No.
95-145
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
JOANN R. WERREand JOHN D. WERRE,
Respondents
Plaintiffs,
Cross-Appellants,
and
v.
MARGARETR. DAVID, Individually
and
as Personal Representative
of the
Estate of KENNETH C. DAVID,
Defendants
APPEAL FROM:
and Appellants.
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;
Montana (argued)
Murray
& Kaufman,
Kalispell,
For Respondents:
Joe Bottomly;
Bottomly
Montana (argued)
Law Offices,
Kalispell,
For Amicus Curiae:
Linda Mangel, Attorney
at Law, Seattle
Attorney
at Law, Missoula,
Joan Jonkel,
(for Northwest
Women's Law Center)
Washington
Montana
David R. Paoli, Attorney
at Law, Missoula,
(for Montana Trial
Lawyers Association)
Submitted:
Decided:
Filed:
Montana
November 16, 1995
March 14, 1996
Justice
Karla
M. Gray delivered
Margaret
R. David
representative
Flathead
entered
County,
but
cross-appeals,
unless
Margaret's
(John)
and as personal
of Kenneth C. David
verdict
(Estate),
Judicial
awarding
appeals
District
Court,
Joann R. Werre
(Joann)
damages in the amount of $250,000.
requests
we reverse
appeal.
of the Court.
individually
by the Eleventh
on a jury
and John D. Werre
raises
(Margaret),
of the Estate
from the judgment
the Opinion
that
we not
and remand for
We affirm
address
the
a new trial
and, therefore,
Joann
issues
she
as a result
of
deem the cross-appeal
withdrawn.
We restate
1.
for
the issues
on appeal
Court
Did the District
a directed
time-barred
verdict
pursuant
as follows:
in denying
err
on the basis
that
Margaret's
whether
Joann's
MCA, was a question
to § 27-2-216,
motion
claim
of fact
was
for
the jury?
2.
Did the District
provisions
of § 27-2-216,
intentional
sexual
3.
Did
to exclude
reference
a
directed
Court
that
negligence
regarding
verdict
abuse its
the tolling
claims
discretion
Dr. Dennis Malinak's
to his
Did the District
5.
for
to edit
Did the District
evidence
in concluding
MCA, include
the District
motion
certain
err
based on
abuse?
Margaret's
4.
Court
conversation
Court
on
err
the
individually?
2
marital
in denying
negligence
denying
testimony
Margaret?
discretion
Joann and John's
Court
deposition
with
abuse its
in
in excluding
problems?
Margaret's
claim
against
motion
her
6.
Did
the
District
Court
err
in
instructing
Did
the District
Court
abuse its
the
jury
on
causation?
7.
Margaret's
motion
children,
eight
including
years
called
Ben Carkuff
old,
Joann.
(Ben) in 1945 and they
during
weekly
visits
stopped
visits
grandparents'
to Joann's
paternal
Margaret
they and Margaret's
to Kalispell,
married
children,
of
her
could
six
to Ben's
parents'
home ceased after
Kenneth David
including
(Kenneth)
Joann,
to
whom she
home.
in 1957 when the family's
weekly
Margaret
in 1957 and
moved from Minnesota
Montana.
When Joann was approximately
Margaret
had four
abused by Ben's brother,
The abuse by Uncle Francis
Ben.
denying
When Joann was approximately
she was sexually
Uncle Francis,
divorced
in
a new trial?
married
Margaret
for
discretion
asked Kenneth to "give"
children
except
be alone
with
occasion.
Joann several
for
Kenneth
fourteen
years
not
tell
until
anyone
1989,
recommended
She took all
cream so that
had sexual
worker,
to discuss
about
the
Joann
Joann
abuse by either
John about
see Carol
intercourse
Kenneth
Uncle
Lee
years
her
old.
uncle
Francis'
(Lee),
also
Kenneth
with
or
abuse.
a clinical
fondled
She did
Kenneth
John
social
the abuse.
Lee began counseling
diagnosed
incident,
John when she was seventeen
when she told
that
that
ice
old,
times.
Joann married
After
to
Joann sex education.
Joann out
Joann.
Joann on this
twelve
as
having
Joann in May of
an
adjustment
3
1989.
disorder
She originally
with
mixed
emotional
Joann
features.
with
In November of
post-traumatic
stress
Joann's
mental
Francis
confronted
abuse by Kenneth
did
mental
Margaret
and Uncle
not deny that
and,
the
further,
that
abuse by Uncle
that
either
abuse
disorders.
and Kenneth
Francis
he sexually
diagnosed
She concluded
were caused by both
have caused Joann's
Joann
Lee further
disorder.
and the abuse by Kenneth
could
disorders
1989,
regarding
the
in November of 1989.
abused Joann.
Kenneth
sexual
Kenneth
died
in July
of 1990.
In December of 1989, Joann became an inpatient
Hospital
(Glacier
twenty-two
disorder.
remained
time,
her.
Dr.
Malinak
personality
agreed
she
that
treated
borderline
where
During
days.
psychiatrist,
later
View),
disorder
with
Lee's
Dr. Malinak
approximately
Dennis
Dr.
Malinak,
diagnosed
that
of
disorder;
he
Francis
was a major
abuse
a
the abuse by Uncle
both
and,
Kenneth's
with
stress
factors
that
Joann
a
post-traumatic
and the abuse by Kenneth were causal
further,
View
for
and an adjustment
diagnosis
opined
at Glacier
in Joann's
disorders
cause
of
those
disorders.
On September 3, 1992, Joann filed
individually
and as personal
As subsequently
intentional
or,
of
alternatively,
Kenneth's
During
tort
refined
the
sexual
jury
representative
in the Pretrial
sexual
Order,
conduct
abuse and failing
against
Margaret
of Kenneth's
abuse against
negligent
trial,
a complaint
Joann alleged
Kenneth
by
Estate.
and intentional
Margaret
in
aiding
to use due care to protect
the District
4
Court
directed
the
a verdict
her.
in
Margaret's
favor
individually.
on Joann's
The jury
and that
Margaret
Margaret
appeals
as personal
are
set
found
that
was negligent;
in both
her
below
tort
Kenneth
it
claim
against
sexually
awarded
her
abused Joann
$250,000
in
damages.
where
individual
capacity
and her capacity
of Kenneth's
representative
forth
intentional
Estate.
Additional
necessary
for
our
facts
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
contends
filed
this
that
discovered
the
that
argues
her
that
favor
injuries
prior
as a matter
and all
1254, 1260 (citing
493,
649 P.2d
directed
P.2d
(1992),
1319).
if
and Cattle
432,
435
only
which
A district
substantial
221,
Simchuk
v.
5
she
a verdict
in
MCA.
is
from
a complete
an issue
the
199 Mont.
must deny a motion
Angel
evidence
267 Mont.
Island
party.
97, 107, 890 P.2d
Guard (1982),
in the
to
evidence
to the opposing
270 Mont.
(1994),
833 P.2d 1587).
sexual
basis,
submitting
conflicts
Co. v. Maxwell
(quoting
253 Mont.
court
Joann
childhood
to direct
can be drawn
(1995),
that
when there
most favorable
P.S.
Margaret
On that
§ 27-2-216,
Jacques v. Montana Nat'1
verdict
Fox Grain
proper
in a light
v. ALSC Architects,
of 1989.
which would justify
inferences
must be considered
Pierce
is
1992.
establishes
was required
of law under
verdict
3,
were caused by the
Court
absence of any evidence
a jury,
evidence
to September
the District
A directed
on September
undisputed
her
abuse by Kenneth
action
for
a
exist.
528, 533, 885
Community
Ass'n
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:
.
.
.
3 years
after
the plaintiff
discovers
(b)
reasonably
should have discovered
that the injury
caused by the act of childhood
sexual abuse.
In order
motion
for
the District
for
evidence
a directed
of
connection
after
between
is
evidence
to have properly
verdict
record
September
It
Court
that
in
Joann
Kenneth's
indicating
that
not
contends,
Margaret's
there
discover
examination
Joann testified
prior
to
that
she saw in 1970 about Kenneth's
men as a result
of
that,
some connection
that
Joann connected
problems
must
the
disorders
be
causal
until
that
3,
abuse.
contains
abuse with
1989.
she did not tell
sexual
record
Kenneth's
September
On cross-
a male therapist
conceded
on cross-
saw Lee in May of 1989,
her need for
her
abuse because she distrusted
Joann also
when she first
between
the
counseling
she made
and her childhood
abuse.
However,
discover
that
abuse until
connect
Joann presented
her
after
she was always
1989.
regard,
abuse and her mental
as Margaret
psychological
sexual
did
denied
3, 1989.
true,
examination
this
or
was
mental
her abuse with
Lee opined
disorders
September
aware that
that
evidence
3, 1989.
indicating
were
that
connected
She testified
she had been sexually
her psychological
6
to
Kenneth's
that,
although
abused,
problems
Joann began to connect
she did not
she did not
until
November of
the sexual
abuse by
Kenneth with
Kenneth
in
her mental
November
disorders
of
Joann was hospitalized
in
the
process
disorders.
of
connecting
conclusions
of
of applying
It
the province
is within
evidence.
Barthule
971,
976.
Therefore,
that
the
time
Kenneth's
fact
sexual
for
sexual
the
in this
record
demonstrates
regarding
did not err
the basis
Joann
sexual
abuse and her mental
in denying
the
of § 27-2-216(1)(b),
clinical
and the
with
substantial
that
her
in the
477, 485,
886 P.2d
before
us,
we conclude
a connection
disorders
between
was a question
that
for
MCA.
conflicts
268 Mont.
motion
the
in § 27-2-216,
to resolve
we hold
Margaret's
a
mental
abuse she experienced,
discovered
Accordingly,
her
when Joann discovered
of the jury
she was
regard.
based on the record
jury.
with
he agreed
the time bar contained
which
when
of Margaret
that
and
that,
(Androes),
on behalf
v. Karman (1994),
at
abuse
Androes
were caused by the childhood
for purposes
Margaret
testified
Malinak
the
in the evidence
injuries
her
on cross-examination
review
conflicts
Malinak
testifying
of Lee and Dr.
This
she confronted
View in December of 1989,
Herman
and therapist
conceded
Dr.
at Glacier
Moreover,
psychologist
Estate,
1989.
after
the District
a directed
of
Court
verdict
on
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
refers
not
argues
only
to intentional
toll
negligence
the
general
actions.
that
the plain
conduct
language
of
and, therefore,
three-year
Alternatively,
7
statute
she
§ 27-2-216,
MCA,
the statute
does
of
limitations
argues
that,
for
if
the
statutory
216,
language
MCA,
establishes
applicability
of
perpetrators
because
only
that
contends
negligence
Court
claims
done
of
that
5 27-2-216,
under
perpetrators
of
law to determine
271 Mont.
if
its
sexual
We review
a
the court's
MCA, includes
conduct
to limit
specifically.
the law is correct.
Dep't
alleges
be maintained
had intended
against
so
conclusions
(1995),
cannot
only
abuse and that,
individually
which are based on intentional
to actions
have
either
MCA, includes
her
the claim
the
against
Under
sexual
against
limit
actions
minors.
§ 27-2-216,
concluded
the Montana legislature
solely
v.
claim
to
to
against
of § 27-2-
MCA.
The District
if
provision
that
she was negligent,
§ 27-2-216,
intent
of intentional
remaining
history
legislature's
abuse
perpetrators
Joann's
the legislative
tolling
sexual
Margaret
against
the
the
of
approach,
claims
is ambiguous,
of Revenue
469,
898 P.2d 680,
(1990),
245 Mont.
applicability
abuse,
could
court's
interpretation
474-75,
of
Coal Co.,
Inc.
Steer,
Inc.
686 (citing
470,
it
district
Carbon County v. Union Reserve
459,
and that,
803 P.2d
601,
603).
In interpreting
a statute,
of the words it
1085,
Clarke
contains.
416,
897
P.2d
unambiguous,
to other
we look
1088.
the statute
and logically
for plain
Where
speaks for
meaning,
interpreted,
to the plain
v. Massey (1995),
means of interpretation.
the search
first
the
language
itself
'the
words
8
is
clear
412,
and
not resort
897 P.2d at 1088.
language
giving
271 Mont.
and we will
Clarke,
meaning
It In
used must be reasonably
their
usual
and ordinary
meaning.'"
Gaub v.
Milbank
715 P.2d 443, 445 (quoting
334,
544 P.2d 825,
339,
Section
person
for
appears
to be that
injury
"based on,"
calendar
license
in
shall
quotations
tax
relevant
or
"the
metals
Bd.
by merely
.
State
Eaualization,
Equalization
contended
17
that
P.2d
at
69.
the
of all
upon
the
. during
.
the
that
should
New York
The
the New York prices
9
value
the tax
that
the
of
arguing
by the number of pounds or ounces of metal
of
value
The
Bd. of Euualization,
Essentially
multiplying
the value
. based
of New York
Snidow contended
to,"
gross
.
upon" means "equal
v.
be determined.
products
added).
the
19, 17 P.2d 68.
the market
17 P.2d at 71 (emphasis
of
Snidow et al.
by taking
preceding."
position
under which
was to
that
. . . in the City
§ 27-2-
meaning
93 Mont.
a statute
part,
mineral
immediately
been determined
. .
to."
ex rel.
(1933),
purposes
be determined
metals
year
conduct
ordinary
State
involved
average
sexual
but her unsupported
the
"based upon."
Bd. of Euualization
merchantable
childhood
Margaret
"based on" means "equal
State
. .
of
a
does not advance a
claims.
et al.
[metal]
which
of whether
Bd. of Equalization
stated,
within
"based on" is determinative
State
statute
427,
168 Mont.
time
as a result
have determined
language
for
the
acti on based on intentional
the words
We previously
metals
424,
negligence
definition
of
220 Mont.
of McCabe (1975),
MCA, addresses
"[aIn
216, MCA, includes
statutory
(1986),
In re Matter
who has suffered
11 The meaning of
Co.
828).
27-2-216,
abuse must bring
Ins.
price
should
have
of
produced.
State
"based
the
State
Board
of
be used as
a base
for
determining
Montana
"based upon" means a starting
of
Eaualization,
accepted
starting
17 P.2d
meaning
point
of
we have
Moreover,
the
. . . .'I
point
at
70.
indicated
thus,
(1936),
103 Mont.
214,
State
of
in
Margaret's
Bd.
in this
ordinary
the dictionary
on which
line
.'I
from which
a start
that
point
on" in § 27-2-216,
101,
MCA.
language
intentional
point
the plain
an
or
are
synonymous
Co. v.
Gas Dev.
205.
Thus,
we
similar
to
meaning of "based on."
regarding
is
"based upon"
"Base"
the
consistent
is defined
with
as "that
. . the point
FOUNDATION
DICTIONARY,
initial
17 P.2d at 73.
Bd. of Eaualization
of
ordinarily
an argument
is made in an action
or
or undertaking
180 (1971)
. .
Accordingly,
meaning of "based on" is an initial
affirmatively
MCA.
and declare
not
therein,
204,
Bd.
or
or foundation.
The legislature
ascertain
62 P.2d
or stands:
the plain
is
Pac. R.R.,
of "base."
rests
"the
and "upon"
Eaualization
THIRD NEW INTERNATIONAL
we conclude
starting
218,
meaning
definition
something
WEBSTER's
Northern
in State
and accepted
upon'
"on"
case regarding
Our determination
that
that
State
Bd. of Eaualization,
interchangeable.
Co.
arguing
determination.
'based
that
and,
rejected
for
We stated
words
State
essentially
values,
Our role
what is
. . . to omit
We conclude
used
in
conduct"
or foundation
§
chose to use the words
in interpreting
in terms
or in
statutes
substance
what has been inserted."
under
that,
the
MCA,
27-2-216,
if
intentional
for
the claim.
10
plain
an
is
meaning
abuse is
is
"to
contained
Section
action
sexual
"based
of
l-2the
"based
the
starting
on
Joann's
Here,
exist
absent
the
point
under
the plain
require
therein,
thus exceeding
Section
l-2-101,
Kenneth
is
only
P.2d
the
Inc.
initiating
claim
statutes
1029
Section
Crist
(citing
(1975),
27-2-204,
both
language
argument
166 Mont.
104,
MCA, provides
and
that
would
abuse
claim
in
191 Mont.
of
MCA.
a vacuum.
matter,
210,
212,
Townsend v.
622
D.A.
531 P.2d 370).
the
intentional
limitations
tort
periods
actions.
part:
.
(3) The period prescribed
for the commencement of
slander,
an action
for libel,
assault,
battery,
false
imprisonment,
or seduction
is within
2 years.
11
We
giving
(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.
.
by
against
of § 27-2-216,
be read
City
§ 27-
statutes.
sexual
negligence
ex rel.
is,
"based on" contained
to the same subject
State
against
conduct
intentional
Segna (1981),
the
MCA, "based
in interpreting
the purview
is
Margaret
intentional
MCA, cannot
v.
claim
against
not
stated
Joann
in 5 27-2-216,
Joann's
relating
would
Kenneth;
negligence
role
is within
by
Margaret's
the
for
negligence
in pertinent
provides,
Since
Margaret
abuse of
claim
for
our judicial
§ 27-2-216,
to each.
Davidson,
claims
foundation
Joann's
1028,
Joann's
the express
MCA.
Moreover,
effect
for
To accept
us to disregard
must harmonize
sexual
negligence
conduct."
MCA, includes
Margaret,
abuse
meaning of the language
on intentional
2-216,
intentional
Joann's
against
sexual
or foundation
Thus,
Margaret.
claim
intentional
Kenneth's
differently,
starting
negligence
for
It
Section
27-z-204,
statute,
which encompasses negligence
references
MCA (emphasis
the tolling
provisions
engrafts
the
§ 27-2-216,
statute
of
limitations
Margaret's
against
perpetrators
§ l-2-101,
cross-reference
reading
interpretation
these
of the plain
general
To
limited
accept
to claims
us to contravene
from § 27-2-204(l),
by the legislature.
MCA, is plain,
intentional
childhood
sexual
Court
not
See
27-2-216,
and certain
actions
that
negligence
we hold
the
§ 27-2-216,
and that
it
is not
perpetrators
that
tolling
claims
our
used in § 27-2that
against
Accordingly,
in concluding
MCA, include
buttresses
We conclude
direct
tort
abuse.
err
together
basis.
unambiguous,
to
did
statutes
meaning of the language
MCA, on a stand-alone
sexual
MCA, is
enacted
cross-
the
actions.
by omitting
this
MCA.
Thus,
limited
onto
abuse would require
statutes
of
MCA, and thereby
provision
§ 27-2-216,
(1)
specifically
of § 27-2-216,
negligence
of sexual
in interpreting
MCA, the specific
216,
that
Subsection
actions,
MCA, tolling
for
contention
our role
added).
based
the
District
provisions
on
of
of
§
intentional
abuse.
3.
Did the District
Court abuse its
discretion
in
denying
Margaret's
edit
motion
to
Dr.
Malinak's
deposition
testimony
to
exclude
reference
to
his
conversation
with Margaret?
In
September
deposition
deposition
deposition,
conversation
pursuant
at
of
to a notice
trial
Dr.
1994,
as
video-taped
indicating
perpetuated
Malinak
he had with
Joann
testified
Margaret
12
while
Dr.
the potential
use of the
testimony.
regarding
Malinak's
During
a
the
telephone
Joann was hospitalized
at
Glacier
View.
Specifically,
was aware that
that's
[the sexual
why she took
Malinak's
during
Approximately
Edit
Deposition."
leading,
called
responded
could
did
later,
a conclusion
have established
not
Margaret
in fact,
object
filed
of Dr. Dennis Malinak
had Margaret
that,
[Margaret]
to Dr.
the deposition.
She contended
for
he "sense[dl
Margaret
two weeks
to Testimony
that
abuse1 was going to happen and,
the kids."
testimony
Objections
he stated
that
objected
a sufficient
& Motion
Joann's
and called
"Defendant's
for
for
Order to
questions
were
speculation.
during
Joann
the deposition,
foundation
for
Dr.
to
she
Malinak's
testimony.
The District
Malinak's
Court
ruling
to determine
Matter
of
(Mont.
1995),
State
v.
the
Seizure
argues
about
Joann constitute
court's
abused its
discretion.
of
Malinak's
152,
whether
338,
on
noted,
during
his
(citing
380).
Malinak's
sexually
abuse
as to what was in her
Margaret
did not object
to
deposition.
It
in depositions.
or answers,
13
Currency
1065
Dr.
would
addresses
removed,
States
that
Dr.
In the
863 P.2d 378,
appeal
however,
edit
evidentiary
1063,
341,
conclusion
M.R.Civ.P.,
be obviated,
United
she knew Kenneth
an inadmissible
the form of the questions
in
52 St.Rep.
generally
Rule 32(d)(3)(B),
might
$23,691.00
261 Mont.
testimony
and irregularities
court
148,
As we previously
which
a district
Passama (1993),
impressions
Dr.
motion
the
905 P.2d
Margaret
mind.
if
Margaret's
We review
testimony.
denied
the effect
provides
that
any error
. . . and errors
or cured
if
of errors
promptly
"in
of any kind
presented,
are
waived
taking
unless
of
objections
responses
questions
M.R.Civ.P.
any errors
Malinak's
its
to
discretion
deposition
posed
and
the deposition
in denying
evidence
to
trial,
of the
that
it
and that
Joann
marital
filed
to evidence
Margaret
of Dr.
Court did not abuse
Dr.
Malinak's
was relevant
Court
that
brother
prior
refused
to exclude
exclude
she and John experienced
on the
to issues
granted
contributed
contends
of Joann's
that
to Glacier
to,
that
View.
the
Joann's
counseling
the District
discord
exclusion
except
in
limine
Court
with
affair
and that
staying
with
However,
her
the court
discord
on a
abuse--caused,
or
bills.
erred
on a limited
of such evidence
14
and damages
the marital
sexual
responded
it.
motion
from John while
than
marital
the court's
Margaret
by excluding
about whether
basis--rather
Margaret
limine
of causation
Joann's
herself
evidence
substantially
in
John had an extramarital
to her admission
stand-alone
its
discretion
in
Joann and John's
and inflammatory.
Joann had a gun to protect
argues
by Rule
to
her case would be prejudiced
The District
evidence
Malinak's
that
to edit
a motion
problems
was irrelevant
the evidence
regard
Dr.
testimony.
Prior
that
the
M.R.Civ.P.
of portions
motion
Did the District
Court abuse
4.
excluding
certain
evidence regarding
marital
problems?
basis
to
therefore,
the District
Margaret's
made at
as required
the admissibility
We hold that
is
32(d) (3) (B),
We conclude,
regarding
testimony.
thereto
Rule
were not made during
32(d) (3) (B),
waived
objection
deposition."
the
Margaret's
reasonable
in excluding
basis.
precluded
She
the
from
j U~Y
determining
attributable
to
A district
abuse.
admissibility
evidence
et
court
State
(citations
bills
than
in
a trial
court's
abused its
236 Mont.
91,
were
the
sexual
to
discretion
we review
(1989),
evidence
"Relevant
M.R.Evid.
make the
that
proving
the
the test
determining
94,
the
exclusion
discretion.
Fitzpatrick
Margaret
Here,
had an extramarital
from
claimed
to
or
is
of
Jacobsen
769 P.2d
694,
187,
that
695
consequence
or less
401,
to
probable
to
the
than it
M.R.Evid.
We have
and experience,
it
is
207,
of evidence
offered."
State
606 P.2d 1343,
in
v.
1354.
evidence--that
John
Joann had a gun to protect
the
to
that
issues
prove
the
that
injuries
of
through
causation
evidence
problems
marital
disorders.
in proving
any tendency
by logic
to
problems
her
of
the excluded
relevant
caused
having
Rule 402,
an item
and that
mental
at trial.
"whether
which
was attempting
has some value
contributed
for
186 Mont.
marital
is
Rule
as determined
a cause of Joann's
arguably
that
of relevance
John--was
Joann and John's
fact
more probable
affair
Margaret
damages.
means evidence
any
proposition
(1980),
admissible
evidence."
any value,
the
herself
of
of the action
be without
have
is generally
evidence
existence
determination
least
rather
has wide
the court
counseling
omitted).
Relevant
stated
if
Joann's
discord
of evidence;
v.
would
marital
to determine
al.
will
her
that
The excluded
Joann's
and
in
marital
and
of
were at
evidence
problems
determining
her
admissibility
of
damages.
There
is
an exception,
however,
15
to
the
relevant
its
evidence.
probative
"Although
value
is
relevant,
evidence
substantially
confusion
outweighed
of the issues,
unfair
prejudice,
. .
may be excluded
by the
if
danger
. 11 Rule 403, M.R.Evid.
In Kimes v.
held
the
that
it
the evidence
poor
was relevant
environment
a
medical
the testimony
witnesses
indicated
in
testify
regarding
although
no evidence
poor
at
home
705 P.2d at 110.
poor home environment
by the
to establish
Joann's
this
case,
may
however,
claimant;
a medical
even Margaret's
that
Joann's
marital
Androes
disorders.
admitted
on
marital
significant
they
we
connection.
705 P.2d at 110.
not
since
108,
that,
between
Kimes,
that
exhibited
was not sufficient
Similarly,
did
evidence
on the basis
symptoms.
the jury
705 P.2d
to admit
connection
and the claimant's
expert
330,
under Rule 402, M.R.Evid.,
cause symptoms such as those
Kimes,
217 Mont.
home environment
established
In Kimes,
(1985),
was an abuse of discretion
claimant's
trial
Herrin
or misleading
of
discord
factor
the marital
could
conclude
Court's
in
caused
causing
problems
under
discretion
extramarital
from John prior
affair
her
some stress,
mental
on the question
facts,
exclude
and that
than
the
it
her
mental
while
it
was not
disorders.
impact
that
probative
16
factor,
of damages.
the
We
District
John
Joann had a gun to protect
to Glacier
a
Moreover,
causal
was within
evidence
witness
that,
cross-examination
her
to her admission
and more prejudicial
caused
a significant
these
to
problems
were not
not significantly
that,
own expert
had
an
herself
View as both misleading
under
Rule
403,
M.R.Evid.
Accordingly,
we hold
discretion
marital
that
in excluding
the
this
District
Court
particular
did
evidence
not
abuse
regarding
its
Joann's
problems.
Finally,
Margaret's
establishing
discord,
a basis
rather
upon which
than sexual
and damages ignores
testified
that
View centered
conceded
problems,
a considerable
her
including
session
and,
Thus,
substantial
evidence
were attributable
marital
that
in
divorce,
by
to
all,
that
mental
being
her
or,
at Glacier
Lee also
her
marital
every
John had caused
verbally
argument,
Malinak
virtually
that
and
physically
Margaret
presented
of Joann's
a portion,
discord
marital
therapy
during
opined
marital
Dr.
discussed
from
disorders
problems.
Joann
addition,
to
find
caused Joann's
and John's
contrary
that
could
amount of Joann's
injury
abusive.
she was precluded
On cross-examination,
a possible
psychological
bills
abuse,
the record.
around
that
the jury
on cross-examination
counseling
Joann
contention
counseling
rather
than
to sexual
abuse.
Did the District
Court err in denying Margaret's
5.
motion for a directed
verdict
on the negligence
claim
against her individually?
Joann contended
she breached
moved for
present
negligent.
evidence
at trial
her parental
a directed
evidence
verdict
from
The District
regarding
go to the jury
duty
that
Margaret
was negligent
of care to protect
Joann.
on the
Joann
failed
to
that
she
was
basis
that
which
a
jury
could
find
Court
concluded
that
there
Margaret's
in that
role
and denied Margaret's
in Kenneth's
motion
for
Margaret
was sufficient
abuse of Joann to
a directed
verdict.
Margaret
argues
that
the undisputed
that
she asked Kenneth to discuss
such
evidence
is
finding
of
District
Court
As discussed
erred
above,
is a complete
as a matter
On that
in denying
with
Joann and that
law
she
only
to
support
asserts
that
a
the
for
a directed
is proper
verdict
absence of evidence
established
of
basis,
her motion
a directed
Pierce,
to a jury.
sex education
insufficient
negligence.
evidence
only
where there
submitting
the issue
justifying
890 P.2d at 1260 (citing
Jacaues,
verdict.
649 P.2d at
1325).
Margaret's
record
"undisputed
before
Margaret
her under
video-taped
with
that
abuse of Joann was going
issue
that
of Margaret's
that
for
a
there
Court
directed
she
was sufficient
did
verdict
on
err
the
Joann's
in denying
from
sexual
testimony.
to submit
Accordingly,
negligence
Dr.
he sensed
evidence
to a jury.
not
having
Kenneth's
corroborates
the
we hold
Margaret's
claim
the
confronted
admitted
that
she was aware that
to occur
ignores
of sex education.
testimony
negligence
the District
when
the pretext
deposition
Margaret
We conclude
that,
simply
in November of 1989, Margaret
Kenneth have sex with
speaking
argument
testified
Joann
us.
and Kenneth
Malinak's
evidence"
motion
against
her
individually.
Margaret
evidence
negligent.
mind might
also
does
not
argues
support
Substantial
accept
generally
the
evidence
as adequate
based on weak and conflicting
that
jury's
is
18
verdict
evidence
to support
evidence.
substantial
that
which
a conclusion
King v.
credible
she
was
a reasonable
and may be
Zimmerman (1994),
266 Mont.
54, 60, 878 P.2d 895, 899 (citing
(1993) I 259 Mont.
to the evidence
the province
Thayer
Hicks
v.
not reweigh
243 Mont.
Fisher
The weight
of witnesses
we will
(1990),
v. Boise Cascade
220).
856 P.2d 217,
and the credibility
Stewart
1321,
265,
of the jury;
v.
(citing
259,
Arnold
138,
(1989),
lie
solely
conflicting
153,
432,
within
evidence.
793 P.2d
235 Mont.
given
784,
436,
793
767 P.2d
1323).
Margaret's
contention
substantial
that
inadmissible,
testimony
have sex with
of Margaret's
Margaret
Malinak's
Dr.
admitted
[Joann]"
credible
in
based
on her
testimony
were
Moreover,
Joann's
1989 that
she "had
[Kenneth]
substantial
credible
evidence
on a stand-alone
evidence
is
otherwise.
constitutes
negligence
substantial
supports
basis.
the
We conclude
jury's
that
finding
that
contends
that
was negligent.
As
her
final
related
Kenneth's
intentional
connection
between
liability
relies
of
portions
argument
and we have concluded
that
Margaret
evidence
argument,
her acts
F.Supp.
348,
caused
by
created
intentional
for
a third
by
the
act
Joann
for
of
and Joann's
those
on Azure v. U.S. Health
1382,
abuse
sexual
on her part
758 F.Supp.
Margaret
person
defendant's
precludes
injuries
injuries
as
that
and is
of law.
She
19
(D. Mont.
within
conduct[,l"
defendant.
(D. Mont.
1991),
1969),
306
"where harm is intentionally
not
imposition
causal
any
a matter
States
any
and precludes
and Human Services
and Deeds v. United
the proposition
breaks
the
the
of
1 iabi lity
scope
third
of
risk
person's
against
the
Margaret's
Margaret
reliance
correctly
superseding
she does
no
not
decided
issues
599 P.2d 362,
Margaret
is
presented
at
As discussed
365.
of educating
to
raise
a fact
above,
we conclude
that
Joann
constituted
an intervening,
which
precluded
of law is without
created
the
such
183 Mont.
for
the
Estate,
which
instruct
discretion
under
the
in
instructing
on the basis
323,
327,
evidence
with
Margaret
with
her
removed
This
jury
where
must be
contact
reason.
was
evidence
regard
intentional
to
acts was
conduct.
On that
argument
Kenneth's
abuse of
that
superseding
cause
of
of liability
Joann's
on her
as a
merit.
On behalf
the
issues
Joann presented
that
imposition
Court
of
Joann]
by Margaret's
Margaret's
6. Did the District
causation?
properly
her
that
of fact;
to have sexual
issue
basis,
court
questions
(1979),
from the house for
the scope of risk
arguments
to
effect
of
her about sex and that
within
matter
due
the
abuse
the harm to Joann caused by Kenneth's
injuries
it
to
trial,
Payne v. Sorenson
children
sufficient
whether
record
present
knew Kenneth intended
in the context
her other
apply
Kenneth's
generally
evidence
by a jury.
[that
cases on intervening,
properly
the
Although
[her]."
Causation
conflicting
from those
of
evidence
by
was
contemplated
is
the rule
mischaracterization
"there
that
states
causes,
continued
on Azure and Deeds is misplaced.
err in instructing
Margaret
she contends
jury
the
on causation.
the
of alleged
jury
20
advances
District
errors
on
a number
Court
not
of
failed
to
court
has
reverse
the
A district
and we will
instructional
the jury
absent
an abuse
of discretion.
P.2d
520,
Cechovic
527,
52 St.Rep.
222).
In reviewing
given
in
their
presented
City
v. Hardin
jury
and
jury
No.
to
award
abused
Joann.
require
the
12, which
Joann
(citing
207,
222,
District
damages if
it
to
find
that
in
Kenneth's
the
(citing
the
211).
by
Kenneth
instruction
of
v.
giving
directed
conduct
imposition
Story
erred
that
Kenneth's
and resulted
injuries
that
jury
527
evidence
856 P.2d 202,
found
contends
at
the
essentially
Margaret
902
the instructions
Court
she contends
1995),
856 P.2d
with
902 P.2d at
the
(Mont.
Arnold,
connection
259 Mont.
that
Inc.
we consider
in
Cechovic,
argues
Instruction
860
instructions,
of Bozeman (19931,
Margaret
854,
entirety
at trial.
&ASSOC.,
sexually
failed
caused
strict
the
to
Joann's
liability
for
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
amount of
money that
would
should
determine
the
compensate her for the injuries,
if any she received,
according
to the further
instructions
I will give you.
While Margaret
causation
finding,
"[iIf
that
sexual
it
that
intercourse
damages, if
this
does refer
In this
instructions.
jury
is correct
regard,
you find
with
instruction
the
jury
instructions
that
. .
[Joann]
527),
it
is clear
Kenneth's
conduct
together,
that
to
the District
.
.
as we must
the jury
court's
(see Cechovic,
caused Joann any damages.
the
knowingly
may determine
conduct."
a
other
instructed
David,
. you
was required
21
the
Court
Kenneth
any, were caused by his unlawful
these
does not require
had
what
Considering
902 P.2d at
to determine
whether
Thus, we conclude
that
the
instructions
liability
for
award
not
Kenneth's
Margaret
"to
did
result
or
the
Estate]
.'I
Instruction
Francis
and certainly
[Kenneth]
or
merely
strict
and,
so,
the
extent
it
did
not
of Joann's
foreclose
Uncle
and
to award all
the jury
Kenneth's
the jury
against
to determine
abuse
caused
from determining
cause.
instructed
the
jury
that
Instruction
No.
23,
which
damages by giving
the
damages
abuse
damages had another
specifically
Francis
the abuse by Uncle
Kenneth's
to which
the jury
[Margaret
directed
whether
apportion
the
against
Francis'
It
Court
either
Uncle
and the Estate.
District
of
the jury
Margaret
portions
of
No. 12 required
did not require
either
damages to Joann;
imposition
No. 12 does not mention
from
if
out
incident,
arising
that
Instruction
damages arising
abuse,
the
conduct.
also argues that
all
in
Moreover,
it
the
could
reads
as
follows:
Where a preexisting
condition
has been aggravated by the
act sued upon, it is your duty, if possible,
to apportion
injury
between
that
the
amount of
caused by the
preexisting
condition
and that caused by the act sued
upon . . .
it
Thus,
jury
is clear
to award all
arose,
against
Margaret
instruct
solely
the court's
instructions
damages, regardless
Margaret
by Uncle
testimony
caused by Uncle
Francis'
from which
the
they
and the Estate.
on her theory
Francis'
did not require
of the source
also seems to argue that
the jury
by Androes'
that
abuse.
that,
that
the District
Joann's
Her theory
in his
abuse.
22
opinion,
Court
injuries
to
were caused
was supported
Joann's
failed
at trial
injuries
were
However,
her theory
did
Uncle
Francis'
that
injuries.
assign
Margaret
Rule
as error
that
party
that
offers
whether
proximate
and
assertion
erred
by failing
sexual
Joann
each
proposed
then withdrew
defendants
Joann's
therefore,
in this
error
reflects
cause-in-fact
and
Margaret
and the court
causation
a revised
Court
regard.
is that
the
to determine
that
objected
Margaret
cause
to Joann's
it.
instruction
Margaret
covering
covering
gave Margaret's
and
proximate
refused
instruction
thereon."
a causation
instruction
she now complains
before
We hold that
"[nlo
on any point
instruction
jury
of law unless
the jury
The record
a
above,
to instruct
properly
may
only
proposed
both
her own
instruction
objection.
As we stated
failure
error
to instruct
her own proposed
The District
party
We conclude,
of instructional
instruction
and offered
conduct.
on any point
both defendants.
causation
"[nlo
abuse of Joann was the cause-in-fact
proposed
covering
cause of Joann's
that
thereon."
cause of her injuries.
instruction
over
provides
from assigning
final
Kenneth's
encompassing
abuse was the sole
an instruction
Margaret's
an instruction
to instruct
is precluded
Court
offer
M.R.Civ.P.,
51,
the failure
Margaret
District
not
party
may assign
of law unless
on appeal,
the
that
party
Having
Rule 51, M.R.Civ.P.
covering
failed
alleged
Margaret's
as error
offers
deficiency
assertion
the
an
to offer
of which
of error
is not
us
the District
Court
did not err
in instructing
the
on causation.
Did the District
Court
7.
denying Margaret's
motion for
23
abuse its
discretion
a new trial?
in
Margaret
motion
not
for
argues
that
a new trial
supported
the District
Court
because the jury's
by the
evidence
prejudice.
Section
new trial
and provides,
MCA, sets
insofar
in denying
$250,000
and was the
25-11-102,
erred
as it
is
damage award was
result
forth
her
of passion
the grounds
relevant
here,
and
for
a
that
[tlhe former verdict
. .
may be vacated and a new trial
granted on the application
of the party aggrieved for any
following
causes materially
affecting
the
of
the
substantial
rights
of such party:
.
.
.
.
(5) excessive
the influence
under
insufficiency
. . . .
(6)
verdict
In considering
excessive
for
that
a motion
of the jury
Ins.
review
Co.
for
if
the evidence
a new trial
court
unless
it
to justify
cannot
appears
210 Mont.
court's
the court
267,
denial
of
abused its
the
based on an allegation
substitute
that
290,
its
of
judgment
the amount awarded
as to shock the conscience.
(1984),
a district
determine
of
damages, a district
so out of proportion
Fire
damages appearing to have been given
of passion or prejudice;
Gibson v. Western
682 P.2d 725,
a motion
discretion.
is
for
738.
We
a new trial
Gibson,
to
682 P.2d at
738.
With
regard
establishes
to the
amount of
the monetary
and her bills
was charged
and that,
in his
testified
that
hospitalization
amount of Joann's
from Glacier
$14,240.55
the jury's
for
opinion,
Dr.
View.
day stay
$900 for
24
record
bills
that
Joann
at Glacier
View
charge.
"services"
Lee testified
View.
the
counseling
testified
was a reasonable
Joann was charged
at Glacier
past
Malinak
a twenty-one
this
verdict,
that
He further
during
her
she charged
Joann
$50
to
counseling
of
1989
$60
was related
and
$3,457.50
for
outpatient
treatment
she may require
state
would
suggest
based
on Lee's
fee
regarding
for
of counseling
these
inpatient
The record
suffering
also
allowing
future
Dr.
Malinak
However,
and Dr.
he
Thus,
Malinak's
Joann would incur
for
four
assumes that
two to four
the
Lee.
or $24,960
This calculation
did
the past,
with
needs,
and that
cost.
Joann in
of counseling
include
intensive
years
session
the next
need for
needs
treatment
treatment
do not
$18,598.05.
years.
cost
Lee's
Moreover,
of
any
future
Joann may require.
contains
Joann endured
Margaret's
Lee.
within
figures
treatment
future
her
care would
her
counseling
totalled
treatment.
a counseling
two years
with
not increase
estimated
for
Joann's
$12,480
fee will
stated
Joann continue
Between May
Joann's
two to four
Lee had counseled
Joann's
approximately
Joann
future
of
abuse.
Thus,
that
inpatient
all
incurred
regarding
a week for
additional
that
sexual
Lee.
opined
twice
since
that
Joann
evidence
Malinak
that,
and
to the date of trial
as to how much Joann's
he did
years
from
presented
Dr.
at least
1994,
bills
treatment.
not opine
of
bills
in counseling
Joann also
session
to her childhood
September
and hospitalization
opinion
each
evidence
as a result
demonstrating
of Kenneth's
the abuse to occur.
In this
the pain
sexual
regard,
and
abuse and
we have
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.
25
286, 297, 456 P.2d 835,
841.
Here,
approximately
35 years
abuse of Joann and the trial
has been impacted
Joann's
with
marital
conflict,
the conflict,
Joann
testified
sexually
abuse,
not
and unable
We conclude
award of $250,000
Accordingly,
effects
case,
of
safe
to trust
that
we hold
in denying
in
that
time
the manner in which
testified
her
sexual
Joann
Lee opined
that,
after
after
home and felt
that
she dealt
sexual
ashamed and nervous
abuse.
Kenneth
Kenneth's
depressed,
others.
substantial
and that
which
to her childhood
She further
feel
during
Kenneth's
the abuse.
or at least
she felt
abused her.
worthless
in this
was attributable
that
she did
discretion
by the
passed between
evidence
supports
the
jury's
the award does not shock the conscience.
the
Margaret's
District
motion
Affirmed.
26
Court
for
did
not
a new trial.
abuse
its
