1

 The Honorable Dennis D. O’Brien, United States Bankruptcy Judge for the

District of Minnesota.

United States Bankruptcy Appellate Panel

FOR THE EIGHTH CIRCUIT

_____________

06-6033MN

_____________

In re: Denise Irene Patch, *

*

Debtor *

 * 

Bryan Blocker, Trustee for the Heirs * Appeal from the United States

and Next-of-Kin of Dillon Bryan * Bankruptcy Court for the 

Blocker, * District of Minnesota

 * 

Plaintiff - Appellee, *

*

v. *

*

Denise Irene Patch, *

*

Defendant - Appellant. *

______________________

Submitted: September 13, 2006

Filed: November 27, 2006 (Corrected January 5, 2007)

______________________

FEDERMAN, MAHONEY, and McDONALD, Bankruptcy Judges

FEDERMAN, Bankruptcy Judge

Denise Irene Patch (“Debtor”) appeals the judgment of the bankruptcy court1

entering summary judgment in favor of Bryan Blocker (“Blocker”) on Blocker’s claim
2

that Debtor’s obligation to him as personal representative of the estate of their three

year old son, Dillon, is excepted from discharge under 11 U.S.C. §523(a)(6). Debtor

also appeals the bankruptcy court’s order denying her motion for summary judgment.

We affirm the bankruptcy court’s decision.

I.

Debtor and Blocker had two children, Breanna and Dillon Blocker. Debtor and

Blocker’s relationship ended in January 2001. Debtor then began dating Steven

McBride in March 2001. Shortly thereafter, McBride moved into Debtor’s apartment.

Both Breanna and Dillon resided with the couple in the apartment.

McBride began physically abusing Dillon shortly after moving into the

apartment. Debtor testified in her deposition that she knew McBride was beating

Dillon. Debtor also testified that at the time McBride moved into the apartment with

her, she had been working at a daycare center where she took Dillon. Debtor had

received a “preschool certificate” from Rasmussen College and, as part of her training

there, was trained in spotting and reporting child abuse. Debtor quit the daycare job

and withdrew Dillon from daycare when the employees at the center began to question

her about Dillon’s bruises. 

Debtor also enrolled Dillon in a speech therapy program with the local school

district because of a speech impediment. In her deposition, however, Debtor conceded

that she removed Dillon from the program because she was concerned that the

therapist would begin questioning the source of Dillon’s bruises. Debtor additionally

testified in her deposition that she asked McBride to stop beating Dillon. Debtor,

however, failed to take any additional steps to stop McBride’s abuse of Dillon. 

The night prior to Dillon’s death, September 17, 2001, Debtor was working the

overnight shift at a local Target store. McBride called Debtor that evening and stated

that Dillon was crying and had hurt his head and penis from a fall. Debtor left her
2

 See State v. Patch, 2003 WL 1481302 (Minn. Ct. App. March 25, 2003). 

3

shift early to come home to check Dillon’s condition. When Debtor arrived home, she

noticed a large bruise on Dillon’s head. She also observed that Dillon was having a

difficult time speaking and breathing. Debtor, however, did not seek medical

treatment for Dillon. Rather, she and McBride put Dillon in their bed with McBride,

and Debtor slept on the couch in the living room.

Debtor checked Dillon the next morning when she awoke, but Dillon was dead.

At the time of his death, he was three years old. The autopsy revealed that Dillon had

died from multiple blunt force injuries to his head. The autopsy report also revealed

that Dillon had suffered acute injuries to virtually every part of his body. One of his

teeth had been knocked out and was found by the coroner in his stomach. 

McBride was convicted of first-degree felony murder for Dillon’s death.

Debtor was originally charged with second-degree murder for Dillon’s death, but she

eventually pled guilty to second-degree manslaughter. 

The trial court imposed a sentence of eight years on Debtor, which is double the

presumed sentence for second-degree manslaughter under Minnesota law. The trial

court enhanced Debtor’s penalty because of the presence of several aggravating

factors, including Dillon’s vulnerability and Debtor’s particular cruelty in failing to

seek medical attention for Dillon on the night prior to his death. The Minnesota Court

of Appeals affirmed the trial court’s enhanced sentence.2

Blocker, as personal representative of Dillon’s estate, filed a wrongful death

action against McBride and Debtor in Minnesota state court on December 26, 2003.

(the “Wrongful Death Action”). Counts II and III of the Wrongful Death Action are

directed against Debtor. Court II alleges that Debtor was negligent in entrusting
3

 The parties intimated at oral argument that the bankruptcy court may have

explained its rationale on the record at the hearing on Debtor’s motion. Neither

party, however, included the transcript of the hearing in their appendix. Therefore,

the transcript of the hearing is not a part of the record on appeal.

4

 A&L Laboratories, Inc. v. Bou-Matic LLC, 429 F.3d 775, 778 (8th Cir.

2005). 

4

McBride with Dillon’s care. Count III contends that Debtor was negligent in failing

to seek medical attention for Dillon on the night he died.

While the Wrongful Death Action was pending, Debtor filed for relief under

Chapter 7 of the Bankruptcy Code on June 17, 2005. Blocker filed this adversary

complaint against Debtor on September 15, 2005. Blocker contends in the adversary

that Debtor’s obligation to Dillon’s estate arising out of his death is excepted from

discharge, under 11 U.S.C. §523(a)(6), for willful and malicious injury. 

Debtor filed a motion for summary judgment, contending that the

uncontroverted evidence showed she merely acted negligently or recklessly with

Dillon, and that she did not act with the intent to injure Dillon as required by §

523(a)(6). Blocker filed a memorandum of law in opposition to Debtor’s motion, as

well as the Debtor’s deposition. The bankruptcy court issued an order denying

Debtor’s motion and granting summary judgment in favor of Blocker sua sponte. The

bankruptcy court did not issue a memorandum opinion explaining its rationale.3

Debtor filed a timely notice of appeal of the bankruptcy court’s order and this appeal

follows.

II.

Our review of the bankruptcy court’s entry of summary judgment is de novo.

4

Summary judgment is appropriate when the evidence, viewed in the light most
5

 Id.; Freyermuth v. Credit Bureau Servs., Inc., 248 F.3d 767, 770 (8th Cir.

2001); Fed. R. Civ. P. 56(c).

6

 Bendet v. Sandoz Pharmaceuticals Corp., 308 F.3d 907, 912 (8th Cir.

2002). 

7

 Acton v. City of Columbia, 436 F.3d 969, 975 n. 5 (8th Cir. 2006). 

5

favorable to the non-moving party, demonstrates that there is no genuine issue of

material fact in dispute so the moving party is entitled to judgment as a matter of law.5

III.

Debtor first posits two procedural arguments on appeal. Debtor first contends

that the bankruptcy court erred when it, sua sponte, entered summary judgment in

favor of Blocker. A trial court may only enter summary judgment sua sponte when

the party against whom the judgment will be entered has been given sufficient notice

and an opportunity to demonstrate why summary judgment should not be entered.6

When a party files a motion for summary judgment, it has put the issue that

there are no disputed material facts before the trial court. The movant has the

opportunity to present all of its evidence and arguments and is on notice that the trial

court may enter judgment against it if the evidence demonstrates that its opponent is

entitled to judgment as a matter of law. Thus, a trial court has the power to grant a

non-moving party summary judgment, even where the nonmovant does not file a

cross-motion for summary judgment.7

Here, Debtor filed a motion for summary judgment, arguing that the summary

judgment record established that her liability to Dillon’s estate did not fall within the

discharge exception contained in §523(a)(6). She had the opportunity to fully present

the undisputed facts and her legal arguments to the bankruptcy court. The bankruptcy
8

 We note that the deposition transcript submitted with Blocker’s

memorandum in opposition to Debtor’s motion for summary judgment was

incomplete. To the extent the missing portions may have contained testimony

favorable to the Debtor, she should have presented them to the bankruptcy court. 

9

 United States v. B.H., 456 F.3d 813, 816-17 (8th Cir. 2006). 

10 Zander v. State, 703 N.W.2d 845, 854 (Minn. Ct. App. 2005). 

6

court, therefore, had the power to sua sponte enter summary judgment in favor of

Blocker.8

 

Debtor’s second procedural argument is that Blocker is collaterally estopped

by his Wrongful Death Action from now asserting that Debtor’s obligation to Dillon’s

estate resulted from a willful and malicious injury to Dillon under §523(a)(6). Debtor

points to the fact that Blocker only asserts two negligence causes of action against her

in the Wrongful Death Action, and no claim for intentional tort. We reject this

argument.

Because Blocker filed the Wrongful Death Action in Minnesota state court,

Minnesota’s collateral estoppel law applies.9

 Under Minnesota law, a party is

collaterally estopped from relitigating an issue if: (1) the issue was identical to the

issue in a prior adjudication; (2) there was a final judgment on the merits in the prior

adjudication; (3) the estopped party was a party or in privity with a party to the prior

adjudication; and (4) the estopped party, or its privy, was given a full and fair

opportunity to be heard on the adjudicated issue.10

Here, Debtor’s filing of her petition stayed Blocker’s prosecution of the

Wrongful Death Action. The record is unclear as to how far the Wrongful Death

Court Action had proceeded, but there was certainly no judgment on the merits.

Accordingly, Blocker is not collaterally estopped by the Wrongful Death Action in

prosecuting his § 523(a)(6) claim.
11 11 U.S.C. § 523(a)(6).

12 Scarborough v. Fischer (In re Scarborough), 171 F.3d 638, 641 (8th Cir.

1999).

13 Id. (citation omitted).

7

IV.

Turning to Debtor’s substantive argument, Debtor first argues that the summary

judgment record does not support the bankruptcy court’s order entering summary

judgment in favor of Blocker. Section 523(a)(6) excepts from discharge any debt that

the debtor incurred “for a willful and malicious injury by the debtor to another

entity.”11

“Willful and malicious are two distinct requirements that [Blocker], as the party

seeking to avoid the discharge of the debt, must prove by a preponderance of the

evidence.”12 “Willfulness” is defined as “headstrong and knowing” conduct and

“malicious” as conduct “targeted at the creditor . . . at least in the sense that the

conduct is certain or almost certain to cause . . . harm.”13 

 As stated above, the parties do not dispute the facts, each conceding that

Debtor knew that Dillon had been a victim of abuse for an extended period of time,

that she continued to leave Dillon with his abuser, that she purposefully hid that abuse

from others by removing Dillon from daycare and speech therapy, and that, on the

night of Dillon’s death, she prevented him from obtaining medical help when he

obviously needed it. While conceding these facts, Debtor argues that they amount to

mere negligence or recklessness; Blocker says they meet the standard for willful and

malicious injury under § 523(a)(6). 
14 Scarborough, 171 F.3d at 643; see also Kawaauhau v. Geiger, 523 U.S.

57, 61 n. 3, 118 S.Ct. 974, 977 n. 3, 140 L.Ed.2d 90 (1998).

15 Geiger, 118 S.Ct. at 977.

16 952 S.W.2d 239 (Mo. 1997).

17 551 N.W.2d 132, 142 (Mich. 1996).

8

“Willfulness” is defined as “deliberate or intentional.”14 In determining

whether a debtor acted willfully, the Supreme Court in Geiger agreed with the Eighth

Circuit that “the (a)(6) formulation triggers in the lawyer’s mind the category of

‘intentional torts,’ as distinguished from negligent or reckless torts.”15 The Debtor

argues that she merely failed to act and, thus, she did not commit an intentional tort.

In other words, boiled down to its essence, the Debtor argues that a passive failure to

act (acts of omission), as opposed to overt conduct (acts of commission), cannot meet

the standard for nondischargeability under § 523(a)(6). We disagree.

At the outset, we disagree with the Debtor’s assertion that her conduct

amounted to mere acts of omission: her continually exposing Dillon to McBride, who

she knew was abusing Dillon, and her removal of Dillon from daycare and speech

therapy for the purpose of preventing people from noticing the bruises and reporting

them, are, in our view, acts of commission. But even assuming that the Debtor took

no affirmative action to cause Dillon’s injuries, and that she merely failed to act to

prevent them or to seek medical attention for them, the failure to act in the face of a

duty to do so can constitute an intentional tort. 

For example, in Gibson v. Brewer,

16 the Missouri Supreme Court held that a

diocese could be liable in intentional tort based upon its failure to supervise a priest.

And, in Travis v. Dreis & Krump Mfg. Co.,

17 the Michigan Supreme Court found an

intentional tort where an employer had actual knowledge that an injury was likely to

occur from a dangerous work condition, but disregarded it. The defendant there had
18 Id.

19 Geiger, 118 S.Ct. at 977.

20 Via Christi Regional Med. Ctr. v. Budig (In re Budig), 240 B.R. 397, 401

(D. Kan. 1999) (listing cases using the substantially certain standard to define the

willful injury element of § 523(a)(6) (citing Texas v. Walker, 142 F.3d 813 (5th Cir.

1998); In re Slosberg, 225 B.R. 9 (Bankr. D. Me. 1998); In re Kidd, 219 B.R. 278

(Bankr. D. Mont. 1998); In re Williams, 233 B.R. 398 (Bankr. N.D. Ohio 1999)).

9

argued that it had not committed an intentional tort and that, therefore, the injured

employee was limited to worker’s compensation coverage. In rejecting that argument,

the Court held that the phrase “deliberate act,” as used in the applicable state statute,

should be interpreted to encompass both commissions and omissions.18

It almost goes without saying that the Debtor had a duty to protect Dillon.

Hence, the fact that she merely failed to act does not, in and of itself, preclude a

finding that she committed an intentional tort, nor does it render § 523(a)(6)

inapplicable.

We recognize that “[i]ntentional torts generally require that the actor intend ‘the

consequences of an act,’ not simply ‘the act itself’” and that nondischargeability

requires a deliberate or intentional injury, not merely a deliberate or intentional act

that leads to injury.19 However, the position urged by the Debtor applies this concept

too strictly in that it requires the Debtor to have actually intended for Dillon to die in

order for the debt resulting from his death to fall within § 523(a)(6). 

Instead, as several post-Geiger courts have held, the willful injury standard is

met if the injury was substantially certain to result from the debtor’s conduct.20 This

is in part because, in affirming the Eighth Circuit’s decision in Geiger, the Supreme

Court approved of the Eighth Circuit’s reliance on the Restatement of Torts, which

provides:
21 Restatement (Second) of Torts § 8A, comment b, p. 15 (1964) (emphasis

added), quoted in In re Geiger, 113 F.3d 848, 852-53 (8th Cir. 1997); In re Budig,

240 B.R. at 400. 

22 In re Budig, 240 B.R. at 400. See also Jafarpour v. Shahrokhi, 266 B.R.

702, 708 (B.A.P. 8th Cir. 2001) (mentioning the Eighth Circuit’s reliance on the

Restatement’s substantially certain language and applying that standard); Via

Christi Regional Medical Ctr. v. Englehart (In re Englehart), 229 F.3d 1163

(Table), 2000 WL 1275614 at *3 (10th Cir. 2000) (unpublished decision) (holding

that the willfulness element turns on the state of mind of the debtor, who must have

wished to cause injury or at least believed it was substantially certain to occur); In

re Clark, 330 B.R. 702, 707 (Bankr. C. D. Ill. 2005) (holding that a showing of

intent under § 523(a)(6) requires “either a showing of subjective intent to injure the

creditor or a showing of a debtor’s subjective knowledge that injury is substantially

certain to result from his acts to establish the intent required in Geiger.”). But see,

e.g., In re Jenkins, 258 B.R. 251 (Bankr. N.D. Ala. 2001) (holding that the debtor

must have specifically intended the injury).

10

Intent is not, however, limited to consequences which are desired. If the

actor knows that the consequences are certain, or substantially certain,

to result from his act, and still goes ahead, he is treated by the laws as

if he had in fact desired to produce the result. As the probability that the

consequences will follow decreases, and becomes less than a substantial

certainty, the actor’s conduct loses the character of intent, and becomes

mere recklessness. . . . As the probability decreases further, and amounts

only to a risk that the result will follow, it becomes ordinary negligence

. . . .21

“The substantial certainty standard is consistent with the holding in Geiger which

requires a showing that the debtor intend the consequence of his act.”22 We agree.

Accordingly, the bankruptcy court was not required to find that the Debtor actually

intended for Dillon to die in order for this debt to fall within § 523(a)(6)’s willfulness

standard; rather, the bankruptcy court was only required to find that she acted, or

failed to act when she had a duty to do so, and that she knew it was substantially

certain Dillon would be harmed as a result. 
11

With that in mind, and viewing the evidence in the light most favorable to the

Debtor, the undisputed facts establish that Dillon’s injuries were substantially certain

to occur as a result of Dillon’s being left with McBride and the failure to seek medical

attention on the night he died.

The next issue as to willfulness is whether the Debtor subjectively knew that

Dillon’s injuries were substantially certain to result from her actions and inactions.

On the issue of the Debtor’s subjective knowledge, the dissenting opinion, infra,

states that, in order to meet the standard of willfulness under § 523(a)(6), Blocker

must demonstrate that Debtor was substantially certain that her conduct would result

in injuries severe enough to Dillon to cause his death. We believe that this view too

narrowly focuses the inquiry on the events of the night that Dillon died. We disagree,

concluding instead that it is appropriate to look at the entire series of events

surrounding the abuse, culminating with the events of that evening. The dissent

properly points out that the issue is her subjective belief, and not the reasonableness

of that belief. We view her deposition statement that she did not know that McBride

was continually abusing Dillon as self-serving and contrary to the other evidence.

There is no dispute, based on her deposition testimony, that she knew McBride was

abusing Dillon, that she asked him to stop, that she left him notes to that effect, and

that she removed Dillon from daycare and speech therapy in order to hide that abuse

from the authorities. To the extent she may have indicated that she did not

comprehend the severity of abuse, the autopsy report showed Dillon had over thirty

enumerated injuries, including, among other things, extensive bruises and contusions

on nearly every part of his body, many of which were consistent with human bite

marks, multiple rib fractures of various ages on both sides of his body, burn marks on

his right arm and hand, and a knocked-out tooth. In sum, the record clearly shows that

the Debtor knowingly and continually placed Dillon in harm’s way over a period of

several months. Under these particular circumstances, we believe the bankruptcy

court properly held that her conduct meets the willfulness element of § 523(a)(6).
23 In re Scarborough, 171 F.3d at 641.

24 Estate of Samantha Reid v. Limmer (In re Limmer), ___ B.R. ____, 2006

WL 1614838 (Bankr. E.D. Mich. May 9, 2006) (quoting Gonzalez v. Moffitt (In re

Moffitt), 252 B.R. 916, 923 (B.A.P. 6th Cir. 2000)).

25 Alverio v. Muhammad (In re Muhammad), 135 B.R. 294, 298 (Bankr.

N.D. Ill. 1991).

26 Id. (citation omitted).

27 Id.

28 In re Limmer, ___ B.R. ____, 2006 WL 1614838.

12

“Malicious” is defined as conduct “targeted at the creditor . . . at least in the

sense that the conduct is certain or almost certain to cause . . . harm.”23 Some courts

have described “malicious” as being “in conscious disregard of one’s duties or without

just cause or excuse.”24 Other courts have said that a debtor’s conduct is malicious “if

he was substantially certain that his actions or inactions would result in injury to [the

plaintiff], but acted or omitted to act in disregard of that knowledge.”25 “A finding of

malice does not require a finding of ill will, but rather a lack of just cause or excuse.”26

If the debtor’s conduct was inexcusable and resulted in an inevitable injury to the

plaintiff, it is malicious.27

Even though the Debtor may not have harbored ill will toward Dillon or wanted

him to die, the Debtor’s conduct was inexcusable and resulted in his inevitable injuries

and death. Because her conduct was undoubtedly certain to cause Dillon harm, it was

targeted at him and was, therefore, malicious under § 523(a)(6). 

The recent case of In re Limmer28 is similar to this one. There, the plaintiff was

the estate of a young woman who had died as the result of being given a drink with

a “date rape” drug, GHB, in it. The debtor had been convicted of, among other things,

accessory after the fact to manslaughter in connection with the woman’s death. The
29 Id. at *4.

13

debtor’s role in the scheme was that he bought the drug, and took it to his apartment

in anticipation of having a party there. The debtor left the party and went to his

bedroom, knowing that three other men at the party would later prepare drinks, in

which they had poured the GHB, for the girls there. Two of the girls became sick.

After the debtor was apprised of the problem, he told the other men to clean up the

mess they had made and sent one of the men to get a carpet cleaner. One of the girls

started having trouble breathing. The debtor asked one of the men to check her pulse,

but would not allow them to call an ambulance. Several hours later, the three men

took the girls to the hospital. The debtor did not go with them, and told them not to

tell the police they had been at his apartment. One of the girls died. 

The bankruptcy court in that case found the debt to the girl’s estate to be

nondischargeable under § 523(a)(6) because, although the debtor did not actually give

the drug to his female guests, he intentionally delayed seeking medical treatment,

knowing that they had ingested GHB. The court found he knew that the consequences

of serious illness or death were substantially certain to result from his actions of

supplying the GHB and then instructing the other defendants to clean up rather than

seek medical attention for the dying girl. Because his actions were without just cause

or excuse, the resulting debt was nondischargeable and the court granted summary

judgment in favor of the plaintiff.29

The same is true here. The Debtor knew Dillon had been a victim of abuse,

continued to expose him to his abuser, hid the abuse from others, and prevented him

from getting medical help when he obviously needed it. She had a duty to protect

Dillon, and she knew that serious injury or death were substantially certain to result

from McBride’s abuse, yet she failed to protect him without just cause or excuse.

Consequently, even viewing the evidence in the light most favorable to the Debtor,

the record establishes that the Debtor willfully and maliciously caused Dillon’s
30 This conclusion is based, not on the Debtor’s guilty plea or the state

court’s doubling of her sentence per se, but is based on the undisputed evidence in

the record as a whole, including, inter alia, the police report from the day Dillon

died, the autopsy report, the portions of the Debtor’s deposition included in the

record, and the state appellate court’s recitation of the facts in its decision

affirming her sentence. 

31 We note that generally, the denial of a motion for summary judgment is an

interlocutory order not subject to review on appeal. Hope v. Klabal, 457 F.3d 784,

789 (8th Cir. 2006). Where, however, a trial court also issues a final order granting

summary judgment in favor of the opposing party, the interlocutory order merges

into the final order and thus is subject to appellate review. U.A.W. v. Randall Div.

of Textron, Inc., 5 F.3d 224, 228 (7th Cir.1993). 

14

injuries and death within the meaning of § 523(a)(6).30 Therefore, the bankruptcy

court did not err in granting summary judgment in Blocker’s favor.

V. 

Debtor also maintains on appeal that the bankruptcy court erred when it denied

her motion for summary judgment.31 As to her motion, the bankruptcy court was

required to view the evidence in the light most favorable to Blocker. In light of the

fact we have already found that the bankruptcy court did not err in granting summary

judgment in favor of Blocker (viewing the evidence in the light most favorable to the

Debtor), it naturally follows that the Debtor did not meet her burden on her own

motion for summary judgment. 

VI.

In conclusion, the evidence in this case is undisputed. Thus, the question is

whether the undisputed evidence satisfied the willful and malicious standard under

Geiger, as opposed to mere negligence or recklessness. Even viewing the evidence

in the light most favorable to Debtor, the record establishes that the Debtor’s conduct
15

was substantially certain to result in Dillon’s injury and death and, therefore, she

willfully and maliciously caused Dillon’s injuries and death within the meaning of §

523(a)(6). Therefore, the bankruptcy court did not err in granting summary judgment

in Blocker’s favor and denying summary judgment in the Debtor’s favor. The

judgment is affirmed. 

McDONALD, Bankruptcy Judge, dissenting

I agree with the majority’s conclusion that a debtor inflicts a willful and

malicious injury on a creditor under 11 U.S.C. §523(a)(6) if she knows with

substantial certainty that her actions will result in that injury. I do not agree, however,

that when reviewing the summary judgment record in the light most favorable to

Debtor that there are no material issues of fact in dispute so that Blocker is entitled to

judgment as a matter of law. I, therefore, respectfully dissent. 

I would begin by noting that the analysis of whether a person commits an

intentional tort must focus on whether the person was substantially certain that her

conduct would result in the injury in question. Valencia v. Reardan-Edwall School

Dist. No. 1, 104 P.3d 734, 736 (Wash. Ct. App. 2005). Thus, because Blocker is

seeking to except from discharge Debtor’s obligation to Dillon’s estate in the

Wrongful Death Action, Blocker must demonstrate that Debtor was substantially

certain that her conduct would result in Dillon’s death. 

I would also note that although neither §523(a)(6), nor the case law on

intentional torts in general, give precise guidance on when a person acts with

substantial certainty. It is clear, however, that substantial certainty is more than acting

with knowledge that one’s conduct creates a high probability of the injury to another,

which is defined as recklessness. In re Boston Reg’l. Med. Cent., 328 F.Supp.2d 130,

164 (D. Mass. 2004); See also RESTATEMENT (SECOND) OF TORTS §500, cmt. f. I

believe that when reviewing Debtor’s deposition testimony in the light most favorable
16

to Debtor, there are material questions of fact as to whether Debtor acted with

substantial certainty or recklessness with respect to Dillon’s death.

There is no doubt, as the majority points out, that the autopsy report indicates

that Dillon had suffered a number of significant past injuries because of McBride’s

abuse of him. There is also no question that Debtor knew that McBride had abused

Dillon in the past and took action to hide that abuse from others. It is also

uncontroverted that Debtor observed that Dillon was having difficulty breathing and

speaking the morning that Dillon died. But the summary judgment record, in my

view, does contain sufficient evidence that creates a material question of fact as to

whether Debtor was substantially certain that leaving Dillon with McBride and failing

to obtain medical help for Dillon would result in Dillon’s death for two reasons. 

First, Debtor repeatedly testified that she did not know that McBride’s abuse

of Dillon was frequent or severe, or at least severe enough to result in Dillon’s death.

The majority takes the position that this portion of Debtor’s deposition testimony

cannot create a material issue of fact because the testimony is self-serving and

contradicted by the autopsy report. I agree that the autopsy report contains objective

evidence that Dillon sustained a number of significant injuries at the hands of

McBride. I believe, however, that Debtor’s deposition fails to establish whether or not

Debtor was subjectively aware of all of the injuries listed in the autopsy report. Also,

assuming that Debtor was aware of those injuries, a material question of fact remains

as to whether Debtor was substantially certain, in a subjective sense, that the abuse

that would result in these types of injuries would be severe enough to cause Dillon’s

death. 

Second, Debtor testified that she believed Dillon was not critically injured

because he was initially responsive to Debtor’s questions and Debtor subjectively

believed he had suffered a concussion, from which he would eventually recover.

Once again, as the majority notes, there is certainly objective evidence in the record
32 I note that because we must focus on Debtor’s subjective belief in

analyzing whether Debtor was substantially certain that her conduct would result in

Dillon’s death, the reasonableness of her belief is not at issue. See Minnesota Fire

& Cas. Co. v. Greenfield, 855 A.2d 854, 871 (Pa. 2004).

17

that establishes that Dillon was in dire need of medical assistance the morning of his

death. I believe, however, that Debtor’s deposition testimony creates a material

question of fact as to whether she was substantially certain that Dillon would die

absent medical treatment.32 

Given that we must view this summary judgment record in the light most

favorable to Debtor, I believe there are material questions of fact as to whether

Debtor’s conduct in leaving Dillon with McBride and failing to obtain medical

assistance for Dillon constitutes substantial certainty or recklessness with respect to

Dillon’s death. Accordingly, I would reverse the bankruptcy court’s entry of

summary judgment in favor of Blocker and remand the case to the bankruptcy court

for a trial.