NO. 93-204

IN THE SUPREm COURT OF THE STATE OF MONTANA

1993

S.M., J.A.M., M.M., J.K.M., and

J.N.M., all individuals,

Plaintiffs and Appellants,

R-B., an individual, and MISSOULA,

SCHOOL DISTRICT NO. 1, a political

subdivision of the State of Montana,

Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James P. O'Brien and Randolph J. Stevens, O'Brien

Law Office, Missoula, Montana

For Respondent:

John 0. Mudd, Garlington, Lohn & Robinson, Missoula,

Montana

Filed:

Submitted on Briefs: August 19, 1993

Decided: November 16, 1993
Justice Fred J. Weber delivered the Opinion of the Court.

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

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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 cou:ld 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

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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 straddletype 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

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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

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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) r 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. Thelan 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. (1992), 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.

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“as 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 cli.nical 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 *V[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

well. Testimony was presented which indicated that the children

were Voileted" only by the aides assisting in their own classroom

and that the special needs children in these two classrooms were

always taken to the rest room adjacent to their own classroom for

such purposes and not to the rest room at one end of the gym. The

individual programs of the pre-school children at Hawthorne School
required that specific classroom aides attend to their needs.

S.M.'s mother testified that S.M.'s particular behavior

indicated the abuse happened at Hawthorne School. For example,

S.M. exhibited an aversion to getting on the bus which took her to

Hawthorne School. Her mother further testified that S.M. wanted to

avoid the bus and Hawthorne School and that she was afraid of

things that reminded her of the school, such as red brick-walled

places, "large gymnasium-type open places which reminded her of

disinfectant odors or musty, earthy odors" and hallways with red or

rust-colored lockers. S.M.'s mother testified that she also had

nightmares and tried to act out what had happened to her by

stuffing Kleenex, washrags and other things used as phallic symbols

in her mouth.

Although S.M. demonstrated an aversion to her school and

exhibited other behavioral changes, there is no evidence in the

record that S.M. made any sort of identification of her abuser.

The District Court viewed a video tape of S.M. being interviewed by

her treating psychologist and stated:

[T]he Court, after viewing the video tape of the child

finds that the child was not competent to pinpoint her

assailant or comprehend what was being asked of her. The

child's verbal and cognitive skills do not appear on the

video tape as well enough developed to persuade the Court

that a knowing and conscious decision was made by the

child identifying R.B. as the individual who hurt her.

Throughout the video, the child is prompted to identify

her alleged assailant, and the child is either

nonresponsive or makes multiple "identifications."

We have viewed the video tape in the course of our review and

affirm the District Court's finding that the video tape does not

substantiate plaintiffs' assertion that S.M. identified R.B. as the

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perpetrator of any sexual assault she may have experienced.

Although we have set forth the facts concerning the alleged sexual

assault and affirmed the court's finding that sexual abuse

occurred, this is not a critical fact for purposes of our review.

Plaintiffs claim that they had identified five locations where

the abuse could have occurred; these five places were their home,

Hawthorne School,, the bus which took S.M. to school, the

babysitter's home and the Co-Teach program at the University of

Montana where S.M. spent her afternoons. S.M.'s mother and her

psychologist eliminated all but Hawthorne School and then

determined the abuse could have been committed only by R.B. in the

gym.

There was no evidence presented that R.B. ever had any contact

with S.M. However, there is evidence in the record to indicate

that S.M.'s parents identified R.B. as a likely perpetrator of

abuse because they had heard about an accusation of abuse made by

a parent in the other pre-school classroom. We conclude that the

evidence presented does not support plaintiffs' conclusions. The

uncontradicted facts support the following argument of the School

District:

In response to the undisputed testimony that R.B.

was never with S.M. even for a minute, much less long

enough to assault her seriously, the Plaintiffs offer

only their suspicions. . . . They do not explain why

other locations . . . were eliminated . . . .

Carrying this theory to the next stage, the

Plaintiffs claim S.H. was assaulted by R.B. in the school

during a gym class. . . . The only time S.M. and R.B.

were even in the same room was for a . . . gym period,

and the only gym class held within the time established

by Dr. Rogers for S.M. 's injury occurred on Monday, April

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27, 1987. . . .The only evidence offered by the

Plaintiffs to support this theory is a statement by

S.M.'s gym teacher.

. . .

The gym teacher had only a vague recollection of one

of his 700 students going to the bathroom and stumbling

in front of him, but even that child showed no sign of

being in any distress. On the other hand, S.M.'s teacher

testified specifically she was in that gym class

supervising S.M. on April 27, 1987; nothing unusual

happened that day: and R.B. had no contact whatsoever

with S.M. . . . This direct testimony of S.M.'s classroom

teacher is uncontradicted.

The record supports the contentions of the School District.

S.M.'s teacher did specifically testify that R.B. had no contact

whatsoever with S.M. and this direct testimony on the part of

S.M.'s teacher is uncontradicted. In addition, we point out that

there is no testimony from any of the adults in the gym class that

S.M. showed any outward signs of injury, pain or trauma.

The School District contends that there is not a shred of

evidence to support plaintiffs ' theory of what occurred. We agree.

We conclude that such conclusory and speculative statements as

those presented by the plaintiffs in this case are not sufficient

to satisfy their burden of demonstrating a genuine issue of

material fact. Secause we have concluded there is a complete

absence of any evidence that R.B. assaulted S-M., it is unnecessary

to address the issue of the School District's negligence in hiring

or in supervising R.B.

We hold the District Court correctly granted summary judgment

in favor of the School District.

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II.

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?

Plaintiffs contend that because R.B. failed to appear, he has

admitted the allegations of sexual assault. No issue as to R.B. is

properly before this Court. No default judgment was entered

against R.B. All that was done with respect to the default of R.B.

was the entry of default by the clerk of court at the plaintiffs'

request. We conclude there is no basis for our entry of a judgment

or order which directly affects R.B. Our modification of the

District Court's judgment reverses that judgment's effect as to

R.B. Proceedings are pending before the District Court regarding

R.B. and the clerk's entry of his default.

We conclude that it is not appropriate to include R.B. in the

judgment of dismissal entered by the District Court. We affirm the

judgment of the District Court as to defendant Missoula School

District No. 1 and modify that judgment to state as follows:

It is ordered, adjudged and decreed that the School

District is 'granted judgment against the plaintiffs, and

that the plaintiffs shall take nothing against the School

District as a result of this action, and that the

complaint of the plaintiffs shall be dismissed as to the

School District. The School District shall be entitled

to recover its costs of suit.

III.

Did the District Court abuse its discretion by not holding a

separate evidentiary hearing on the admissability of certain

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hearsay evidence?

Plaintiffs contend that they requested that the District Court

hold a hearing in accordance with Rule 804(b)(5), M.R.Evid., if it

were inclined to find all of the other evidence supplied by S.M.

insufficient to demonstrate a genuine issue of material fact. In

State v. J.C.E. (1988), 235 Mont. 264, 273, 767 P.2d 309, 315, this

Court ruled that when there is an issue concerning the

admissability of at child's hearsay statement of sexual abuse, such

a hearing is required. The plaintiffs contend that the court erred

when it made the determination that the video tape, as a matter of

law, demonstrated that S-M. was not competent to pinpoint her

assailant or comprehend what was being asked of her, despite the

specific request to hold the hearing.

We decline to rule on this issue as it is not properly before

this Court. The plaintiffs did not file the transcript to

demonstrate that they specifically asked the District Court for an

evidentiary hearing. Further, when the entire transcript is not

included in the record on appeal, Rule 9(b), M.R.App.P., requires

the appellant to notify the respondent of the issues the appellant

intends to raise on appeal so that the respondent can determine

whether a transcript of parts of the proceeding which are not

included in the record will be required. This was not done in this

case.

AFFIRMED in part, REVERSED in part and REMANDED with

instructions to enter judgment as modified herein.

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We Concur:

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