Doe v. Pike

424 F.Supp.3d 170

Jane DOE, BY AND THROUGH her friend, Kim PIKE, Plaintiff,

v.Barbara PIKE, Defendant/Third-Party Plaintiff,

v.Kim Pike and Brian McCormick, Third-Party Defendants.

CIVIL ACTION No. 17-40021-TSH

United States District Court, D. Massachusetts.

Filed December 6, 2019

Christopher M. Hennessey, Sasha N. Kopf, Alexander C. Sohn, Elizabeth A. Tully, Cohen Kinne Valicenti & Cook, LLP, Pittsfield, MA, for Plaintiff.

Christopher M. Hennessey, Cohen Kinne Valicenti & Cook, LLP, Pittsfield, MA, Andrew P. DiCenzo, Christopher, Hays, Wojcik & Mavricos, LLP, Donald C. Keavany, Jr., Christopher, Hays, Wojcik & Mavricos, Worcester, MA, Janine H. McNulty, Paul E. Mitchell, Mitchell & DeSimone, Boston, MA, for Defendant/Third-Party Plaintiff.

Christopher M. Hennessey, Alexander C. Sohn, Elizabeth A. Tully, Cohen Kinne Valicenti & Cook, LLP, Pittsfield, MA, for Third-Party Defendants.

MEMORANDUM Of DECISION AND ORDER

HILLMAN, D.J.

Background

John Pike ("John") sexually assaulted his granddaughter, Jane Doe, multiple times between 2007 and 2010. Jane Doe sued John for those assaults in this Court. Default judgment was entered against John and Jane Doe was awarded damages. Jane Doe, by and through her mother and next friend, Kim Pike ("Kim" or "Plaintiff") now brings claims for negligent supervision (Count I) and negligent infliction of emotional distress (Count II) against her grandmother, Barbara Pike ("Barbara" or "Defendant"). The gravamen of Plaintiff's claims is that Barbara either was, or should have been, aware of John's abusive behavior, and should have taken steps to prevent it. Barbara has filed a Third-Party Complaint against Kim and Brian McCormick ("Brian"), Jane Doe's parents, alleging claims for contribution.

This Memorandum of Decision and Order addresses the Motion for Summary Judgment By The Defendant/Third Party Plaintiff Barbara Pike (Docket No. 56). For the reasons set forth below, that motion is denied .

Discussion

Standard of Review

Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp. , 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed. R. Civ. P. 56(c) ). " ‘A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case." Sensing v. Outback Steakhouse of Florida, LLC , 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't of Justice , 355 F.3d 6, 19 (1st Cir. 2004) ).

When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id. , at 152. " ‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.’ " Id. (citation to quoted case omitted). " ‘[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or "improbable inferences". Id. (citation to quoted case omitted). " ‘The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." ’ " Id. (citation to quoted case omitted).

Facts

Parties and Pike Family Background

Barbara was born in 1939 and is currently 80 years old. Barbara and John were married in 1956 and have 5 children, Kim, John Gordon Pike ("J. Gordon"), Alan Pike ("Alan"), Scott Pike ("Scott"), and Joshua Pike ("Josh Pike"). Josh Pike was adopted by Barbara and John when his parents (John's brother and sister-in-law) died in a motor vehicle accident.

In or around 1969, Barbara, John and their children moved from Virginia to Colchester, VT. At that time, the children ranged in age from 6 to 12. John disciplined his children at times with a belt. He struck his sons with open hands and closed fists and would kick at least one son if he attempted to protect himself. On two occasions while Kim was in high school, John physically restrained her. Additionally, John was emotionally abusive to Barbara during their marriage.

John played the "tickle game" with his children when they were young. John described the tickle game as follows: "Well, what I would do is I would lay on the floor on my back, and they would lay in my crotch with their arms underneath my legs. And then I would ask them questions. If they answered the question right, do nothing. If they answered it incorrectly, then I would tickle them to make them giggle." Kim similarly described the tickle game that she experienced as a child with her father: "[w]e would be pinned down and between his legs. My mother did it too. It was fun. We all laughed. But they would ask questions an if you didn't have the answer to the question, you would be tickled mercilessly. You would just be tickled, you know, sometimes to where - - and that's why I asked, sometimes to where it hurt. You know, you were laughing so hard that you were almost in pain, you know, crying or upset.... it was fun." However, Kim also testified that the tickle game made her feel "discomfort", that she believed it was a "punishment" and that she believed John's intent was to "inflict pain."

J. Gordon similarly described the tickle game, testifying: "[H]e would — you know, you'd lay on the floor He'd have his legs over your arms. And he would ask you questions. and if you got the wrong answer then he would tickle you. and then he'd ask another question. But he seemed to never stop, I mean, literally." Scott similarly described the tickle game, testifying: "Basically just you'd – you'd sit down; he'd have his legs over your arms; he'd ask you questions. If you got it wrong, he'd tickle you." Scott further testified that his mother expressed concern that the game was "abuse ... because I was laughing so hard I couldn't get up." She would say "it was wrong to tickle someone like that." Barbara observed John play the tickle game with their children.

The Pike Grandchildren and their Relationship with John

Barbara and John have 9 grandchildren: Hunter, Jane Doe, Seth, Ashley, Brittney, Jamie, Beau, Nina and Sally Doe. Hunter and Jane Doe are the daughters of Kim and Brian. They babysat for J. Gordon's children, Seth and Ashley. J. Gordon did not have any concerns about leaving his children with them. J. Gordon never observed any conduct between his children and John that concerned him. He observed John play the tickle game with Seth and Ashley at his home in Vermont. When he was observing John play the tickle game with Seth and Ashley, J. Gordon did not think that there was a sexual component to that game. Ashley described the tickle game: "So it basically involved a guessing of for example, like what color t-shirt is my brother wearing if he wasn't in the room, and if I got it wrong, then they would tickle me. that was to the extent of it.... Usually it was on the floor and, again, this is just from memory. I usually remember myself laying on the ground and my arms were just pinned underneath his legs." Ashley thought the tickle game was fun and harmless. Kim observed John play the tickle game with Ashley and Seth. Prior to Jane Doe's disclosure in January 2014, J. Gordon never spoke with his siblings regarding any concerns about John.

Brittany, Jamie, Boaz and Nina are the children of Alan. John played the tickle game with Alan's children, Boaz and Nina. Alan observed his father John play the tickle game with his children at his home in Vermont. When he was observing his father, John, play the tickle game with Boaz and Nina, Alan did not think the tickle game was appropriate.

Scott and his wife Colleen Pike ("Colleen") have one child, Sally Doe. Colleen observed John playing tickle game with Sally Doe and never observed John interact with her in a manner that was concerning or inappropriate. Scott did not observe any inappropriate behavior between John and Sally Doe. Prior to Jane Doe's disclosure, Scott did not have any concerns about leaving Sally Doe alone with John.

Jane Doe's Family Background and Pre-Disclosure Relationship With John

Kim's daughter Hunter was born in 1994. Jane Doe was born in 2000. Jane Doe was adopted by Kim and Brian in May 2001. When Jane Doe was adopted, Kim, Brian, Hunter and Jane Doe lived in Hopedale, MA. In May 2001, Kim believed that she had a good relationship with her father. Kim and Brian wanted John around their home. John and Barbara moved to Bullhead City, AZ in or around 2001. In or around 2008, Brian and Kim lent John and Barbara $98,000 to buy a condominium in Laconia, NH (the "Laconia condominium") so they could be close to the family. John and Barbara always made arrangements before visiting Brian and Kim. On numerous occasions, throughout Jane Doe's childhood, Kim asked Barbara to supervise and care for Jane Doe in her absence. Barbara was often accompanied by John, but Kim specifically asked Barbara and not John to supervise and care for Jane Doe. Barbara understood that she, rather than John, was responsible for the supervision and care of Jane Doe.

Kim and her family lived in Hopedale until 2006 and John and Barbara frequently visited them. Kim invited them to stay in Hopedale. John played the tickle game with Kim's children, Hunter and Jane Doe in Hopedale. Kim observed her father...