contrary view would invite the proposition that it might be unsafe to leave a child alone with anyone who had previously been unfaithful to their spouse. The other incidents also fall into the category of bad taste or poor judgment but again have no logical relevance to some degree of risk to O.L. from being left in the care of her grandfather. Nor in this instance is the whole somehow more significant than its individual parts. Even by O.L. and her parents' view, the behaviors of grandfather are merely "strange." Strange behavior, at least of the type described, cannot, in our view, be a sufficient basis for concluding that grandmother should have foreseen the risk and threat to O.L. and taken steps to have prevented unsupervised contact between the grandfather and grandchild.
In support of their arguments regarding the notice issue, O.L. and her parents rely primarily on G.E.T.,
G.E.T. is somewhat closer to the facts in the present dispute because there the caretaker lacked actual knowledge of abuse. In G.E.T., the defendant provided child care for up to four children at a time, including the plaintiff, G.E.T.
As indicated earlier, G.E.T. is also distinguishable, however, as it involved a sole *481 caretaker situation. Thus, there was a fact question of whether the caretaker was negligent in leaving the child completely unsupervised. There was also a fact question regarding whether the caretaker was truly ignorant of the abuse that occurred in her presence, as some of the abuse occurred while the caretaker was in the same room. Here, both grandparents were joint caretakers, and the child was in the care of at least one of those caretakers at all times. Further, it is undisputed that grandmother had no actual or constructive knowledge of the abuse until O.L. had related the abuse to her parents.
In ruling upon a motion for summary judgment, a trial court must view the evidence in the light most favorable to the non-moving party, granting that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Viewing the evidence before the trial court in the light most favorable to appellants, we hold that the evidence marshaled by appellants is so tenuous that it cannot give rise to a genuine dispute as to whether a reasonable person knew or should have known that grandfather might pose a danger to O.L. if she was left unsupervised in his care, thereby breaching a duty of care. As grandmother successfully established that appellants cannot establish an essential element of their claim, the trial court properly found that she was entitled to judgment as a matter of law. We therefore affirm the trial court's entry of summary judgment in favor of grandmother regarding the negligent supervision claim. Appellants' first point on appeal is denied.
Alleged Limits Placed on Presentation of Evidence or Discovery Concerning Grandfather's Purported Homosexual Conduct
For their second point on appeal, O.L. and her parents argue that the trial court improperly restricted them from presenting additional evidence of grandfather's homosexual conduct. They further argue that the trial court's entry of summary judgment rests upon an apparently implicit finding that there is, as a matter of law, no connection between homosexual conduct and pedophilia. We note that appellants' brief fails to contain any citations to the record where the trial court barred any such evidence. Under such circumstances, we cannot determine or review whether appellants attempted to offer such additional evidence or whether the trial court improperly refused to consider such evidence. Koontz v. Ferber,
With regard to the issue of whether the trial court's entry of summary judgment rests upon a finding that there is no connection between homosexuality and homosexual conduct as a matter of law, we first note that the trial court's entry of summary judgment does not contain such an *482 express finding. That issue is not squarely before us today, as our review of the record reveals that the evidence that grandfather actually engaged in homosexual conduct is ephemeral at best. Thus, regardless of the ultimate disposition of that specific issue, it is irrelevant because appellants have not shown that grandfather actually engaged in homosexual conduct. O.L. and her parents' second point on appeal is denied.
Having found no error in the trial court's grant of summary judgment in favor of grandmother, the judgment entered below in favor of grandmother is hereby affirmed.
PAUL M. SPINDEN, Chief Judge, ROBERT G. ULRICH, PATRICIA BRECKENRIDGE, JAMES M. SMART, JR., JOSEPH M. ELLIS, EDWIN H. SMITH, VICTOR C. HOWARD, THOMAS H. NEWTON, and GENE R. MARTIN, Senior Judge, concur.
HAROLD L. LOWENSTEIN, Judge, dissents in separate opinion.
HAROLD L. LOWENSTEIN, Judge, dissenting.
The question presented in this appeal is whether there were sufficient undisputed facts present to withstand a motion for summary judgment against the plaintiffs in their suit for negligent supervision. Against a backdrop of the applicable scope of review, which holds that summary judgment is an "extreme and drastic remedy," ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp.,
"Ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware." Rogger v. Voyles,
Instructive and dispositive is G.E.T. ex rel. T.T. v. Barron,
The majority tries to distinguish G.E.T. on the basis that in the case at hand, the granddaughter was in "joint custody" of both grandparents. The majority's "joint custody" term is a new concept to Missouri law, coined in the majority's opinion, and therefore bereft of any supportive law. "Joint custody" did not save a grandmother from liability when the step-grandfather molested a granddaughter in A.R.H. v. W.H.S.,
The judgment should be reversed and the cause remanded.
NOTES
Notes
[1] Appellants' arguments could be read as implying a relationship between homosexual conduct and pedophilia. At points, they specifically deny that they are claiming such a connection or that such a relationship is at issue herein. Nevertheless, they contend that the trial court erred because they claim that the summary judgment implicitly rests upon a finding that there is no connection between the homosexuality and pedophilia as a matter of law. These arguments are addressed at greater length below. There was no evidence or expert testimony presented to the trial court regarding this issue. We note, however that the peer-reviewed empirical studies on the topic have not shown any link between homosexual conduct and pedophilia. See, e.g., C. Jenny, et al., Are Children At Risk For Sexual Abuse By Homosexuals?, 94 PEDIATRICS 41-44 (1994)("Community-based studies of adults indicate ... a child's risk of being molested by his or her relative's heterosexual partner is over 100 times greater than by someone who might be identifiable as being homosexual, lesbian or bisexual"); A.N. Groth & H.J. Birnbaum, Adult Sexual Orientation and Attraction to Underage Persons, 7 ARCHIVES OF SEXUAL BEHAVIOR 175-181 (1978). At least one professional psychological organization has taken the official position that there is no connection between the two. See AMERICAN PSYCHOLOGICAL ASSOCIATION, UNDERSTANDING CHILD SEXUAL ABUSE (1999) available at http://www.apa.org/releases/sexabuse.
Looking to such research, some courts which have addressed the issue in recent years have found that there is no relationship between homosexual conduct and propensity towards pedophilia. See, e.g., Equality Found, of Greater Cincinnati, Inc. v. City of Cincinnati,