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Appellate court allows child molest negligence case to proceed against grandmother

May 29, 2018

A grandmother must face a negligence claim filed by her daughter and her granddaughter after the Indiana Court of Appeals found issues of fact as to whether the grandmother negligently allowed her grandchild to be molested by her husband, who she knew had a previous child molesting conviction.

After molesting his niece on multiple occasions in 1980, Robert Whipple pleaded guilty to Class B felony child molesting and was sentenced to counseling instead of incarceration. Then in 1991, he married Mary Whipple, whose daughter, A.M.J., moved to Indianapolis to help care for the ailing couple.

A.M.J.’s daughter, D.H., often spent the night at the couple’s home, and in December 2009 she began staying with the elderly couple while A.M.J. was at work. There was often a one-to-two-hour period where D.H. was left alone with Robert, and during those times he molested 13-year-old D.H. on 12 occasions.

Robert threatened to kill A.M.J. if D.H. reported the molestations, so it was two years before the child reported the abuse and Robert was arrested. He was eventually found guilty of three felony counts of child molesting and was sentenced to 35 years in the Indiana Department of Correction in May 2013, and one month later D.H. and A.M.J. sued both of the Whipples for damages.

Among the claims in the complaint was a negligence claim against Mary, who allegedly knew or should have known that her husband was abusing the child, yet failed to warn either D.H. or A.M.J. of the danger he posed. Robert died in 2017, so Mary alone moved for summary judgment, which the Madison Circuit Court granted.

A.M.J. and D.H. challenged that ruling, pointing to testimony from a law enforcement officer who said he had the “impression” – based on interviews with Robert and Mary – that Mary knew about Robert’s prior molestations before leaving him alone with D.H. Mary argued the officer’s “impressions” were inadmissible hearsay and were in violation of the Indiana Dead Man’s Statute, but Court of Appeals Judge Margret Robb wrote Tuesday that those arguments were waived.  Waiver notwithstanding, Robb said the “impression” testimony was not improper opinion testimony because it was “rationally based” on the officer’s perceptions of the conversations with Mary and Robert.

Robb then wrote that the trial court erred in granting summary judgment to Mary because genuine issues of fact remain on several issues.

First, considering that Mary repeatedly invited D.H. to stay with her and told A.M.J. that it would be safe for the child to be with Robert, the court determined that a factfinder could conclude that A.M.J. entrusted D.H. to Mary. Further, the facts create a question as to whether Mary engaged in “affirmative, deliberate conduct” to protect D.H. from a foreseeable criminal attack, Robb said.

The court then found evidence to support a finding that Mary developed a “special relationship” with D.H., but breached her duty of care when she allowed D.H. to be left alone with her husband, who she knew had a history of molesting children.

“Here, we conclude that because the record contains conflicting evidence regarding Mary’s role in Child being left alone with Robert and whether Mary knew or should have known about Robert’s past, both components of proximate cause – causation in fact and scope of liability – remain questions of fact for the jury,” Robb wrote, addressing the appellants’ final argument. “Accordingly, the trial court’s grant of summary judgment was inappropriate.”

The case of D.H. a Minor by Her Parent, A.M.J., and A.M.J. Individually v. Mary Whipple and Robert Whipple (Deceased), 48A05-1706-CT-1345, was remanded for further proceedings.

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