No. 95-145 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

JOANNR. WERREandJOHND. WERRE,

Plaintiffs, Respondents and Cross-Appellants,

v. MARGARET

R. DAVID, Individually and as Personal Representative of the Estate of KENNETHC. DAVID,

Defendants andAppellants.

APPEALFROM: District Court of the Eleventh Judicial District,

In andfor the County of Flathead, TheHonorable Robert S. Keller, Judge presiding.

COUNSELOFRECORD:

For Appellants: Daniel W.Hileman; Murray &Kaufman, Kalispell, Montana (argued) For Respondents: Joe Bottomly; Bottomly LawOffices, Kalispell, Montana (argued) For Amicus Curiae: Linda Mangel, Attorney at Law, Seattle Washington Joan Jonkel, Attorney at Law, Missoula, Montana (for Northwest Women'sLawCenter) David R. Paoli, Attorney at Law, Missoula, Montana (for Montana Trial Lawyers Association)

Filed: Submitted: November 16, 1995 Decided: March 14, 1996Justice Karla M. Gray delivered the Opinion of the Court.

Margaret R. David (Margaret), individually and as personal representative of the Estate of Kenneth C. David (Estate), appeals from the judgment entered bythe Eleventh Judicial District Court, Flathead County, onajury verdict awarding Joann R. Werre (Joann) andJohn D. Werre (John) damagesin the amount of $250,000. Joann cross-appeals, but requests that we not address the issues she raises unless wereverse andremand for anewtrial asaresult of Margaret's appeal. Weaffirm and, therefore, deemthe cross-appeal withdrawn. Werestate the issues onappeal asfollows: 1. Did the District Court err in denying Margaret's motion for adirected verdict onthe basis that whether Joann's claim was time-barred pursuant to §27-2-216, MCA,wasaquestion of fact for the jury? 2. Did the District Court err in concluding that the tolling provisions of §27-2-216, MCA,include negligence claims based on intentional sexual abuse? 3. Did the District Court abuse its discretion in denying Margaret's motion to edit Dr. Dennis Malinak's deposition testimony to exclude reference to his conversation with Margaret? 4. Did the District Court abuse its discretion in excluding certain evidence regarding Joann andJohn's marital problems? 5. Did the District Court err in denying Margaret's motion for a directed verdict on the negligence claim against her individually? 26. Did the District Court err in instructing the jury on

causation? 7. Did the District Court abuse its discretion in denying Margaret's motion for anewtrial? Margaret married BenCarkuff (Ben) in 1945 andthey hadfour children, including Joann. WhenJoann was approximately six to eight years old, shewassexually abusedbyBen's brother, whomshe called Uncle Francis, during weekly visits to Ben's parents' home. Theabuse byUncle Francis stopped in 1957whenthe family's weekly visits to Joann's paternal grandparents' homeceased after Margaret divorced Ben. Margaret married Kenneth David (Kenneth) in 1957and they andMargaret's children, including Joann, movedfrom Minnesota to Kalispell, Montana. WhenJoann was approximately twelve to fourteen years old, Margaret asked Kenneth to "give" Joann sex education. Shetook all of her children except Joann out for ice cream so that Kenneth could be alone with Joann. Kenneth had sexual intercourse with Joann onthis occasion. After that incident, Kenneth also fondled Joann several times. Joann married Johnwhenshewasseventeen years old. Shedid not tell anyone about the abuse by either her uncle or Kenneth until 1989, whenshe told John about Uncle Francis' abuse. John recommended that Joann see Carol Lee (Lee), a clinical social worker, to discuss the abuse. Lee began counseling Joann in Mayof 1989. Sheoriginally diagnosed Joann as having an adjustment disorder with mixed

3emotional features. In November of 1989, Lee further diagnosed

Joann with post-traumatic stress disorder. She concluded that Joann's mental disorders were caused by both the abuse by Uncle Francis andthe abuse by Kenneth and, further, that either abuse could have caused Joann's mental disorders. Joann confronted Margaret and Kenneth regarding the sexual abuse by Kenneth and Uncle Francis in November of 1989. Kenneth did not deny that hesexually abused Joann. Kenneth died in July of 1990. In December of 1989, Joann becameaninpatient at Glacier View Hospital (Glacier View), where she remained for approximately twenty-two days. During that time, Dr. Dennis Malinak, a psychiatrist, treated her. Dr. Malinak diagnosed Joann with a borderline personality disorder and an adjustment disorder; he later agreed with Lee's diagnosis of post-traumatic stress disorder. Dr. Malinak opined that both the abuse byUncle Francis andthe abuse by Kenneth were causal factors in Joann's disorders and, further, that Kenneth's abuse was a major cause of those disorders. OnSeptember 3, 1992, Joann filed acomplaint against Margaret individually andas personal representative of Kenneth's Estate. As subsequently refined in the Pretrial Order, Joann alleged the intentional tort of sexual abuse against Kenneth and intentional or, alternatively, negligent conduct by Margaret in aiding Kenneth's sexual abuse andfailing to usedue care to protect her. During the jury trial, the District Court directed averdict in

4Margaret's favor on Joann's intentional tort claim against her

individually. Thejury found that Kenneth sexually abused Joann and that Margaret was negligent; it awarded $250,000 in damages. Margaret appeals in both her individual capacity and her capacity

aspersonal representative of Kenneth's Estate. Additional facts

are set forth below where necessary for our resolution of the issues. 1. Did the District Court err in denying Margaret's motion for adirected verdict onthe basis that whether Joann's claim was time-barred pursuant to §27-2-216, MCA,wasaquestion of fact for the jury? Joann filed this action on September 3, 1992. Margaret contends that the undisputed evidence establishes that Joann discovered that her injuries were caused by the childhood sexual abuse by Kenneth prior to September of 1989. Onthat basis, she argues that the District Court wasrequired to direct averdict in her favor asamatter of law under §27-2-216, MCA. Adirected verdict is proper only when there is a complete absence of any evidence which would justify submitting anissue to

ajury, and all inferences which can be drawn from the evidence must beconsidered in alight most favorable to the opposing party. Pierce v. ALSCArchitects, P.S. (1995), 270Mont. 97, 107, 890P.2d 1254, 1260 (citing Jacques v. Montana Nat'1 Guard (1982), 199Mont. 493, 649 P.2d 1319). Adistrict court must deny amotion for a directed verdict if substantial conflicts in the evidence exist. FoxGrain andCattle Co.v. Maxwell (1994), 267Mont. 528, 533, 885 P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass'n (1992), 253Mont. 221, 833P.2d 1587). 5Section 27-2-216(l) (b), MCA,provides, in relevant part:

(1) Anaction based on intentional conduct brought by a person for recovery of damagesfor injury suffered as a result of childhood sexual abuse must be commencednot later than:

. . .(b) 3 years after the plaintiff discovers or reasonably should have discovered that the injury was caused bythe act of childhood sexual abuse. In order for the District Court to have properly denied Margaret's motion for a directed verdict in this regard, there must be evidence of record that Joann did not discover the causal connection between Kenneth's abuse andher mental disorders until after September 3, 1989. It is true, as Margaret contends, that the record contains evidence indicating that Joann connected Kenneth's abuse with her psychological problems prior to September 3, 1989. On crossexamination Joann testified that shedid not tell amale therapist shesawin 1970about Kenneth's sexual abusebecause shedistrusted

men as a result of that abuse. Joann also conceded on crossexamination that, whenshefirst sawLee in Mayof 1989, shemade

someconnection between her need for counseling and her childhood sexual abuse. However, Joannpresented evidence indicating that shedid not discover that her mental disorders were connected to Kenneth's abuse until after September 3, 1989. Shetestified that, although shewasalways aware that shehadbeensexually abused, shedid not connect her abusewith her psychological problems until Novemberof 1989. Leeopined that Joann began to connect the sexual abuse by 6Kenneth with her mental disorders after sheconfronted Margaret and

Kenneth in November of 1989. Dr. Malinak testified that, when Joannwashospitalized at Glacier View in December of 1989, shewas in the process of connecting her sexual abuse with her mental disorders. Moreover, Herman Androes (Androes), a clinical psychologist andtherapist testifying onbehalf of Margaret andthe Estate, conceded on cross-examination that he agreed with the conclusions of LeeandDr. Malinak in this regard. This review of the record demonstrates the substantial conflicts in the evidence regarding whenJoann discovered that her injuries were caused bythe childhood sexual abusesheexperienced, for purposes of applying the time bar contained in §27-2-216, MCA. It is within the province of the jury to resolve conflicts in the evidence. Barthule v. Karman (1994), 268Mont. 477, 485, 886P.2d 971, 976. Therefore, based onthe record before us, weconclude that the time at which Joann discovered a connection between Kenneth's sexual abuse andher mental disorders wasaquestion of fact for the jury. Accordingly, wehold that the District Court did not err in denying Margaret's motion for adirected verdict on the basis of §27-2-216(1)(b), MCA. 2. Did the District Court err in concluding that the tolling provisions of §27-2-216, MCA,include negligence claims based onintentional sexual abuse? Margaret argues that the plain language of §27-2-216, MCA, refers only to intentional conduct and, therefore, the statute does not toll the general three-year statute of limitations for negligence actions. Alternatively, she argues that, if the

7statutory language is ambiguous, the legislative history of §27-2-

216, MCA, establishes the legislature's intent to limit the applicability of the tolling provision to actions against perpetrators of sexual abuse against minors. Under either approach, Margaret contends that §27-2-216, MCA, includes only claims against perpetrators of intentional sexual abuse andthat, because Joann's remaining claim against her individually alleges only that shewasnegligent, the claim cannot bemaintained under §27-2-216, MCA. The District Court concluded that 527-2-216, MCA, includes negligence claims which are basedonintentional conduct andthat, if the Montana legislature had intended to limit its applicability solely to actions against perpetrators of sexual abuse, it could have done so specifically. We review a district court's conclusions of law to determine if the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271Mont. 459, 469, 898P.2d 680, 686 (citing Steer, Inc.

v. Dep't of Revenue (1990), 245Mont. 470, 474-75, 803 P.2d 601, 603). In interpreting astatute, welook first to the plain meaning of the words it contains. Clarke v. Massey (1995), 271Mont. 412, 416, 897 P.2d 1085, 1088. Where the language is clear and unambiguous, the statute speaks for itself andwewill not resort to other meansof interpretation. Clarke, 897P.2d at 1088. ItIn the search for plain meaning, 'the language usedmust bereasonably and logically interpreted, giving words their usual and ordinary

8meaning.'" Gaubv. Milbank Ins. Co. (1986), 220 Mont. 424, 427,

715P.2d 443, 445 (quoting In re Matter of McCabe(1975), 168Mont. 334, 339, 544 P.2d 825, 828). Section 27-2-216, MCA, addresses the time within which a person who has suffered injury as a result of childhood sexual abuse must bring "[aIn acti onbased on intentional conduct

. . 11Themeaning of "based on" is determinative of whether §27-2- 216, MCA,includes negligence claims. Margaret does not advance a definition for the words "based on," but her unsupported position appears to bethat "based on" means "equal to." Wepreviously have determined the ordinary meaning of the statutory language "based upon." State ex rel. Snidow et al. v. State Bd. of Equalization et al. (1933), 93Mont. 19, 17P.2d 68. State Bd. of Euualization involved astatute under which the value of metals for license tax purposes was to be determined. The statute stated, in relevant part, that "the gross value of the [metal]

. . shall bedetermined bytaking the market value of all merchantable metals or mineral products

. . . based upon the average quotations

. . . in the City of NewYork

. . during the calendar year immediately preceding." State Bd. of Euualization, 17 P.2d at 71 (emphasis added). Essentially arguing that "based upon" means "equal to," Snidow contended that the tax should have been determined by merely multiplying the NewYork price of the metals bythe number of pounds or ounces of metal produced. State Bd. of Eaualization, 17 P.2d at 69. The State Board of Equalization contended that the NewYork prices should beused as

9a base for determining Montana values, essentially arguing that

"based upon" meansastarting point for determination. State Bd. of Eaualization, 17 P.2d at 70. Westated that "the ordinarily accepted meaning of the words 'based upon' is an initial or starting point

. . . .'I State Bd. of Eaualization, 17P.2d at 73. Moreover, wehave indicated that "on" and "upon" are synonymous and, thus, interchangeable. Northern Pac. R.R., Co. v. GasDev. Co. (1936), 103 Mont. 214, 218, 62 P.2d 204, 205. Thus, we rejected in State Bd. of Eaualization an argument similar to Margaret's in this case regarding the plain meaning of "based on." Our determination in State Bd. of Eaualization regarding the ordinary and accepted meaning of "based upon" is consistent with the dictionary definition of "base." "Base" is defined as "that

onwhich something rests or stands: FOUNDATION

. . the point or line from which astart is madein anaction or undertaking

. . .'I WEBSTER's THIRD NEWINTERNATIONAL DICTIONARY, 180 (1971) Accordingly,

weconclude that the plain meaning of "based on" is an initial or starting point or foundation. The legislature affirmatively chose to use the words "based on" in §27-2-216, MCA. Our role in interpreting statutes is "to ascertain anddeclare what is in terms or in substance contained therein, not

. . .to omit what has been inserted." Section l-2- 101, MCA. We conclude that, under the plain meaning of the language used in § 27-2-216, MCA, an action is "based on intentional conduct" if intentional sexual abuse is the starting point or foundation for the claim.

10Here, Joann's negligence claim against Margaret would not

exist absent the intentional sexual abuse by Kenneth; stated differently, Kenneth's intentional sexual abuse of Joann is the starting point or foundation for Joann's negligence claim against Margaret. Thus, Joann's negligence claim against Margaret is, under the plain meaning of the language in 527-2-216, MCA,"based

onintentional conduct." Toaccept Margaret's argument that §27- 2-216, MCA, includes only claims for intentional conduct would require us to disregard the express language "based on" contained therein, thus exceeding our judicial role in interpreting statutes. Section l-2-101, MCA. Since the intentional sexual abuse by Kenneth is the foundation for Joann's negligence claim against Margaret, Joann's claim is within the purview of §27-2-216, MCA. Moreover, §27-2-216, MCA,cannot be read in avacuum. We must harmonize statutes relating to the samesubject matter, giving effect to each. Crist v. Segna (1981), 191 Mont. 210, 212, 622 P.2d 1028, 1029 (citing State ex rel. City of Townsend v. D.A. Davidson, Inc. (1975), 166Mont. 104, 531P.2d 370). Section 27-2-204, MCA,provides the limitations periods for initiating both negligence and intentional tort actions. It provides, in pertinent part: (1) Except as provided in 27-2-216 and 27-2-217, the period prescribed for the commencementof anaction upon aliability not founded uponaninstrument in writing is within 3years.

. .(3) Theperiod prescribed for the commencement of an action for libel, slander, assault, battery, false imprisonment, or seduction is within 2years. 11Section 27-z-204, MCA(emphasis added). Subsection (1) of this

statute, which encompasses negligence actions, specifically crossreferences the tolling provisions of §27-2-216, MCA,and thereby engrafts the §27-2-216, MCA,tolling provision onto the general statute of limitations for negligence actions. To accept Margaret's contention that §27-2-216, MCA, is limited to claims against perpetrators of sexual abusewould require usto contravene

our role in interpreting statutes byomitting from §27-2-204(l), MCA,the specific cross-reference enacted bythe legislature. See §l-2-101, MCA. Thus, reading these statutes together buttresses our interpretation of the plain meaning of the language used in §27-2- 216, MCA,on a stand-alone basis. Weconclude that §27-2-216, MCA,is plain, unambiguous, direct andcertain andthat it is not limited to intentional tort actions against perpetrators of childhood sexual abuse. Accordingly, wehold that the District Court did not err in concluding that the tolling provisions of § 27-2-216, MCA, include negligence claims based on intentional sexual abuse. 3. Did the District Court abuse its discretion in denying Margaret's motion to edit Dr. Malinak's deposition testimony to exclude reference to his conversation with Margaret? In September of 1994, Joann video-taped Dr. Malinak's deposition pursuant to anotice indicating the potential useof the deposition at trial as perpetuated testimony. During the deposition, Dr. Malinak testified regarding a telephone conversation hehadwith Margaret while Joann washospitalized at 12Glacier View. Specifically, hestated that he"sense[dl [Margaret]

wasaware that [the sexual abuse1wasgoing to happen and, in fact, that's why she took the kids." Margaret did not object to Dr. Malinak's testimony during the deposition. Approximately two weeks later, Margaret filed "Defendant's Objections to Testimony of Dr. Dennis Malinak &Motion for Order to Edit Deposition." She contended that Joann's questions were leading, called for aconclusion andcalled for speculation. Joann responded that, had Margaret objected during the deposition, she could have established asufficient foundation for Dr. Malinak's testimony. The District Court denied Margaret's motion to edit Dr. Malinak's testimony. Wereview a district court's evidentiary ruling to determine if the court abused its discretion. In the Matter of the Seizure of $23,691.00 in United States Currency (Mont. 1995), 905 P.2d 148, 152, 52 St.Rep. 1063, 1065 (citing State v. Passama (1993), 261Mont. 338, 341, 863P.2d 378, 380). Margaret argues generally on appeal that Dr. Malinak's impressions about whether she knew Kenneth would sexually abuse Joann constitute aninadmissible conclusion asto what was in her mind. Aswepreviously noted, however, Margaret did not object to Dr. Malinak's testimony during his deposition. Rule 32(d)(3)(B), M.R.Civ.P., addresses the effect of errors and irregularities in depositions. It provides that anyerror "in the form of the questions or answers,

. . .anderrors of any kind which might beobviated, removed, or cured if promptly presented,

13are waived unless reasonable objection thereto is made at the

taking of the deposition." Rule 32(d) (3)(B), M.R.Civ.P. Margaret's objections to questions posed and to Dr. Malinak's responses were not madeduring the deposition as required by Rule 32(d) (3)(B), M.R.Civ.P. Weconclude, therefore, that Margaret waived any errors regarding the admissibility of portions of Dr. Malinak's testimony. Wehold that the District Court did not abuse its discretion in denying Margaret's motion to edit Dr. Malinak's deposition testimony. 4. Did the District Court abuse its discretion in excluding certain evidence regarding Joann and John's marital problems? Prior to trial, Joann filed a motion in limine to exclude evidence of the marital problems she andJohn experienced onthe basis that it wasirrelevant andinflammatory. Margaret responded that the evidence wasrelevant to issues of causation anddamages andthat her case would beprejudiced by excluding it. The District Court granted Joann's motion in limine with regard to evidence that John had an extramarital affair and that Joann hadagunto protect herself from Johnwhile staying with her brother prior to her admission to Glacier View. However, the court refused to exclude evidence about whether the marital discord ona stand-alone basis--rather than the sexual abuse--caused, or substantially contributed to, Joann's counseling bills. Margaret contends that the District Court erred in excluding evidence of Joann's marital discord except onalimited basis. She argues that the court's exclusion of such evidence precluded the

14jU~Y from determining that Joann's counseling bills were

attributable to her marital discord rather than to the sexual abuse. Adistrict court has wide discretion in determining the admissibility of evidence; wereview atrial court's exclusion of evidence to determine if the court abused its discretion. Jacobsen et al. v. State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695 (citations omitted). Relevant evidence is generally admissible at trial. Rule 402, M.R.Evid. "Relevant evidence meansevidence having anytendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, M.R.Evid. Wehave stated that the test of relevance is "whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered." State v. Fitzpatrick (1980), 186Mont. 187, 207, 606P.2d 1343, 1354. Here, Margaret claimed that the excluded evidence--that John had an extramarital affair and that Joann had a gun to protect herself from John--was relevant to the issues of causation and damages. Margaret was attempting to prove through evidence of Joann andJohn's marital problems that the marital problems were at least acause of Joann's mental disorders. Theexcluded evidence arguably has somevalue in proving that Joann's marital problems contributed to or caused her injuries and in determining her damages. There is an exception, however, to the admissibility of

15relevant evidence. "Although relevant, evidence maybeexcluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

11

. . . Rule 403, M.R.Evid. In Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108, we held that it wasanabuseof discretion to admit evidence regarding the claimant's poor homeenvironment onthe basis that, although the evidence wasrelevant under Rule 402, M.R.Evid., noevidence at trial established a medical connection between poor home environment andthe claimant's symptoms. Kimes, 705 P.2d at 110. In Kimes, expert witnesses indicated that poor homeenvironment may cause symptoms such as those exhibited by the claimant; however, the testimony wasnot sufficient to establish amedical connection. Kimes, 705 P.2d at 110. Similarly, in this case, even Margaret's ownexpert witness did not testify that Joann's marital problems caused her mental disorders. Androes admitted on cross-examination that, while Joann's marital discord caused her some stress, it was not a significant factor in causing her mental disorders. Moreover, since the marital problems were not asignificant causal factor, they could not significantly impact onthe question of damages. We conclude that, under these facts, it was within the District Court's discretion to exclude the evidence that John had an extramarital affair and that Joann had a gun to protect herself from John prior to her admission to Glacier Viewasboth misleading and more prejudicial than probative under Rule 403, M.R.Evid.

16Accordingly, we hold that the District Court did not abuse its

discretion in excluding this particular evidence regarding Joann's marital problems. Finally, Margaret's contention that she was precluded from establishing abasis uponwhich the jury could find that marital discord, rather than sexual abuse, caused Joann's mental disorders anddamagesignores the record. Oncross-examination, Dr. Malinak testified that aconsiderable amount of Joann's therapy at Glacier View centered around her and John's marital problems. Lee also conceded on cross-examination that Joann discussed her marital problems, including a possible divorce, during virtually every counseling session and, in addition, opined that John had caused Joann psychological injury by being verbally and physically abusive. Thus, contrary to her argument, Margaret presented substantial evidence that all, or, aportion, of Joann's counseling bills were attributable to marital discord rather than to sexual abuse.5. Did the District Court err in denying Margaret's motion for adirected verdict on the negligence claim against her individually? Joann contended at trial that Margaret wasnegligent in that shebreached her parental duty of care to protect Joann. Margaret moved for a directed verdict on the basis that Joann failed to present evidence from which a jury could find that she was negligent. TheDistrict Court concluded that there wassufficient evidence regarding Margaret's role in Kenneth's abuse of Joann to goto the jury anddenied Margaret's motion for adirected verdict.Margaret argues that the undisputed evidence established only

that sheasked Kenneth to discuss sex education with Joann andthat such evidence is insufficient as a matter of law to support a finding of negligence. On that basis, she asserts that the District Court erred in denying her motion for adirected verdict. Asdiscussed above, adirected verdict is proper only where there is acomplete absence of evidence justifying submitting the issue to ajury. Pierce, 890P.2d at 1260 (citing Jacaues, 649 P.2d at 1325).Margaret's "undisputed evidence" argument simply ignores the record before us. Joann testified that, when she confronted Margaret andKenneth in Novemberof 1989, Margaret admitted having Kenneth have sexwith her under the pretext of sex education. Dr. Malinak's video-taped deposition testimony that he sensed from speaking with Margaret that she was aware that Kenneth's sexual abuse of Joann wasgoing to occur corroborates Joann's testimony. Weconclude that there wassufficient evidence to submit the issue of Margaret's negligence to a jury. Accordingly, wehold that the District Court did not err in denying Margaret's motion for a directed verdict on the negligence claim against her individually. Margaret also argues generally that substantial credible evidence does not support the jury's verdict that she was negligent. Substantial evidence is evidence which a reasonable mind might accept asadequate to support aconclusion and maybe based onweakandconflicting evidence. King v. Zimmerman (1994),

18266Mont. 54, 60, 878P.2d 895, 899 (citing Arnold v. Boise Cascade

(1993)I 259Mont. 259, 265, 856P.2d 217, 220). Theweight given to the evidence andthe credibility of witnesses lie solely within the province of the jury; wewill not reweigh conflicting evidence. Thayer v. Hicks (1990), 243 Mont. 138, 153, 793 P.2d 784, 793 (citing Stewart v. Fisher (1989), 235 Mont. 432, 436, 767 P.2d 1321, 1323). Margaret's substantial evidence argument is based on her contention that portions of Dr. Malinak's testimony were inadmissible, andwehave concluded otherwise. Moreover, Joann's testimony that Margaret admitted in 1989 that she "had [Kenneth] have sexwith [Joann]" constitutes substantial credible evidence of Margaret's negligence onastand-alone basis. Weconclude that substantial credible evidence supports the jury's finding that Margaret wasnegligent. As her final related argument, Margaret contends that Kenneth's intentional sexual abuse of Joann breaks any causal connection between her acts andJoann's injuries andprecludes any liability onher part for those injuries as a matter of law. She relies onAzure v. U.S. Health andHumanServices (D. Mont. 1991), 758F.Supp. 1382, andDeedsv. United States (D. Mont. 1969), 306 F.Supp. 348, for the proposition that "where harm is intentionally caused by a third person and is not within the scope of risk created by the defendant's conduct[,l" the third person's iabi lity against the intentional act precludes imposition of 1 defendant.

19Margaret's reliance onAzure andDeedsis misplaced. Although

Margaret correctly states the rule from those cases onintervening, superseding causes, she does not properly apply it due to her continued mischaracterization of the record to the effect that "there was no evidence [that Kenneth's abuse of Joann] was contemplated by [her]." Causation issues generally present questions of fact; where conflicting evidence is presented at trial, such issues must be decided by ajury. Paynev. Sorenson (1979), 183Mont. 323, 327, 599 P.2d 362, 365. Asdiscussed above, Joann presented evidence that Margaret knewKenneth intended to havesexual contact with her in the context of educating her about sexandthat Margaret removed her other children from the house for that reason. This evidence is sufficient to raise afact issue for the jury with regard to whether the harmto Joann caused byKenneth's intentional acts was within the scope of risk created by Margaret's conduct. Onthat basis, weconclude that Margaret's argument that Kenneth's abuseof Joann constituted an intervening, superseding cause of Joann's injuries which precluded the imposition of liability on her as a matter of law is without merit. 6. Did the District Court err in instructing the jury on causation? On behalf of the Estate, Margaret advances a number of arguments under which she contends the District Court failed to properly instruct the jury on causation. Adistrict court has discretion in instructing the jury and wewill not reverse the court onthe basis of alleged instructional errors absent anabuse 20of discretion. Cechovic v. Hardin &ASSOC., Inc. (Mont. 1995), 902

P.2d 520, 527, 52 St.Rep. 854, 860 (citing Arnold, 856 P.2d at 222). In reviewing jury instructions, weconsider the instructions given in their entirety and in connection with the evidence presented at trial. Cechovic, 902 P.2d at 527 (citing Story v. City of Bozeman (19931, 259Mont. 207, 222, 856 P.2d 202, 211). Margaret argues that the District Court erred by giving Instruction No. 12, which she contends essentially directed the jury to award Joann damages if it found that Kenneth sexually abused Joann. Margaret contends that the instruction failed to require the jury to find that Kenneth's conduct caused Joann's injuries and resulted in the imposition of strict liability for Kenneth's conduct. Instruction No. 12reads asfollows: As to the Estate of Kenneth David, you are instructed that if youfind hesexually abusedJoannWerre, then you should determine the amount of money that would compensate her for the injuries, if any she received, according to the further instructions I will give you. While Margaret is correct that this instruction does not require a causation finding, it does refer the jury to the court's other instructions. In this regard, the District Court instructed the jury that "[iIf you find that

. . Kenneth David, knowingly had sexual intercourse with [Joann]

. . . you may determine what damages, if any, were caused byhis unlawful conduct." Considering these instructions together, aswemust (see Cechovic, 902P.2d at 527), it is clear that the jury was required to determine whether Kenneth's conduct causedJoann anydamages. Thus, weconclude that

21the instructions did not result in the imposition of strict

liability for Kenneth's conduct. Margaret also argues that Instruction No. 12required the jury "to award all damages arising out of either the Uncle Francis abuse, or the [Kenneth] incident, against [Margaret and the Estate] .'I Instruction No. 12does not mention the abuse by Uncle Francis andcertainly did not require the jury to award all damages arising from either Uncle Francis' or Kenneth's abuse against Margaret andthe Estate. It merely directed the jury to determine whether and, if so, the extent to which Kenneth's abuse caused damagesto Joann; it did not foreclose the jury from determining that portions of Joann's damageshadanother cause. Moreover, the District Court specifically instructed the jury that it could apportion damages by giving Instruction No. 23, which reads as follows: Whereapreexisting condition hasbeenaggravated by the act suedupon, it is your duty, if possible, to apportion the amount of injury between that caused by the preexisting condition and that caused by the act sued upon

. . . Thus, it is clear that the court's instructions did not require the jury to award all damages, regardless of the source from which they arose, against Margaret andthe Estate. Margaret also seemsto argue that the District Court failed to instruct the jury onher theory that Joann's injuries were caused solely byUncle Francis' abuse. Her theory wassupported at trial byAndroes' testimony that, in his opinion, Joann's injuries were caused byUncle Francis' abuse.

22However, Margaret did not offer an instruction encompassing

her theory that Uncle Francis' abusewasthe sole cause of Joann's injuries. Rule 51, M.R.Civ.P., provides that "[nlo party may assign as error the failure to instruct onanypoint of law unless that party offers aninstruction thereon." Weconclude, therefore, that Margaret is precluded from assigning error in this regard. Margaret's final assertion of instructional error is that the District Court erred by failing to instruct the jury to determine whether Kenneth's sexual abuse of Joann wasthe cause-in-fact and proximate causeof her injuries. Therecord reflects that Margaret and Joann each proposed a cause-in-fact and proximate cause instruction covering both defendants. Margaret objected to Joann's proposed causation instruction andthe court refused it. Margaret then withdrew her ownproposed causation instruction covering both defendants andoffered arevised instruction covering only her own conduct. TheDistrict Court gave Margaret's proposed instruction

over Joann's objection. As we stated above, "[nlo party may assign as error the failure to instruct onanypoint of law unless that party offers an instruction thereon." Rule 51, M.R.Civ.P. Having failed to offer

a causation instruction covering the alleged deficiency of which she nowcomplains onappeal, Margaret's assertion of error is not properly before us Wehold that the District Court did not err in instructing the jury on causation. 7. Did the District Court abuse its discretion in denying Margaret's motion for anewtrial? 23Margaret argues that the District Court erred in denying her

motion for anewtrial because the jury's $250,000 damageaward was not supported by the evidence andwas the result of passion and prejudice. Section 25-11-102, MCA,sets forth the grounds for a

newtrial andprovides, insofar as it is relevant here, that [tlhe former verdict

. . maybevacated andanewtrial granted onthe application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

. . . . (5) excessive damagesappearing to havebeengiven under the influence of passion or prejudice; (6) insufficiency of the evidence to justify the verdict

. . . . In considering amotion for anewtrial based onanallegation of excessive damages, adistrict court cannot substitute its judgment for that of the jury unless it appears that the amount awarded is

soout of proportion asto shock the conscience. Gibson v. Western Fire Ins. Co. (1984), 210Mont. 267, 290, 682 P.2d 725, 738. We review adistrict court's denial of amotion for anewtrial to determine if the court abused its discretion. Gibson, 682P.2d at 738. With regard to the amount of the jury's verdict, the record establishes the monetary amount of Joann's past counseling bills andher bills from Glacier View. Dr. Malinak testified that Joann

was charged $14,240.55 for atwenty-one day stay at Glacier View andthat, in his opinion, this wasareasonable charge. Hefurther testified that Joann was charged $900 for "services" during her hospitalization at Glacier View. Leetestified that she charged 24Joann $50 to $60 for each session and that all of Joann's

counseling wasrelated to her childhood sexual abuse. Between May of 1989 and September of 1994, Joann incurred approximately $3,457.50 in counseling bills from Lee. Thus, Joann's counseling andhospitalization bills to the date of trial totalled $18,598.05. Joann also presented evidence regarding her future need for treatment. Dr. Malinak opined that Joann needs intensive outpatient treatment twice aweek for two to four years and that she may require additional inpatient treatment. Dr. Malinak did not opine asto howmuchJoann's future care would cost. However, hedid state that, since Lee had counseled Joann in the past, he would suggest that Joann continue her treatment with Lee. Thus, based on Lee's fee for a counseling session and Dr. Malinak's opinion regarding Joann's future treatment needs, Joannwould incur at least $12,480 for two years of counseling or $24,960 for four years of counseling with Lee. This calculation assumesthat Lee's fee will not increase within the next two to four years. Moreover, these estimated figures do not include the cost of any future inpatient treatment Joann mayrequire. Therecord also contains evidence demonstrating the pain and suffering Joann endured asaresult of Kenneth's sexual abuse and Margaret's allowing the abuse to occur. In this regard, wehave stated that there is nodefinite standard fixed by law in awarding damagesfor past or future mental andphysical pain and suffering; all that is required is that the jury exercise calm and reasonable judgment in its award. Rasmussenv. Sibert (1969), 153Mont. 286, 297, 456P.2d 835, 841. 25Here, approximately 35years passed between Kenneth's sexual

abuse of Joann andthe trial in this case, during which time Joann has been impacted by the effects of the abuse. Lee opined that Joann's marital conflict, or at least the manner in which shedealt with the conflict, wasattributable to her childhood sexual abuse. Joann testified that she felt ashamed and nervous after Kenneth sexually abused her. Shefurther testified that, after Kenneth's abuse, she did not feel safe in her home and felt depressed, worthless andunable to trust others. Weconclude that substantial evidence supports the jury's award of $250,000 andthat the awarddoesnot shock the conscience. Accordingly, we hold that the District Court did not abuse its discretion in denying Margaret's motion for anewtrial. Affirmed.

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