Opinion
No. CIV. S-03-2439 FCD/KJM.
February 10, 2006
MEMORANDUM AND ORDER
This matter is before the court on defendant United States of America's ("defendant") motion for summary judgment, or in the alternative, partial summary judgment in this Federal Tort Claims Act case involving allegations of child abuse at a United States Air Force preschool. Plaintiffs N.S. ("N.S.") and D.T. ("D.T.") (collectively, "plaintiffs"), by and through their mothers as guardians ad litem, oppose the motion.
Plaintiff brings the instant suit against the government pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671- 2680, which is the source of the court's jurisdiction over the matter.
The court heard oral argument on December 16, 2005. At the hearing, the court granted plaintiffs leave to file a motion to re-open discovery, under Federal Rule of Civil Procedure 16(b), to depose a former employee of the preschool; plaintiffs filed said motion on December 21, 2005; defendant filed its opposition on December 23, 2005.
Unless otherwise noted, all further references to a "Rule" are to the Federal Rules of Civil Procedure.
By this order, the court now renders its decision on both motions. Because the court denies plaintiffs' motion to re-open discovery, it reaches the merits of defendant's motion for summary judgment. For the reasons set forth below, the court DENIES defendant's motion.
BACKGROUND
The following factual background includes facts objected to by defendant on the basis of "inadmissible hearsay." As set forth below, the court overrules defendant's global objection to all of plaintiffs' evidence, except plaintiffs' deposition testimony. Accordingly, the facts as described herein relate both to the facts as developed at the time of the alleged incidents of abuse and as subsequently testified to by plaintiffs in their depositions in this case. Unless otherwise noted, the facts recited herein are undisputed. (See Def.'s Mem. of P. A., Stmt. of Undisputed Facts ["SUF"], filed Sept. 27, 2005, at 2-11; Pls' Opp'n, filed Nov. 21, 2005, at 7-11.) Where the facts are in dispute, the court recounts plaintiffs' version of the facts.
On September 18, 2000 (the next business day), N.S.' parents told the Director of CDC3, Teresa Costa ("Ms. Costa"), about the conversation between Rocky and N.S.. According to Mrs. Suida, Ms. Costa promised that Rocky would not be near N.S. anymore. (Id. at 78:23-80:10.) Mrs. Suida has no information that N.S. and Rocky were ever together after that date. (Id. at 85:22-86:10.)
Ms. Costa recalls that Mr. Suida came up to her on the playground and told her about the conversation between Rocky and N.S.. (SUF at ¶ 2.)
After her conversation with the Suidas, Ms. Costa confirmed that Rocky and N.S. were assigned to separate classrooms. While the classrooms were completely self-contained, they did, at times, share the playground. Ms. Costa notified the teachers about the incident, and that N.S.' parents were concerned about N.S. being with Rocky. However, she did not do a formal incident report as she believed, at the time, the circumstances did not indicate abuse. She tried to contact Rocky's parents but was not able to do so. (SUF ¶ 2.) Ms. Costa later testified that Rocky's conversation with N.S. was a "red flag" for possible sexual abuse. (Ex. 2 [Costa Depo.] to Pls.' Appendix of Evid. ["PAE"], filed Nov. 21, 2005, at 110:25-111:19.)
Thereafter, on September 20, 2000, according to D.T.'s mother, Christina Tranfaglia ("Mrs. Tranfaglia"), a teacher at CDC3 (Sandrea O'Conner, known as "Ms. Sam") told her about an incident between Rocky and D.T. (also age four). (Ex. E ["Mrs. Tranfaglia's Depo."] to DAE at 43:22-44:8.) Ms. Sam told Mrs. Tranfaglia that she found Rocky and D.T. under the loft at the school (which is located inside the classroom) with their pants down; D.T. was on his hands and knees with his buttocks facing Rocky who was on his knees with his pants pulled down. D.T. was crying and pulling away from Rocky saying "no, no, no." Rocky was sent home. (Id.) The next morning, D.T.'s parents, reported the incident to Ms. Costa, who asked Ms. Sam to write a written report. (SUF ¶ 3.) Ms. Sam did so. (Id.)
Mrs. Tranfaglia testified that D.T. told her Rocky had asked D.T. to pull down his pants and that Rocky had asked him to "kiss his (Rocky's) pee pee;" D.T. admitted he complied with Rocky's request and kissed Rocky's "pee pee" and Rocky kissed D.T.'s "pee pee." (Ex. 6 [Mrs. Tranfaglia's Depo.] to PAE at 52:2-3, 56:3-8, 59:13-15.) D.T. also told Mrs. Tranfaglia that Rocky wanted to play a game called "kiss butts." (Id. at 44:12-16.)
After the incident involving Rocky and D.T., Ms. Costa reported the incident as well as the incident involving N.S. and Rocky to the Flight Chief and Family Advocacy Services (SUF ¶ 3); due to those reports and to the complaints and concerns of plaintiffs' parents, the Commander at Travis Air Force Base called for a Command Directed Investigation ("CDI") of the management of CDC3. (Ex. F to DAE.) An investigator was appointed to inquire into the handling and reporting of child abuse cases and the training qualification procedures for child care providers at the CDCs on base. Neither plaintiffs nor Rocky were interviewed as part of this investigation because the substantiation or non-substantiation of their allegations were not part of the investigation. (Id.)
Ultimately, the CDI concluded that all of the teachers at CDC3 were properly trained and that the incidents were properly reported. (Id.) While the report also concluded that the students were properly supervised, it determined that the loft inside the school and the train structure on the playground gave the children a place to hide and prevented adult supervision. The report recommended the train play-structure be removed and that the loft be removed or re-configured. (Ex. 11 to PAE.)
Additionally, upon being notified by the Family Advocacy Office about a possible case of child abuse, the Air Force Office of Special Investigations ("OSI") conducted an investigation; as part of the investigation, various children were interviewed, including plaintiffs and Rocky, and their interviews were videotaped. The interviews were conducted by Jim Mowry, a twelve-year OSI investigator who had received special training in the forensic interviewing of children. According to defendant, the purpose of the investigation was not to determine precisely what occurred at the daycare, but rather to obtain leads to help determine if any children were being sexually abused by an adult, specifically an Air Force member. The investigation concluded that Rocky learned the sexual behavior he was exhibiting from someone (a ten year old) who had no affiliation with the Air Force; the matter was referred to the Sacramento County Child Protective Services. (Def.'s Mem. of P. A. at 5:3-14.)
Plaintiffs did not specifically object to this description of the purposes and nature of the OSI investigation. However, neither side offered into evidence any documentation of the investigation, other than the videotapes of plaintiffs' and Rocky's interviews. The court has nonetheless provided these facts for background.
During D.T.'s videotaped interview, on September 26, 2000, D.T. first denies he knows Rocky, then later says he does, that he plays with him, and that Rocky is one years old. D.T. describes that Rocky showed D.T. Rocky's privates and D.T. "just walked away." D.T. says on one occasion in the loft, Rocky touched D.T.'s penis by reaching into D.T.'s clothes; D.T. did not touch Rocky's penis.
The court has reviewed the videotaped interviews of D.T., N.S., and Rocky (a transcript of the tapes was not provided to the court by the parties). In the papers, both parties describe the children's testimony but in doing so they characterize the testimony in an effort to support their opposing positions. The videotapes, however, speak for themselves. (Lodged Videotapes, filed Nov. 21, 2005 [Docket #35].) Nonetheless, for purposes of this order, the following summary of the interviews is provided, based on the court's review of the videotapes; although, it is not intended to be a verbatim transcript but rather an un-characterized description of the key facts.
During N.S.' videotaped interview, on October 10, 2000, N.S. described an incident where he did not want to go in the playground train with Rocky because something bad would happen; he "didn't want to do it again." He described "it" as a game of "butts and pee pees;" and that he had played it with Rocky before ("we had did it at school"). With the use of drawings of bodies, N.S. described how the game was played where Rocky put his penis in N.S.' butt and mouth and N.S. did the same to Rocky. He described that he played the game "5 or 6 or 4 times."
During Rocky's videotaped interviews on September 22 and October 27, 2000, Rocky described that D.T. touched Rocky's butt and "pee pee" (penis). Rocky described that D.T. put his "pee pee" in Rocky's butt and that Rocky put his "pee pee" in D.T.'s butt; he said this took place at his house. Rocky also describes that D.T. sucked Rocky's "pee pee" at his house and that Rocky sucked D.T.'s "pee pee." Rocky further describes playing "kiss butts" and "pee pee in the butts" in the loft at school with D.T. and N.S.. Rocky learned the "kiss butts" game from Chas, an older boy he knew and who he played the game with; he also played "pee pee in the butt" with Chas at Chas' house; he played "pee pee in the butt" with Chas by sucking Chas' penis and then Chas' sucking Rocky's penis.
Plaintiffs filed the instant lawsuit on November 24, 2003. In the course of discovery, plaintiffs depositions were taken. On April 28, 2005, D.T., then 9, testified to the following: He remembers going to daycare at CDC3; he does not remember the names of any children, except Rocky. (SUF at ¶ 27.) An incident happened in the playground train structure with Rocky; Rocky showed his penis to D.T. and D.T. then showed his penis to Rocky. (Id. at ¶ s 31, 33.) D.T. did so because Rocky told him to do it. D.T. grabbed the waistband of his shorts, quickly showed his penis and then pulled his shorts back up. (Id. at ¶ 33.) Rocky blocked D.T.'s way out of the train until D.T. showed Rocky his penis; then Rocky let D.T. out. (Id.) Rocky did not touch or kiss D.T.'s penis or buttocks and D.T. did not touch or kiss Rocky's penis or buttocks. (Id. at ¶ 34.) D.T. does not remember if a teacher caught him and Rocky during the incident. (Id. at ¶ 36.) D.T. does not remember anything ever happening with Rocky in the loft inside the school. (Id.) D.T. stated there were never any other incidents with Rocky. (Id. at ¶ 38.) On April 29, 2005, N.S., then 9, testified to the following: He does not remember going to daycare at CDC3. (Id. at ¶ 8.) He does not remember anything bad happening to him there. (Id. at ¶ 9.) N.S. stated he has never heard of a game called "kiss butts" or "pee pee in the butts" and has never played it with anyone. (Id. at ¶ 15.) No one has ever pulled his pants down and showed N.S. his penis; N.S. has never lowered his pants and shown anyone his penis. (Id. at ¶ s 16-17.) No one, other than his mother, father, or a doctor has ever touched N.S.' penis or buttocks; N.S. has never touched any other child's penis or buttocks. (Id. at ¶ s 18-21.)
Finally, plaintiffs proffer evidence that over the years since the abuse, they have made statements regarding the abuse by Rocky to physicians and/or therapists. (Exs. 4, 7, 9 to PAE.)
ANALYSIS I. Motion to Re-Open Discovery
Plaintiffs move to re-open discovery to take the deposition of Ms. Sam, the teacher at CDC3 who found Rocky and D.T. under the loft with their pants down, on the grounds that: (1) the original discovery deadline was only extended by the court at plaintiffs' request some 75 days; (2) as became apparent at the summary judgment hearing, Ms. Sam's testimony is critical to the liability issues in this case, namely whether the staff at CDC3 adequately supervised the children and whether the play structures at the facility prevented them from doing so; and (3) "extenuating circumstances" provide "equitable grounds" for granting plaintiffs' motion in that plaintiffs' counsel is a sole practitioner who has had an extremely impacted schedule over the last six months.
Ms. Sam currently resides in Terra Haute, Indiana.
Counsel's schedule included a two-week trial in another case; responses to four summary judgment motions; preparation for a major medical malpractice trial which was continued at the last minute in late October; and significant other discovery in this case.
Pursuant to Rule 16, a pretrial scheduling order "shall not be modified except upon a showing of good cause." Fed.R.Civ.P. 16(b). That "good cause" standard primarily focuses upon the diligence of the party requesting the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension."Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end." Id. at 610.
Plaintiffs' showing is insufficient to demonstrate good cause to re-open discovery for several reasons. First, plaintiffs have had ample time to complete discovery in this case. The case was filed November 23, 2003 and the pretrial scheduling order issued May 5, 2004; that order set the close of discovery for July 12, 2005. However, at plaintiffs' request, defendant stipulated, and the court ordered, the continuation of the discovery cut-off twice, ultimately extending the date to September 26, 2005. Second, plaintiffs ignore the fact that during the course of discovery in this case (which they maintain was "substantial"), their counsel took only one deposition, and during the extension of discovery for some eleven weeks, plaintiffs did not take any depositions. Third, plaintiffs' counsel was specifically informed by defendant of Ms. Sam's whereabouts on May 9, 2005 and had adequate time to take her deposition before the original discovery cut-off on July 12 and certainly before the extended cut-off on September 26. Fourth, plaintiffs have known of the need to depose Ms. Sam since the inception of this case; her written statement was part of the CDI investigation which plaintiffs have had since the beginning of this case. Finally, in opposing defendant's motion for summary judgment, plaintiffs did not request to re-open discovery or make a motion under Rule 56(f); rather, they requested leave to file the instant motion only after the court's comments at oral argument emphasizing the relevance of Ms. Sam's testimony.
Therefore, for all of these reasons, the court DENIES plaintiffs' motion to re-open discovery. If plaintiffs are to succeed in defeating defendant's motion for summary judgment, they must do so without the deposition testimony of Ms. Sam.
II. Motion for Summary Judgment
A. Evidentiary Issues
Defendant moves for summary judgment arguing that plaintiffs have no admissible evidence that they were sexually abused or molested at CDC3; defendant argues that any statements plaintiffs made regarding the alleged abuse by Rocky to their mothers, to the OCI investigator, and/or to physicians or therapists are inadmissible hearsay. Defendant contends that the only admissible evidence is plaintiffs' deposition testimony which defendant argues demonstrates that "no actionable conduct occurred;" rather, according to defendant, plaintiffs' deposition testimony reveals nothing "more than normal inquisitive sex play between 4-year-olds." (Def.'s Mem. of P. A. at 2:6.)
To the contrary, plaintiffs maintain that the "underlying" evidence of abuse ( i.e., plaintiffs' statements to their parents, the investigator and/or doctors) are admissible under the residual exception to the hearsay rule (Federal Rule of Evidence ["FRE"] 807) and/or as recorded recollection (FRE 803(5)) and/or as statements made for purposes of medical diagnosis (FRE 803(4)).
The court notes preliminarily that, at least with respect to D.T., reliance on evidence outside his deposition testimony may not be necessary to defeat summary judgment. Unlike N.S., who recalled nothing about the alleged abuse at his deposition, D.T. describes at least one incident of alleged abuse which a reasonable trier of fact could determine is "actionable." At a minimum, D.T. describes a situation were he was forced by Rocky to show Rocky his penis in order to be let out of the train play-structure. Contrary to defendant's characterization of the event, a reasonable trier of fact could well find this incident more than mere "inquisitive sex-play" as the conduct was coerced.
Nevertheless, leaving this point aside, the court first considers, generally, whether the videotaped interviews of N.S., D.T. and Rocky are admissible. Because the court finds that the residual exception to the hearsay rule applies to the videotapes, it does not consider the applicability of FRE 803(5) (recorded recollection).
While plaintiffs did not specifically request admission of Rocky's videotaped interviews, the court considers the issue as Rocky's interviews provide important corroboration of plaintiffs' statements.
FRE 807 provides: "A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if:" (1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. While courts have restricted application of this rule to extraordinary circumstances, courts have specifically employed the residual exception in child abuse litigation to admit hearsay statements of the victims. United States v. Harrison, 296 F.3d 994, 1004 (10th Cir. 2002) (finding the consistency of the child abuse victim's prior statements to an FBI agent about the sexual abuse by the defendant sufficient to establish their "trustworthiness," even though the victim subsequently recanted her statements); Doe v. United States, 976 F.2d 1071, 1079 (7th Cir. 1992) (consistency and graphic descriptions by three year old child abuse victim to her mother strongly suggest her statements were trustworthy); United States v. Dunford, 148 F.3d 385, 392 (4th Cir. 1998) (repetition and consistency of teenage abuse victims' statements about their father to government officials render the statements trustworthy).
Similarly here, sufficient guarantees of trustworthiness are present in that: (1) the children were questioned by Jim Mowry, a 12 year veteran OSI investigator who had received special training in forensic interviewing of child abuse victims; (2) the interviews were conducted according to an organized template which tested the children's ability to discern truth from lies; their cognitive ability; their ability to understand and express spatial relationships; and their recollection of their interactions with each other at CDC3; (3) the statements were taken close in time to the alleged incidents (within days, if not at the longest, within approximately a month); (4) the children corroborated, at least in part, one another's stories, including descriptions of the same games, "kiss butts," "kiss pee pees," and "pee pee in the butt," coerced contact by Rocky, and touchings in similar ways; (5) importantly, plaintiffs' statements were corroborated, at least in part, by the alleged abuser, Rocky; and (6) plaintiffs repeated their statements, at least in part, to parents and physicians/therapists. The court acknowledges, as defendant strenuously points out, that there are inconsistencies in the interviews (see Defs.' Reply, filed Dec. 5, 2005, at 6-9), however, the court must take into account the age of the children at the time, (four years old), and the gravity of the situation for these children. (See Ex. 10 [Dr. Grogan's Report] to PAE [describing the impact of this type of abuse on such young children]); United States v. Dorian, 803 F.2d 1439, 1444 (8th Cir. 1986) (inconsistency did not render a five year old sexual abuse victim's hearsay statements unreliable since "it frequently takes a long time for children to share what is really going on and they may then do so in stages, telling a little more each time.") As the court remarked at oral argument, defendant's view of these videotapes is too mechanical, offering too little leeway for consideration of the children's age and the serious circumstances. See Doe, 976 F.2d at 1079 ("it is to overall consistency that we look, not constancy with regard to each and every detail") (emphasis in original).
Plaintiffs offer testimony from their expert, Dr. Grogan, as to the reliability of the process used. (Exs. 3, 10 to PAE.)
The court notes Dr. Grogan reviewed the tapes and concluded that the statements of the children bore remarkable similarities and were corroborative of each other (Ex. 10 to PAE.)
Finally, the court does not consider persuasive defendant's reliance on Mr. Mowry's interrogatory response that "based on the age of the children, it would be very hard for me to say any of the interviews were `trustworthy' statements." Defendant takes this statement out of context. Mowry's response to interrogatories, construed as a deposition on written questions, was in reply to the question: "Please set forth each and every step you took to obtain a trustworthy forensic statement from [N.S. and D.T.] when you interviewed him on videotape in the course of the . . . [OSI investigation]." Mowry's complete response was as follows:
[H]owever, there is an important aspect which I think needs clarification. The facts inserted in the Report of Investigation (ROI) were facts AS presented by the witnesses and victims in this case. I cannot state that any of my actions made their forensic videotape statements "trustworthy." I have opinions pertaining to this case that were never contained in the ROI (we don't report opinions, just facts). I took all the steps I could with all the VERY young children in this case, but based on the age of the children, it would be very hard for me to say any of the interviews were "trustworthy" statements.
(Ex. 12 to PAE.) Thus, Mowry's response is not contrary to the court's findings. He simply states his opinion that based on the children's age it is not possible to say definitely that their statements are trustworthy. Similarly the court does not find that the videotaped interviews are per se trustworthy, rather that, based on the totality of circumstances, addressed above, "sufficient" guarantees of trustworthiness are present. Doe, 976 F.2d at 1080-81.
As to the remaining elements of FRE 807, they are easily met (indeed, defendant did not argue said elements could not be met; rather its argument focused only on the initial inquiry of "trustworthiness"): The videotapes interviews address a material fact — the alleged abuse. The videotapes are arguably the most probative evidence on the issue of abuse since the statements were made close in time to the alleged events, rather than five years later at the time of N.S.' and D.T.'s depositions. Also, considering the children's age, only four years old, the statements likely have more indicia of trustworthiness then than they do now (5 years after the events). Likewise, the court considers significant that plaintiffs did not simply repeat in their depositions what their parents could have easily "coached" them to testify (see Doe, 976 F.2d at 1079 ["`Consistency does not always guarantee trustworthiness; it could be evidence that the statements were rehearsed.'"]); in failing to recall the abuse, the children arguably appear more credible. Lastly, the interests of justice are served in introducing the evidence, namely the protection of minors who suffered child abuse.
For largely the same reasons, N.S.' and D.T.'s statements to their parents would also be admissible under FRE 807. Doe, 976 F.2d at 1080-81 (admitting three year old child's statements to mother under FRE 807). Specifically as to the trustworthiness of the statements, they were made on the alleged day of the incidents, they were highly descriptive and detailed, plaintiffs acknowledge their involvement and compliance with Rocky's demands, and the statements were unsolicited.
Finally, regarding plaintiffs' (and their parents') statements to physicians and/or therapists, plaintiffs argue the statements are admissible under FRE 803(4) which provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (4) . . . Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Courts have consistently admitted under FRE 803(4) statements made by child abuse victims and their parents to physicans/therapists in the course of treatment of the child.See United States v. Renville, 779 F.2d 430, 436-38 (8th Cir. 1985) (statements made by child abuse victim to her treating physician identifying defendant as the abuser were admissible); Morgan v. Foretich, 846 F.2d 941, 948-49(4th Cir. 1988) (child abuse victim's statements about the abuse to her physician should have been admitted despite victim's competency to testify at trial); United States v. Provost, 875 F.2d 172, 176-77 (8th Cir. 1989) (minor sexual assault victim's statements to psychologists and physicians regarding identity of assailant admissible under FRE 803(4)). Plaintiffs proffer evidence that both D.T. and N.S. sought and received psychiatric treatment as a result of the incidents. (Exs. 4, 7, 9 to PAE.) As part of that treatment, plaintiffs and their parents made statements to doctors and therapists about the abuse by Rocky. Said evidence is admissible under the above cited authorities.
B. Standard
The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party.See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party.See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Pending against defendant are the following claims as set forth in plaintiffs' first amended complaint, filed January 30, 2004: (1) First Cause of Action — Negligent Daycare Operation (2) Second Cause of Action — Negligent Childcare; (3) Third Cause of Action — Negligent Hiring; (4) Fourth Cause of Action — Negligent Supervision; (5) Fifth Cause of Action — Abuse of a Minor; (6) Sixth Cause of Action — Intentional Infliction of Emotional Distress; (7) Eighth Cause of Action — Premises Liability; and (8) Ninth Cause of Action — Breach of Fiduciary Duty. Per the court's order of January 7, 2005 (Docket #18), plaintiffs' claims against defendant for the following were dismissed: (1) Seventh Cause of Action — Battery; (2) Tenth Cause of Action — Intentional Misrepresentation; (3) Eleventh Cause of Action — Negligent Misrepresentation; (4) Twelfth Cause of Action — Breach of Contract; and (5) Thirteenth Cause of Action — Negligence Per Se.
It must be noted initially that defendant does not move for summary judgment specifically as to each pending cause of action against it, described above (fn. 13); instead, defendant argues, generally, in the motion that plaintiffs cannot sustain a "negligence claim" against defendant because (1) "nothing consequential happened at [the] daycare" by plaintiffs' own admissions in their deposition testimony and (2) "even if something [actionable] occurred at CDC3, there are no facts to establish [negligence]." (Mem. of P. A. at 14, 16.) Thus, for purposes of resolving the motion only two inquires are relevant: (1) whether a triable issue of fact exists as to instances of "child abuse" and (2) if so, whether a triable issue of fact exists as to defendant's "negligence."
Regarding the first inquiry, the court's evidentiary rulings above are dispositive of the issue. Considering plaintiffs' statements to their parents, to the OCI investigator, and to physicians/therapists, there is ample evidence to raise a triable issue of fact that instances of child abuse occurred at CDC3. Specifically regarding N.S., while defendant is correct that his deposition testimony does not provide a factual basis for his claim, his prior statements to his parents, his videotaped interview, and his statements to his physicians and therapists supply evidence of the abuse. As to D.T., his deposition testimony alone raises a triable issue as to abuse; contrary to defendant's characterization that the described incident was simply "one brief incident [between] two 4-year-olds involving a [game] of `you show me yours and I'll show you mine,'" D.T. is clear that his actions, in pulling down his pants to show Rocky his penis, were not voluntary but coerced by Rocky who would not let him leave the train play-structure without complying with Rocky's demand. Additionally, considering the other evidence which the court finds admissible, including D.T.'s statements to his mother, the OCI investigator, and his doctors and therapists further support a finding of a triable issue of fact as to abuse.
As to the next inquiry, defendant argues that even considering all the alleged evidence of abuse (including what it deems the "inadmissible hearsay evidence"), plaintiffs have no evidence of defendant's negligence. At most, defendant argues the evidence establishes only two events of which the CDC3 was aware: (1) the conversation between Rocky and D.T. wherein Rocky asked N.S. to play a game of "pee pee in the butt" and if he did not play, Rocky would punch N.S. in the face and (2) the incident in the loft between Rocky and D.T. where they were found by Ms. Sam with their pants down (D.T. described to his mother that Rocky had asked him in the loft to pull down his pants and "kiss Rocky's pee pee" which D.T. did and Rocky kissed D.T.'s penis). As to both instances, defendant argues it acted appropriately in response to the complaints.
The government strongly objects, on the basis of inadmissible hearsay, to any reliance on the written report of "Ms. Sam." Ms. Sam's report, written at the direction of Ms. Costa, was not provided to the court as evidence on the motion for summary judgment. Instead, evidence of her observations came in through the deposition testimony of D.T.'s mother and Ms. Costa, who was also told of the incident between D.T. and Rocky by Ms. Sam. In one sense, said evidence is not hearsay as it is not being offered for the truth of the matter asserted but rather as evidence of "notice" and/or a lack of supervision of the children by the CDC3; although, plaintiffs do also seek to rely on Ms. Sam's observations as evidence of the abuse itself. In that regard, the evidence is inadmissible hearsay. However, admission of the evidence is not necessary for plaintiffs to defeat summary judgment. Importantly, D.T. also told his mother about the incident in the loft (which Ms. Sam apparently observed at least in part). That evidence comes in, for the reasons stated above, under FRE 807.
Under the FTCA, liability is determined applying the substantive tort law of the state where the incident occurred, which in this case is California. 28 U.S.C. §§ 2671- 2680. California Civil Code § 1714(a) sets out a basic standard of conduct: "Everyone is responsible . . . for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person." For liability to exist, there must be a legal duty owed which was breached. Nally v. Grace Community Church, 47 Cal.3d 278, 292 (1988). Here, the parties do not dispute that under California law, child development centers are deemed as having a special relationship with the children under their care, and that that special relationship imposes a duty upon the adult care givers to protect the children under their care from harm resulting from third party misconduct that is reasonably foreseeable. See Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662, 665 (2003). Specifically, a daycare center can be liable if a plaintiff establishes that the center's employees negligently failed in their duty to protect and safeguard the children while they were under the center's care and control. Doe v. United States, 838 F.2d 220, 224 (7th Cir. 1988). As in Doe, central to this case is whether CDC3 employees properly supervised the children.
Defendant argues first that plaintiffs have no evidence CDC3 was aware of any problems with Rocky prior to being informed of the above two incidents between plaintiffs and Rocky. Once informed of them, defendant contends CDC3 acted appropriately. As support, defendant points to the evidence that: After her conversation with N.S.' parents, Ms. Costa confirmed that Rocky and N.S. were assigned to separate classrooms; she talked with staff about the incident and notified them about N.S.' parents' concern about Rocky and N.S. being together; and she attempted to contact Rocky's parents. After the report regarding D.T. and Rocky, Ms. Costa asked Ms. Sam to provide a written statement; she immediately contacted the Flight Chief and Family Advocacy Services; she then spoke with Rocky's mother and Rocky was not allowed to stay at daycare that day. Defendant thereafter fully investigated the facility and plaintiffs' complaints through the CDI and OCI investigations. In further support of this fact, defendant offers the declaration of its expert, Toni Koppen, the Chief of Family Member Programs for the Air Force, who concluded that all Air Force policies and procedures were followed in this case (Ex. G to DAE at 4-5.)
Plaintiffs argue, to the contrary, that by application of the doctrine of res ipsa loquiter, defendant's negligence may be presumed. In California, the doctrine is defined by statute as "a presumption affecting the burden of producing evidence." Cal. Evid. Code § 646(b). The presumption arises when the evidence establishes three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to the voluntary action or contribution on the part of the plaintiff. See Brown v. Poway Unified Sch. Dist., 4 Cal. 4th 820, 825-26 (1993). A presumption affecting the burden of proof requires the trier of fact to assume the existence of the presumed fact unless the defendant produces evidence to the contrary. Id. "If the defendant introduces `evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,' the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence." Id. at 826.
Section 646 provides in full: "(a) As used in this section, "defendant" includes any party against whom the res ipsa loquitur presumption operates. (b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence. (c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that: (1) If the facts which would give rise to res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and (2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant."
Here, absent applicability of this doctrine, plaintiffs cannot withstand summary judgment, at least with regard to N.S., as they have not proffered any evidence that CDC3 knew of any wrongdoing by or problems with Rocky, prior to N.S.' parents' complaint on September 18, 2000. Considering the evidence, however, as revealed by N.S. in his videotaped OCI interview, plaintiffs have raised a triable issue of fact sufficient to find that plaintiffs may be entitled to the res ipsa loquiter presumption.
Neither party offers any controlling case law, nor is the court aware of any, either invoking or disallowing the res ipsa loquiter presumption in a case involving similar facts. From the court's research, the most analogous California cases arise in the child dependency context, involving invocation of California Welfare and Institutions Code § 355.1, which has been compared to the doctrine of res ipsa loquiter. See In re E.H., 108 Cal. App. 4th 659, 669-70 (2003). Section 355.1 also creates a presumption affecting the burden of proof. It provides:
(a) Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a) [child at serious risk of physical harm inflicted non-accidently],
(b) [child at serious risk of physical harm for failure to supervise], or (d) [child at risk of sexual abuse] of Section 300 . . .
(c) The presumption created by subdivision (a) constitutes a presumption affecting the burden of producing evidence.
Cal. Wel. Inst. Code § 355.1 (emphasis added). The court finds that this statute, although not directly relevant here, is particularly instructive on the issue of application of res ipsa loquiter in this child abuse case. While the court is cognizant to "avoid applying the res ipsa loquiter doctrine in a way that undermines our system of tort liability based on fault," plaintiffs have done more here than simply "prove that [N.S.] was injured by some unidentified person's negligence." Lamb v. State of Tenn., 2002 Tenn. App. Lexis 738, *22-23 (Oct. 16, 2002).
In Lamb, the plaintiff mother brought suit alleging her mentally impaired daughter was sexually abused while in the custody of the Alvin C. York Agricultural Institute. Plaintiff attempted to invoke the doctrine of res ipsa loquiter to establish the defendant's negligence; however, the court found her showing inadequate in that she failed to establish her daughter was, in fact, injured while in the care of the defendant and that her daughter's injuries were "probably caused" by the defendant's negligence. Id. at *25. However, in so ruling, the court discussed at length the doctrine of res ipsa loquiter, and important to this case, the court did not find the doctrine inapplicable, theoretically, to this type of case. Indeed, the court found that the doctrine would be applicable where a plaintiff brings "home [the negligence] to [the] defendant" and shows "a rational basis for concluding that the negligent conduct that caused the injury is probably attributable to the defendant." Id. at *22-23 ( citing W. Page Keeton, Prosser and Keeton on the Law of Torts § 39 at 248 (5th ed. 1984)). The court finds that this is such a case.
Here, the nature of the incidents between N.S. and Rocky, involving repetitive and elaborate conduct over a short period of time, are of the kind that do not occur in the absence of a daycare provider's failure to properly supervise the children. The court emphasizes that if N.S.' statements in the interview are believed, the serious conduct at issue occurred some 4 to 6 six times over only an approximately two month period; the conduct involved not mere touchings but rather forced penetration by Rocky of his penis into N.S.' buttocks. It is undisputed that both N.S. and Rocky were under the exclusive care and custody of CDC3, and, again, if N.S. is believed, his participation in the conduct was not voluntary or contributory (N.S. described that he did not want to play "butts and pee pees" again; that it was something "bad.") On these facts, as described by N.S. close in time to the events, plaintiffs may be entitled to application of the doctrine and the presumption.
Neither party proffered evidence establishing the dates when plaintiffs and Rocky attended CDC3. However, at oral argument, plaintiffs' counsel represented that N.S. and Rocky were together at the facility for approximately two months, and D.T. and Rocky were together at the facility for approximately one month. Defendant's counsel did not object to this representation to the court.
As to D.T., it is not necessary to turn to the doctrine of res ipsa loquiter because plaintiffs have proffered sufficient evidence to raise a triable issue of fact that defendant acted negligently in responding to N.S.' report and that negligence caused the harm to D.T. days later. Specifically, plaintiffs proffer evidence that: Ms. Costa did not make a formal complaint as to the incident between Rocky and N.S. because she did not, at the time, consider it abuse; she did not ensure that thereafter Rocky was more closely monitored; she did not talk with Rocky's parents about the incident; yet, she later testified at her deposition that the incident between Rocky and N.S. was a "red flag" for abuse. Just days after the incident between N.S. and Rocky, a much more serious incident occurred between Rocky and D.T.. Considering this evidence, a reasonable trier of fact could find that proper supervision of Rocky could have prevented the abuse of D.T. on September 20, 2000.
Plaintiffs additionally rely on the CDI report to argue that defendant negligently maintained its facilities in that the loft and train play-structure prevented the visual observation of the children at all times. The court does not rely on said report in ruling on the motion as neither plaintiffs nor defendant (who cites the report as evidence of CDC3's proper investigation of the incidents) established its admissibility. While the report may well qualify under the business records exception to the hearsay rule and/or as an admission of a party opponent that showing was not made by the parties on the motion. Nevertheless, the report is not necessary for plaintiffs to withstand summary judgment.
Thus, the court cannot find with respect to D.T. that as a matter of law defendant was not negligent. Rather, a reasonable trier of fact, viewing the facts in the light most favorable to plaintiffs, could find that CDC3 should have done much more after the report of the incident between Rocky and N.S.. Indeed, if plaintiffs' evidence is believed, all that was done was to ensure the two children were in separate classrooms; they continued, however, to share time on the playground. Arguably, additional monitoring of Rocky was warranted in light of his violent threat to punch N.S. if he did not play a very descriptive "game" of "pee pee in the butt." A conversation with Rocky's parents never took place, and just days later, (as told by D.T. to his mother) Rocky forced D.T. to kiss Rocky's penis and D.T. kissed Rocky's penis. With respect to D.T.'s claim, said evidence establishes a triable issue of fact as to CDC3's negligence.
CONCLUSION
For the foregoing reasons, plaintiffs' motion to re-open discovery is DENIED. Defendant's motion for summary judgment is DENIED.IT IS SO ORDERED.
The United States of America is the sole remaining defendant; the other named defendant in the complaint, Child Development Center Number Three was dismissed pursuant to the court's order of January 7, 2005 (granting the government's unopposed motion to dismiss said defendant and certain causes of action against the government).