A.W. v. Marelli

                   THE UTAH COURT OF APPEALS

                                 A.W.,
                              Appellant,
                                   v.
                            MILLIE MARELLI,
                               Appellee.

                                Opinion
                            No. 20220207-CA
                         Filed January 19, 2024

               Third District Court, Salt Lake Department
                   The Honorable Andrew H. Stone
                              No. 190902075

               Michael W. Young, Alan S. Mouritsen, and
                Adam Bondy, Attorneys for Appellant
                Emily Adams, Freyja Johnson,
          Hannah K. Leavitt-Howell, and James I. Watts,
                    Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1     AW 1 alleges that when, as a teenager, she accused her
          0F




stepfather of sexual abuse, her mother, Millie Marelli, maintained
the abuse did not occur and told AW to never speak of it again.
But speak of it AW did—to her biological father, who reported the
abuse to authorities. Ultimately, AW was removed from Marelli’s


1. Dear Reader: Judge Mortensen recognizes that you may be
accustomed to the use of periods after each letter when we use
initials in place of a party or witness name. However, he chooses
to depart from that practice now and in the future. Removing the
periods is both space saving and easier on the eyes.
                          A.W. v. Marelli


home, and not long thereafter she cut off all contact with Marelli.
When Marelli allegedly persisted over a number of years in
making unwelcome contact, AW sued Marelli, claiming negligent
and intentional infliction of emotional distress as well as negligent
sexual abuse. Marelli moved for summary judgment on all claims,
which the district court granted on the basis that AW failed to
establish the required quantum of proof on each claim. AW
appeals, and we affirm.


                         BACKGROUND 2       1F




¶2     AW alleges that in late 2008 or early 2009—when she was
twelve years old—her stepfather (Stepfather) sexually abused her.
When Marelli was hospitalized for several days while undergoing
a medical procedure, she left AW in the care of Stepfather.
According to AW, she became scared of the dark and Stepfather
invited her to sleep in his bed. Once in the bed, Stepfather put his
hand inside her underwear and began touching her genitals.

¶3     Shortly thereafter, AW disclosed the incident to Marelli.
Marelli asked Stepfather what had happened, and he said that he
awoke with his hand on AW and immediately withdrew it. He
explained to AW that it was an accident and apologized. AW says
Marelli and Stepfather told her the abuse never occurred and not
to speak of it again. Marelli did not report the incident to
authorities. Approximately one week later, AW told her father
(Father) about the incident. Father immediately filed a complaint
with the Division of Child and Family Services (DCFS) and sought
a protective order against Stepfather. DCFS made a supported


2. We recite the facts of the case and draw all reasonable inferences
in the light most favorable to AW as the nonmoving party. See
USA Power, LLC v. PacifiCorp, 

, 

 (“[I]n
a summary judgment proceeding, all facts and the reasonable
inferences to be made therefrom should be construed in a light
favorable to the non-moving party.”).


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                          A.W. v. Marelli


finding that Stepfather presented a credible threat to AW’s safety,
but DCFS did not find evidence to support a finding that Marelli
failed to protect AW. Father was eventually awarded sole legal
custody of AW.

¶4     In a sworn declaration, Marelli’s neighbor (Neighbor)
stated that in late 2007 or early 2008, prior to the abuse AW
alleged, she informed Marelli of an incident between her young
daughter and Stepfather. Neighbor explained that her daughter
came home from playing at Marelli’s house with writing and
pictures on her buttocks in the handwriting of an adult. When she
asked her daughter about it, her daughter said that she and
Stepfather were playing a game where the winner wrote on the
other person. Neighbor spoke with Marelli about it, and Marelli
“became defensive,” denying Stepfather had “anything to do with
it.” Marelli blamed Neighbor’s daughter for it, saying she had
“offered herself” to Stepfather. Neighbor said her instincts told
her to stop allowing her daughter to play at Marelli’s house.

¶5      Since losing custody of AW in 2009, Marelli and AW have
not seen one another outside of some initial court-ordered therapy
sessions and a few brief encounters. AW claims that Marelli’s
alleged “denial [of the abuse] and victim blaming behavior are
significant sources of [her] psychological disorders.” Over the
past decade, Marelli has continued to contact AW by sending
letters, birthday gifts, and Facebook messages. AW claims she has
repeatedly expressed her wishes not to have any contact at all. In
Facebook messages from 2011, AW responded to Marelli with
“STOP TALKING TO ME UNTIL U GET RID OF
[STEPFATHER]!!!!!!!” and “STOP IT I WILL BLOCK THIS I AM
NOT AFRAID TO SO STOP!!”

¶6     AW submitted many examples of communication she
received from Marelli over the course of more than ten years.
Those communications included handwritten letters and some
photos with messages written on them, such as the following,
which we present unedited for grammatical errors:



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                          A.W. v. Marelli


   •   [AW] give your mom a call with [heart drawing]
       always mom.

   •   I am sorry that you have forgotten the moments
       when you had with [Stepfather] to be your dad. I
       hope someday you will remember with all my heart
       and soul I loved you and will always love you
       because you are my girly for eternity.

   •   We all make mistakes in life, it is what we learn from
       them is the most important. Forgive yourself,
       forgive me I am truly sorry for all the many tears
       & fears you went through without your mothers
       warmest embrace . . . with love mom.

   •   [Stepfather] sure misses being your dad [heart
       drawing] be kind be forgiving be of great courage.

   •   Oh I miss my little girl that is all grown up. I love
       every min every hour every dam week month
       & year of your life. I hope to enjoy and embrace my
       lovely daughter again to look into your loving eyes
       and find you again. With love Mom.

   •   All my children was mislead away from the true. I
       have been told recently that I am not in reality but
       you see Reality isn’t the truth.

¶7     Some of the photos sent to AW included pictures of both
Marelli and Stepfather. Marelli also sent several publications and
transcripts of public addresses from her religious leaders covering
a wide range of topics.

¶8     AW also asserted that Marelli made two unwanted visits
to her. The first occurred on AW’s sixteenth birthday, when
Marelli went to her school. The second was on her seventeenth
birthday, when Marelli went to AW’s house.



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                           A.W. v. Marelli


¶9     In 2019, AW commenced the present action against Marelli,
claiming intentional infliction of emotional distress (IIED),
negligent infliction of emotional distress (NIED), and negligent
sexual abuse. Marelli moved for summary judgment on the three
claims. Shortly after filing the summary judgment motion, Marelli
sent AW a second box of letters, religious publications, and some
of AW’s old toys. AW argues that even though service of the
complaint put Marelli on notice that her conduct caused AW
distress, she nonetheless sent AW the box full of additional
communication. AW filed a supplemental opposition to the
motion, arguing that Marelli sent the communication with
knowledge that AW did not want any contact with her. Marelli
moved to strike the supplemental opposition, arguing that the
Utah Rules of Civil Procedure allow for only supplemental
authority not supplemental facts.

¶10 The district court allowed the supplemental opposition “in
the interest of justice” and considered it in its decision. The district
court granted Marelli’s motion for summary judgment on all three
of AW’s claims. On the IIED claim, the court concluded that
Marelli’s conduct was not objectively outrageous. The court
concluded that the NIED claim failed because AW did not show
that Marelli’s conduct objectively amounted to the “type of
conduct ‘especially likely’ to cause severe and unmanageable
emotional distress.” Finally, on the negligent sexual abuse claim,
the court concluded there was no support in the record that
Stepfather had a history of inappropriate sexual behavior with
children of which Marelli was aware or that Marelli’s failure to
report the alleged abuse harmed AW. AW appeals.


              ISSUE AND STANDARD OF REVIEW

¶11 On appeal, AW contends that the district court erred in
granting Marelli’s summary judgment motion with respect to
each of her three claims. We review a grant of summary judgment
for correctness, giving “no deference to the district court’s legal



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                          A.W. v. Marelli


conclusions.” Ipsen v. Diamond Tree Experts, Inc., 

,

 (cleaned up).


                            ANALYSIS

¶12 Summary judgment is appropriate where the moving
party shows that “there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). We conclude that the district court
properly granted summary judgment disposing of all three of
AW’s claims against Marelli. We address the IIED, NIED, and
negligent sexual abuse claims in turn.

                               I. IIED

¶13 The district court concluded that Marelli’s conduct was not
outrageous as a matter of law because all Marelli’s “voluminous”
communications with AW “plainly represent attempts by
[Marelli] to reconcile with her daughter.” AW contends that the
district court erred because it (1) stepped into the role of the jury
when determining that all the communications were an attempt
to reconcile, (2) failed to consider other evidence of Marelli’s
outrageous behavior, and (3) applied an unnecessarily restrictive
test for outrageous behavior. But we agree with the district court.

¶14 In addition to elements not at issue here, 3 to succeed on a
                                                  2F




claim for IIED, a plaintiff must show that the defendant’s conduct
“was outrageous and intolerable in that it offended generally
accepted standards of decency and morality.” Prince v. Bear River


3. “In Utah, a claim for IIED is actionable if: (i) the defendant’s
conduct is outrageous and intolerable; (ii) the defendant intends
to cause emotional distress; (iii) the plaintiff suffers severe
emotional distress; and (iv) the defendant’s conduct proximately
causes the plaintiff’s emotional distress.” Chard v. Chard, 

, 

 (cleaned up).


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                          A.W. v. Marelli


Mutual Ins. Co., 

, 

 (cleaned up). Our
supreme court in Retherford v. AT&T Communications of Mountain
States, Inc., 

 (Utah 1992), explained that “the standard
Utah has adopted for determining whether the conduct of a
defendant is sufficiently offensive to permit recovery is whether
the defendant’s actions offend against the generally accepted
standards of decency and morality.” 

 (cleaned up). The
court clarified that this standard does not “weaken” that adopted
by the Restatement (Second) of Torts, which uses the language
“beyond all possible bounds of decency.” 

 at 977 n.19; see also
Restatement (Second) of Torts § 46 cmt. d (Am. L. Inst. 1965). The
court made clear that the use of the language “generally accepted
standards of decency” was not a change in the standard but only
an acknowledgment that “all possible bounds” is difficult for any
court to determine. Retherford, 

 n.19. The court
emphasized that it “in no way softened the Restatement’s
requirement of extraordinarily vile conduct, conduct that is
atrocious, and utterly intolerable in a civilized community.” 

(cleaned up). As made explicitly clear by the court, this standard
still applies and is appropriate to apply in this case.

       Conduct is not necessarily outrageous merely
       because it is tortious, injurious, or malicious, or
       because it would give rise to punitive damages, or
       because it is illegal. To be considered outrageous,
       the conduct must evoke outrage or revulsion; it
       must be more than unreasonable, unkind, or unfair.
       Indeed, in order to prevail on a claim for IIED, a
       plaintiff must be able to prove that the defendant
       engaged in extraordinarily vile conduct, conduct
       that is atrocious, and utterly intolerable in a
       civilized community.

Chard v. Chard, 

, 

 (cleaned up).

¶15 On a claim for IIED, “it is for the court to determine, in the
first instance, whether the defendant’s conduct may reasonably



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                          A.W. v. Marelli


be regarded as so extreme and outrageous as to permit recovery.”

 (cleaned up). “However, where reasonable [minds] may differ,
it is for the jury, subject to the control of the court, to determine
whether, in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.” Cabaness v. Thomas,

, 

 (cleaned up), abrogated on other
grounds by Gregory & Swapp, PLLC v. Kranendonk, 

, 

. “[A] district court is not required to draw every possible
inference of fact, no matter how remote or improbable, in favor of
the nonmoving party. Instead, it is required to draw all reasonable
inferences in favor of the nonmoving party.” IHC Health Services,
Inc. v. D&K Mgmt., Inc., 

, 

. “An
inference is unreasonable if there is no underlying evidence to
support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC,

, 

 (cleaned up).

¶16 Looking at the “voluminous” examples of communication
from Marelli to AW, we agree with the district court that the
communications represent attempts—though at times poorly
executed—of a mother to reconcile with her daughter. While
statements such as “[Stepfather] sure misses being your dad” may
not be the most sensitive way for Marelli to rebuild a relationship
with her daughter, we cannot conclude that this and all the other
communications can be reasonably said to violate “generally
accepted standards of decency and morality.” See Prince, 

 (cleaned up). It is well within the court’s authority to
ascertain Marelli’s intent when reasonable minds could not differ,
as is the case here.

¶17 When a claim for IIED involves allegedly “ongoing and
continuous conduct,” the plaintiff “may recover for the entire
course of [the] defendant’s conduct.” See Cabaness, 

. Considering the whole of Marelli’s conduct—including the
facts that the correspondence was unwanted, that Marelli made a
couple of unwelcome visits to AW over the last decade, and that
Marelli sent AW correspondence after the present lawsuit
commenced—does not change our determination that Marelli’s



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                          A.W. v. Marelli


conduct cannot be reasonably found to evoke the outrage or
revulsion required to succeed on a claim for IIED.

¶18 The communications and even visits by Marelli to AW
represent a mother’s attempt to build a relationship with her
estranged daughter and, though insensitive at times, do not rise
to the level of extraordinarily vile conduct required. Therefore, we
affirm the district court’s grant of summary judgment against
AW’s claim of IIED.

                              II. NIED

¶19 AW also asserts that the district court erred in dismissing
her NIED claim, arguing the court applied the wrong standard
and overlooked contrary evidence.

¶20 Prior to 2018 in Utah, plaintiffs outside the “zone-ofdanger” 4 had no means to recover for NIED. Mower v. Baird, 2018
        3F




UT 29, ¶¶ 75–85, 

. Mower expanded “recovery for
[NIED] in very limited circumstances” where “certain types of
relationships, activities, and undertakings” exist that go to “the
core of another person’s emotional well-being and security.” Id.
¶ 76. Because the case before us does not involve a zone-of-danger
scenario, we apply the principles set forth in Mower. Under the
Mower analysis, a plaintiff must establish that (1) the defendant
owed a “traditional duty of reasonable care to the plaintiff” and
(2) the “relationship, activity, or undertaking [is] of the type that



4. The zone-of-danger rule set forth in section 313 of the
Restatement (Second) of Torts allows a plaintiff within the
physical zone of danger resulting from a defendant’s actions “to
recover for emotional distress caused by fear for personal safety
even though the plaintiff suffered no physical harm as a result of
the defendant’s breach of duty.” Mower v. Baird, 

,
¶¶ 51–52, 

 (cleaned up); see also Restatement (Second)
of Torts § 313 (Am. L. Inst. 1965).


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                            A.W. v. Marelli


warrants a special, limited duty to refrain from causing severe
emotional distress.” Id. ¶ 78.

¶21 The second step requires an additional three-prong
analysis asking the following:

           (1) Does the relationship, activity, or
           undertaking necessarily implicate the plaintiff’s
           emotional well-being?; (2) Is there an especially
           likely risk that the defendant’s negligence in the
           course of performing obligations pursuant to
           such relationship, activity, or undertaking will
           result in severe emotional distress?; and (3) Do
           general public policy considerations warrant
           rejecting a limited emotional distress duty
           where prongs one and two would otherwise
           find one to exist?

Id. ¶ 80 (cleaned up). 5
                       4F




¶22 The district court considered solely the second prong of
this analysis; however, we find that analysis unnecessary as AW’s
claim fails on the first prong. The first prong is meant to ensure
that the relationship, activity, or undertaking complained of is one
“fraught with the risk of emotional harm to the plaintiff.” Id. ¶ 81
(cleaned up). The Utah Supreme Court has made clear that “this
prong can be met only in those very limited situations where the
emotional well-being of others is at the core of, or is necessarily
implicated by, the relationship, activity, or undertaking.” Id.
(cleaned up). The court did not delineate all possible


5. The district court and parties have assumed a duty existed by
moving directly to step two of the Mower analysis. Therefore, for
purposes of this appeal, we do the same and move directly to the
three prongs under step two. However, this is not an indication of
whether a duty did in fact exist under step one of the Mower
analysis in this case.


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                          A.W. v. Marelli


relationships, activities, or undertakings that meet this
requirement but instead indicated that courts should make this
determination on a case-by-case basis with the recognition that
this high threshold will be met in very few instances. 

¶23 As pointed out by AW, the court in Mower found that a
nonpatient parent’s claim against the therapist who caused the
parent’s child to develop false memories while treating the child
for potential sexual abuse met this threshold as both an activity
and relationship that implicates the parent’s emotional well-being. See id. ¶ 97. The Restatement (Third) of Torts—upon which
our supreme court based this rule and upon which courts in other
jurisdictions have relied—identifies NIED as actions such as the
mishandling of a corpse, an erroneous announcement of a death
or illness, a physician negligently diagnosing a patient with a
serious disease, a hospital losing a newborn infant, an employer
mistreating an employee, and a spouse mentally abusing the other
spouse. See Restatement (Third) of Torts: Liability for Physical
& Emotional Harm § 47 cmt. f (Am. L. Inst. 2012); see also Mower,

; see, e.g., Hedgepeth v. Witman Walker Clinic, 

, 819–20 (D.C. 2011) (applying NIED to a patient
receiving a false HIV diagnosis); Doe Parents No. 1 v. State, 

, 580–82 (Haw. 2002) (applying NIED to a school reinstating a
teacher accused of child molestation without sufficient
investigation of the claim); Boorman v. Nevada Mem’l Cremation
Society, 

, 7–8 (Nev. 2010) (en banc) (applying NIED to
mortuary’s negligent handling of a loved one’s corpse).

¶24 Such a relationship, activity, or undertaking is not present
here. While sexual abuse, particularly within one’s own home, is
a serious and clearly harmful occurrence for a child, the activity
that AW argues supports her NIED claim is Marelli’s continued
communications with her, including two brief visits, over the
decade following the alleged abuse. While this activity, which we
view as attempts by a mother to reconcile with her daughter, may
evoke strong emotions, as the district court pointed out, it is not
“fraught with the risk of emotional harm.” Mower, 

,



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                          A.W. v. Marelli


¶ 81 (cleaned up). The expansion of NIED in Mower was
extremely limited to the narrow circumstances explained above,
and allowing recovery here would expand that rule
exponentially. An estranged relationship with a parent is too
ubiquitous to meet the specific requirement set out by our
supreme court that this rule will be met in very few instances. See

 Applying NIED to the facts before us would open the door to
a seemingly endless number of possible circumstances where
communication between a parent and child is strained, hurtful, or
unwanted. Thus, the activity here does not rise to the level of
those “very limited situations where the emotional well-being of
others” lies “at the core.” 

 (cleaned up). We therefore affirm the
district court’s grant of summary judgment against AW’s claim of
NIED.

                   III. Negligent Sexual Abuse

¶25 AW argues that Marelli was negligent in preventing the
alleged sexual abuse AW suffered because Marelli had previous
warning about Stepfather’s “inappropriate behavior around
children.” 6 The district court found legally insufficient support in
          5F




the record for this contention—a conclusion with which we agree.
To support this claim, AW relies on Neighbor’s declaration that
Stepfather wrote on her daughter’s buttocks. AW argues that the
district court inappropriately weighed and discounted the
declaration, particularly by calling the declaration “one
somewhat vague report of inappropriate conduct.”

¶26 In addition to other factors, a negligence claim requires
foreseeable injury to establish whether a defendant had a duty “to
conform to a particular standard of conduct toward another.”


6. In her complaint, AW asserted that Marelli’s failure to report
Stepfather’s sexual abuse to the proper authorities also
constituted negligence—a claim which the district court
determined failed. AW does not raise this issue on appeal;
therefore, we will not address it.


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                          A.W. v. Marelli


Normandeau v. Hanson Equip., Inc., 

, 

(cleaned up). “What is necessary to meet the test of negligence . . .
is that [the harm] be reasonably foreseeable, not that the particular
accident would occur, but only that there is a likelihood of an
occurrence of the same general nature.” Steffensen v. Smith’s Mgmt.
Corp., 

 (Utah 1993) (cleaned up); accord
Normandeau, 

. Duty—which includes the issue of
foreseeability—is “a purely legal issue for the court to decide.”
Normandeau, 

.

¶27 While summary judgment is appropriate only “when,
viewing all facts and reasonable inferences therefrom in the light
most favorable to the nonmoving party, there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law,” a plaintiff “is not entitled to build a
case on the gossamer threads of whimsy, speculation and
conjecture.” Kranendonk v. Gregory & Swapp, PLLC, 

, 

 (cleaned up), cert. denied, 

 (Utah
2014). “When the facts are so tenuous, vague, or insufficiently
established that determining an issue of fact becomes completely
speculative, the claim fails as a matter of law, and summary
judgment is appropriate.” Hardy v. Sagacious Grace LC, 

, 

 (cleaned up); see also Nelson v. Target
Corp., 

, 

 (“A plaintiff cannot
avoid summary judgment based on doubtful, vague, speculative
or inconclusive evidence.” (cleaned up)).

¶28 Although certainly disconcerting, the singular incident
described in Neighbor’s declaration is not enough to make it
reasonably foreseeable to Marelli that Stepfather would sexually
abuse AW and thereby leaves AW’s claim in the realm of vague
speculation, which is appropriate for summary judgment. First,
the evidence AW points to suggests that the incident with
Neighbor’s child was an isolated event. Second, writing on a
child’s buttocks during a game, though deplorable and entirely
inappropriate, is markedly different than lying in bed with and
touching a child’s genitals under her clothing. See McGuire v.



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                           A.W. v. Marelli


Cooper, 

, 922–23 (8th Cir. 2020) (concluding that
summary judgment was appropriate in a case involving a sexual
assault as “the prior instances of sexual misconduct [were] not
similar in kind or sufficiently egregious in nature to demonstrate
a pattern of sexual assault”); Bjerke v. Johnson, 

(Minn. Ct. App. 2007) (“The foreseeability of a sexual assault often
hinges on whether the defendant was aware of prior similar
behavior by the third party. Indeed, sexual assault will rarely be
deemed foreseeable in the absence of prior similar incidents.”
(cleaned up)), aff’d, 

 (Minn. 2007). 7 Finally, AW
                                                      6F




7. To support her argument that Marelli should have foreseen the
threat that Stepfather posed, AW cites O.L. v. R.L., 

(Mo. Ct. App. 2001), which states that “[a]s the gravity of possible
harm from sexual molestation of a young child is high, we
recognize that it may require a lesser showing of likelihood than
with other types of injuries.” 

. However, in O.L., the court
concluded that summary judgment was appropriate as the harm
was not foreseeable where a grandmother left her grandchild with
the grandfather, who then sexually abused the child. 

.
The evidence presented included the fact that the grandfather
physically abused the grandmother decades previously and broke
her nose, which the child’s father knew about and considered “so
remote in time that he had no qualms” with leaving his child in
the grandfather’s care. 

 at 478–79. The parents additionally
presented evidence that fifteen years prior to the abuse of the
child, the grandfather subscribed to Playboy magazine for one
year. 

. Finally, the parents relied on speculative evidence
that the grandfather sought extramarital sexual liaisons through
advertisements and at a social gathering. 

 The court concluded
that the evidence presented was “so tenuous that it [could not]
give rise to a genuine dispute as to whether a reasonable person
knew or should have known that [the] grandfather might pose a
danger to [the grandchild] if she was left unsupervised in his care,
thereby breaching a duty of care.” 

. While the evidence
here, namely the incident involving Neighbor’s daughter, is much
                                                       (continued…)


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                          A.W. v. Marelli


points to no evidence that Stepfather had taken any liberties with
or made any inappropriate advances toward her prior to the
incident at issue here. See Doe v. Franklin, 

, 924–29
(Tex. App. 1996) (concluding that summary judgment was not
appropriate on a negligence claim where a grandmother left her
granddaughter alone with the grandfather after the
granddaughter told the grandmother he had sexually abused
her). 8 Therefore, seeing insufficient evidence in the record that
    7F




more related in time and conduct to the abuse AW suffered, it is
still tenuous as we have discussed and does not meet even a
requirement of a “lesser showing of likelihood,” id. at 477, if that
standard were to apply in Utah.

8. AW cites Doe ex rel. Pike v. Pike, 

 (D. Mass.
2019), to support her argument that a reasonable jury could
conclude the harm of sexual abuse was reasonably foreseeable.
The case is unpersuasive. In Pike, a granddaughter in the care of
her grandparents suffered sexual abuse from her grandfather. Id.
at 172. The court concluded that summary judgment was
inappropriate because, viewing the evidence in the light most
favorable to the nonmoving party, a jury could find that “a
reasonable person in [the grandmother’s] position would have or
should have known that [the grandfather] was abusing [the
granddaughter].” Id. at 182. As AW points out in her brief, the
court based this determination on such evidence as “[the
grandmother’s] own observations of [the grandfather’s] conduct
toward [the granddaughter] and their other grandchildren,
including observing him playing the radio game [which involved
twisting the children’s nipples], engaging in the tickle game to
excess, being in the vicinity when the abuse occurred and ‘locking
eyes’ with [the granddaughter] while she sat next to [the
grandfather] on the couch and his hands were under the blanket
hidden from view.” Id. This evidence involved multiple incidents
and red flags that the grandmother chose to ignore, unlike the
singular incident here when Stepfather allegedly wrote on
                                                      (continued…)


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                        A.W. v. Marelli


Marelli should have reasonably foreseen the threat of Stepfather
sexually abusing AW, we affirm the district court’s grant of
summary judgment on AW’s claim of negligent sexual abuse.


                        CONCLUSION

¶29 We conclude that the district court correctly granted
Marelli’s motion for summary judgment, thereby disposing of all
three of AW’s claims against her.

¶30   Affirmed.




Neighbor’s daughter. Furthermore, the Pike court additionally
based its decision on the evidence, which AW fails to note, that
the grandmother knew the grandfather had been accused of
sexual assault previously. 

 With all this evidence taken into
account, we do not view Pike as analogous or persuasive.


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