No. 95-145 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

JOANN R. WERRE and JOHN D. WERRE, 

Plaintiffs, Respondents and 

Cross-Appellants, 

v. 

MARGARET R. DAVID, Individually and 

as Personal Representative of the 

Estate of KENNETH C. DAVID, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert S. Keller, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Daniel W. Hileman; Murray & Kaufman, Kalispell, 

Montana (argued) 

For Respondents: 

Joe Bottomly; Bottomly Law Offices, Kalispell, 

Montana (argued) 

For Amicus Curiae: 

Linda Mangel, Attorney at Law, Seattle Washington 

Joan Jonkel, Attorney at Law, Missoula, Montana 

(for Northwest Women's Law Center) 

David R. Paoli, Attorney at Law, Missoula, Montana 

(for Montana Trial Lawyers Association) 

Filed: 

Submitted: November 16, 1995 

Decided: March 14, 1996 
Justice 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 by the Eleventh Judicial District Court, 

Flathead County, on a jury verdict awarding Joann R. Werre (Joann) 

and John D. Werre (John) damages in the amount of $250,000. Joann 

cross-appeals, but requests that we not address the issues she 

raises unless we reverse and remand for a new trial as a result of 

Margaret's appeal. We affirm and, therefore, deem the cross-appeal 

withdrawn. 

We restate the issues on appeal as follows: 

1. Did the District Court err in denying Margaret's motion 

for a directed verdict on the basis that whether Joann's claim was 

time-barred pursuant to § 27-2-216, MCA, was a question 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 and John'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? 

2 
6. 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 a new trial? 

Margaret married Ben Carkuff (Ben) in 1945 and they had four 

children, including Joann. When Joann was approximately six to 

eight years old, she was sexually abused by Ben's brother, whom she 

called Uncle Francis, during weekly visits to Ben's parents' home. 

The abuse by Uncle Francis stopped in 1957 when the family's weekly 

visits to Joann's paternal grandparents' home ceased after Margaret 

divorced Ben. Margaret married Kenneth David (Kenneth) in 1957 and 

they and Margaret's children, including Joann, moved from Minnesota 

to Kalispell, Montana. 

When Joann was approximately twelve to fourteen years old, 

Margaret asked Kenneth to "give" Joann sex education. She took all 

of her children except Joann out for ice cream so that Kenneth 

could be alone with Joann. Kenneth had sexual intercourse with 

Joann on this occasion. After that incident, Kenneth also fondled 

Joann several times. 

Joann married John when she was seventeen years old. She did 

not tell anyone about the abuse by either her uncle or Kenneth 

until 1989, when she 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 May of 1989. She originally 

diagnosed Joann as having an adjustment disorder with mixed 

3 
emotional 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 and the 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 he sexually abused Joann. Kenneth died in July 

of 1990. 

In December of 1989, Joann became an inpatient 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 by Uncle Francis 

and the abuse by Kenneth were causal factors in Joann's disorders 

and, further, that Kenneth's abuse was a major cause of those 

disorders. 

On September 3, 1992, Joann filed a complaint against Margaret 

individually and as 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 and failing to use due care to protect her. 

During the jury trial, the District Court directed a verdict in 

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

individually. The jury 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 

as personal 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 a directed verdict on the basis that whether 

Joann's claim was time-barred pursuant to § 27-2-216, 

MCA, was a question 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. On that basis, she 

argues that the District Court was required to direct a verdict in 

her favor as a matter of law under § 27-2-216, MCA. 

A directed verdict is proper only when there is a complete 

absence of any evidence which would justify submitting an issue to 

a jury, and all inferences which can be drawn from the evidence 

must be considered in a light most favorable to the opposing party. 

Pierce v. ALSC Architects, P.S. (1995), 270 Mont. 97, 107, 890 P.2d 

1254, 1260 (citing Jacques v. Montana Nat'1 Guard (1982), 199 Mont. 

493, 649 P.2d 1319). A district court must deny a motion for a 

directed verdict if substantial conflicts in the evidence exist. 

Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 533, 885 

P.2d 432, 435 (quoting Simchuk v. Angel Island Community Ass'n 

(1992), 253 Mont. 221, 833 P.2d 1587). 

5 
Section 27-2-216(l) (b), MCA, provides, in relevant part: 

(1) An action based on intentional conduct brought by a 

person for recovery of damages for injury suffered as a 

result of childhood sexual abuse must be commenced not 

later than: 

. . . 

(b) 3 years after the plaintiff discovers or 

reasonably should have discovered that the injury was 

caused by the 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 and her 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 she did not tell a male therapist 

she saw in 1970 about Kenneth's sexual abuse because she distrusted 

men as a result of that abuse. Joann also conceded on crossexamination that, when she first saw Lee in May of 1989, she made 

some connection between her need for counseling and her childhood 

sexual abuse. 

However, Joann presented evidence indicating that she did not 

discover that her mental disorders were connected to Kenneth's 

abuse until after September 3, 1989. She testified that, although 

she was always aware that she had been sexually abused, she did not 

connect her abuse with her psychological problems until November of 

1989. Lee opined that Joann began to connect the sexual abuse by 

6 
Kenneth with her mental disorders after she confronted Margaret and 

Kenneth in November of 1989. Dr. Malinak testified that, when 

Joann was hospitalized at Glacier View in December of 1989, she was 

in the process of connecting her sexual abuse with her mental 

disorders. Moreover, Herman Androes (Androes), a clinical 

psychologist and therapist testifying on behalf of Margaret and the 

Estate, conceded on cross-examination that he agreed with the 

conclusions of Lee and Dr. Malinak in this regard. 

This review of the record demonstrates the substantial 

conflicts in the evidence regarding when Joann discovered that her 

injuries were caused by the childhood sexual abuse she experienced, 

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), 268 Mont. 477, 485, 886 P.2d 

971, 976. Therefore, based on the record before us, we conclude 

that the time at which Joann discovered a connection between 

Kenneth's sexual abuse and her mental disorders was a question of 

fact for the jury. Accordingly, we hold that the District Court 

did not err in denying Margaret's motion for a directed 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 on intentional 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 

7 
statutory 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 and that, 

because Joann's remaining claim against her individually alleges 

only that she was negligent, the claim cannot be maintained under 

§ 27-2-216, MCA. 

The District Court concluded that 5 27-2-216, MCA, includes 

negligence claims which are based on intentional conduct and that, 

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), 271 Mont. 459, 469, 898 P.2d 680, 686 (citing Steer, Inc. 

v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 

603). 

In interpreting a statute, we look first to the plain meaning 

of the words it contains. Clarke v. Massey (1995), 271 Mont. 412, 

416, 897 P.2d 1085, 1088. Where the language is clear and 

unambiguous, the statute speaks for itself and we will not resort 

to other means of interpretation. Clarke, 897 P.2d at 1088. It In 

the search for plain meaning, 'the language used must be reasonably 

and logically interpreted, giving words their usual and ordinary 

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

715 P.2d 443, 445 (quoting In re Matter of McCabe (1975), 168 Mont. 

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 on based on intentional conduct . . 

11 The meaning 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 be that "based on" means "equal to." 

We previously 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), 93 Mont. 19, 17 P.2d 68. 

State Bd. of Euualization involved a statute 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 be determined by taking the market value of all 

merchantable metals or mineral products . . . based upon the 

average quotations . . . in the City of New York . . 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 New York price of the 

metals by the 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 New York prices should be used as 

9 
a base for determining Montana values, essentially arguing that 

"based upon" means a starting point for determination. State Bd. 

of Eaualization, 17 P.2d at 70. We stated that "the ordinarily 

accepted meaning of the words 'based upon' is an initial or 

starting point . . . .'I State Bd. of Eaualization, 17 P.2d at 73. 

Moreover, we have indicated that "on" and "upon" are synonymous 

and, thus, interchangeable. Northern Pac. R.R., Co. v. Gas Dev. 

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 

on which something rests or stands: FOUNDATION . . the point or 

line from which a start is made in an action or undertaking . . 

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

we conclude 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 and declare 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. 

10 
Here, 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 5 27-2-216, MCA, "based 

on intentional conduct." To accept 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 a vacuum. We 

must harmonize statutes relating to the same subject 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), 166 Mont. 104, 531 P.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 commencement of an action upon 

a liability not founded upon an instrument in writing is 

within 3 years. 

. . 

(3) The period prescribed for the commencement of 

an action for libel, slander, assault, battery, false 

imprisonment, or seduction is within 2 years. 

11 
Section 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 abuse would require us to contravene 

our role in interpreting statutes by omitting from § 27-2-204(l), 

MCA, the specific cross-reference enacted by the 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. We conclude that § 27-2-216, 

MCA, is plain, unambiguous, direct and certain and that it is not 

limited to intentional tort actions against perpetrators of 

childhood sexual abuse. Accordingly, we hold 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 a notice indicating the potential use of the 

deposition at trial as perpetuated testimony. During the 

deposition, Dr. Malinak testified regarding a telephone 

conversation he had with Margaret while Joann was hospitalized at 

12 
Glacier View. Specifically, he stated that he "sense[dl [Margaret] 

was aware that [the sexual abuse1 was going 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 a conclusion and called for speculation. Joann 

responded that, had Margaret objected during the deposition, she 

could have established a sufficient foundation for Dr. Malinak's 

testimony. 

The District Court denied Margaret's motion to edit Dr. 

Malinak's testimony. We review 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), 261 Mont. 338, 341, 863 P.2d 378, 380). 

Margaret argues generally on appeal that Dr. Malinak's 

impressions about whether she knew Kenneth would sexually abuse 

Joann constitute an inadmissible conclusion as to what was in her 

mind. As we previously 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 any error "in 

the form of the questions or answers, . . . and errors of any kind 

which might be obviated, removed, or cured if promptly presented, 

13 
are 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 made during the deposition as required by Rule 

32(d) (3) (B), M.R.Civ.P. We conclude, therefore, that Margaret 

waived any errors regarding the admissibility of portions of Dr. 

Malinak's testimony. We hold 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 and John experienced on the 

basis that it was irrelevant and inflammatory. Margaret responded 

that the evidence was relevant to issues of causation and damages 

and that her case would be prejudiced 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 had a gun to protect herself from John while staying with her 

brother prior to her admission to Glacier View. However, the court 

refused to exclude evidence about whether the marital discord on a 

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 on a limited basis. She 

argues that the court's exclusion of such evidence precluded the 

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

attributable to her marital discord rather than to the sexual 

abuse. A district court has wide discretion in determining the 

admissibility of evidence; we review a trial 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 means evidence having any tendency 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. We have 

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), 186 Mont. 187, 207, 606 P.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 and John's marital problems that the marital problems were at 

least a cause of Joann's mental disorders. The excluded evidence 

arguably has some value 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 

15 
relevant evidence. "Although relevant, evidence may be excluded 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 was an abuse of discretion to admit evidence regarding 

the claimant's poor home environment on the basis that, although 

the evidence was relevant under Rule 402, M.R.Evid., no evidence at 

trial established a medical connection between poor home 

environment and the claimant's symptoms. Kimes, 705 P.2d at 110. 

In Kimes, expert witnesses indicated that poor home environment may 

cause symptoms such as those exhibited by the claimant; however, 

the testimony was not sufficient to establish a medical connection. 

Kimes, 705 P.2d at 110. 

Similarly, in this case, even Margaret's own expert 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 a significant causal factor, 

they could not significantly impact on the 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 View as both misleading 

and more prejudicial than probative under Rule 403, M.R.Evid. 

16 
Accordingly, 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 a basis upon which the jury could find that marital 

discord, rather than sexual abuse, caused Joann's mental disorders 

and damages ignores the record. On cross-examination, Dr. Malinak 

testified that a considerable 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, a portion, 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 a directed verdict on the negligence claim 

against her individually? 

Joann contended at trial that Margaret was negligent in that 

she breached 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. The District Court concluded that there was sufficient 

evidence regarding Margaret's role in Kenneth's abuse of Joann to 

go to the jury and denied Margaret's motion for a directed verdict. 
Margaret argues that the undisputed evidence established only 

that she asked Kenneth to discuss sex education with Joann and that 

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 a directed verdict. 

As discussed above, a directed verdict is proper only where there 

is a complete absence of evidence justifying submitting the issue 

to a jury. Pierce, 890 P.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 and Kenneth in November of 1989, Margaret admitted having 

Kenneth have sex with 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 was going to occur corroborates Joann's testimony. 

We conclude that there was sufficient evidence to submit the 

issue of Margaret's negligence to a jury. Accordingly, we hold 

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 as adequate to support a conclusion and may be 

based on weak and conflicting evidence. King v. Zimmerman (1994), 

18 
266 Mont. 54, 60, 878 P.2d 895, 899 (citing Arnold v. Boise Cascade 

(1993) I 259 Mont. 259, 265, 856 P.2d 217, 220). The weight given 

to the evidence and the credibility of witnesses lie solely within 

the province of the jury; we will 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, and we have concluded otherwise. Moreover, Joann's 

testimony that Margaret admitted in 1989 that she "had [Kenneth] 

have sex with [Joann]" constitutes substantial credible evidence 

of Margaret's negligence on a stand-alone basis. We conclude that 

substantial credible evidence supports the jury's finding that 

Margaret was negligent. 

As her final related argument, Margaret contends that 

Kenneth's intentional sexual abuse of Joann breaks any causal 

connection between her acts and Joann's injuries and precludes any 

liability on her part for those injuries as a matter of law. She 

relies on Azure v. U.S. Health and Human Services (D. Mont. 1991), 

758 F.Supp. 1382, and Deeds v. 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 

intentional act precludes imposition of 1 iabi lity against the 

defendant. 

19 
Margaret's reliance on Azure and Deeds is misplaced. Although 

Margaret correctly states the rule from those cases on intervening, 

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 a jury. Payne v. Sorenson (1979), 183 Mont. 323, 327, 

599 P.2d 362, 365. As discussed above, Joann presented evidence 

that Margaret knew Kenneth intended to have sexual contact with her 

in the context of educating her about sex and that Margaret removed 

her other children from the house for that reason. This evidence 

is sufficient to raise a fact issue for the jury with regard to 

whether the harm to Joann caused by Kenneth's intentional acts was 

within the scope of risk created by Margaret's conduct. On that 

basis, we conclude that Margaret's argument that Kenneth's abuse of 

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. A district court has 

discretion in instructing the jury and we will not reverse the 

court on the basis of alleged instructional errors absent an abuse 

20 
of 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, we consider 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, 259 Mont. 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. 12 reads as follows: 

As to the Estate of Kenneth David, you are instructed 

that if you find he sexually abused Joann Werre, 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 by his unlawful conduct." Considering 

these instructions together, as we must (see Cechovic, 902 P.2d at 

527), it is clear that the jury was required to determine whether 

Kenneth's conduct caused Joann any damages. Thus, we conclude that 

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the instructions did not result in the imposition of strict 

liability for Kenneth's conduct. 

Margaret also argues that Instruction No. 12 required 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. 12 does not mention the abuse by Uncle 

Francis and certainly did not require the jury to award all damages 

arising from either Uncle Francis' or Kenneth's abuse against 

Margaret and the Estate. It merely directed the jury to determine 

whether and, if so, the extent to which Kenneth's abuse caused 

damages to Joann; it did not foreclose the jury from determining 

that portions of Joann's damages had another cause. Moreover, the 

District Court specifically instructed the jury that it could 

apportion damages by giving Instruction No. 23, which reads as 

follows: 

Where a preexisting condition has been aggravated by the 

act sued upon, 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 and the Estate. 

Margaret also seems to argue that the District Court failed to 

instruct the jury on her theory that Joann's injuries were caused 

solely by Uncle Francis' abuse. Her theory was supported at trial 

by Androes' testimony that, in his opinion, Joann's injuries were 

caused by Uncle Francis' abuse. 

22 
However, Margaret did not offer an instruction encompassing 

her theory that Uncle Francis' abuse was the sole cause of Joann's 

injuries. Rule 51, M.R.Civ.P., provides that "[nlo party may 

assign as error the failure to instruct on any point of law unless 

that party offers an instruction thereon." We conclude, 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 was the cause-in-fact and 

proximate cause of her injuries. The record 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 and the court refused it. Margaret 

then withdrew her own proposed causation instruction covering both 

defendants and offered a revised instruction covering only her own 

conduct. The District Court gave Margaret's proposed instruction 

over Joann's objection. 

As we stated above, "[nlo party may assign as error the 

failure to instruct on any point 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 now complains on appeal, Margaret's assertion of error is not 

properly before us 

We hold 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 a new trial? 

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Margaret argues that the District Court erred in denying her 

motion for a new trial because the jury's $250,000 damage award was 

not supported by the evidence and was the result of passion and 

prejudice. Section 25-11-102, MCA, sets forth the grounds for a 

new trial and provides, insofar as it is relevant here, that 

[tlhe former verdict . . may be vacated and a new trial 

granted on the application of the party aggrieved for any 

of the following causes materially affecting the 

substantial rights of such party: 

. . . . 

(5) excessive damages appearing to have been given 

under the influence of passion or prejudice; 

(6) insufficiency of the evidence to justify the 

verdict . . . . 

In considering a motion for a new trial based on an allegation of 

excessive damages, a district court cannot substitute its judgment 

for that of the jury unless it appears that the amount awarded is 

so out of proportion as to shock the conscience. Gibson v. Western 

Fire Ins. Co. (1984), 210 Mont. 267, 290, 682 P.2d 725, 738. We 

review a district court's denial of a motion for a new trial to 

determine if the court abused its discretion. Gibson, 682 P.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 

and her bills from Glacier View. Dr. Malinak testified that Joann 

was charged $14,240.55 for a twenty-one day stay at Glacier View 

and that, in his opinion, this was a reasonable charge. He further 

testified that Joann was charged $900 for "services" during her 

hospitalization at Glacier View. Lee testified that she charged 

24 
Joann $50 to $60 for each session and that all of Joann's 

counseling was related 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 

and hospitalization 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 a week for two to four years and that 

she may require additional inpatient treatment. Dr. Malinak did 

not opine as to how much Joann's future care would cost. However, 

he did 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, Joann would incur 

at least $12,480 for two years of counseling or $24,960 for four 

years of counseling with Lee. This calculation assumes that 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 may require. 

The record also contains evidence demonstrating the pain and 

suffering Joann endured as a result of Kenneth's sexual abuse and 

Margaret's allowing the abuse to occur. In this regard, we have 

stated that 

there is no definite standard fixed by law in awarding 

damages for past or future mental and physical pain and 

suffering; all that is required is that the jury exercise 

calm and reasonable judgment in its award. 

Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835, 841. 

25 
Here, approximately 35 years passed between Kenneth's sexual 

abuse of Joann and the 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 she dealt 

with the conflict, was attributable to her childhood sexual abuse. 

Joann testified that she felt ashamed and nervous after Kenneth 

sexually abused her. She further testified that, after Kenneth's 

abuse, she did not feel safe in her home and felt depressed, 

worthless and unable to trust others. 

We conclude that substantial evidence supports the jury's 

award of $250,000 and that the award does not shock the conscience. 

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

discretion in denying Margaret's motion for a new trial. 

Affirmed. 

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