PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION

Address

 

Attorney for Plaintiff

XXX  § COURT OF COMMON PLEASE

  • XXX  COUNTY
  • XXX
  • CIVIL ACTION

Plaintiff, §

  1. §

XXX

XXX

Defendants, §

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure (PRCP) and the arguments and authorities herein, Plaintiff responds to Defendant’s Motion for Summary Judgment, as follows:- 

  • PROCEDURAL AND FACTUAL BACKGROUND
  • Background 
  1. XXX  is a citizen and resident of the Commonwealth of XXXX . When she was a minor, XXX was the victim of sexual abuse due to Defendant. 
  2. XXXX  use of this pseudonym is done in good faith and in order to avoid humiliation, embarrassment, or additional psychological harm. That said, Defendant is privy to the identity of XXX  as they have been provided a verification with her full name.
  3. Defendant, XXX , (hereinafter “Brackett”) is an adult individual who is a citizen of and resides in the Commonwealth of Pennsylvania at the address noted in the caption as an inmate in a correctional facility of the Commonwealth of XXX. 
  4. At all times referred to herein, Defendant, Devereux Foundation, (hereinafter “Devereux”) was a business, company, entity, partnership, franchise, fictitious name, proprietorship or corporation, duly incorporated and existing under the laws of the Commonwealth of XXX. In this cause of action, Devereux Foundation acted through its supervisors, agents, servants, workmen and employees, with its principal place of business being XXX. 
  5. Devereux maintained facilities and a place of business at 655 Sugartown Rd., Malvern, PA 19355. Furthermore, Brackett was employed by Devereux. 
  6. On or about March XXX, a resident of XXX(then a minor having been born on March 2, 1999,) and in the custody of the Philadelphia DHS having been adjudicated dependent, was referred by and placed at the Devereux for residential treatment.
  7. Upon admission to XXX  was evaluated by Laurie Appelbaum, MD, Board Certified Child/ Adolescent Psychiatrist who noted XXX prior treatment for severe aggressive behavior, possible trauma history which met partial criteria for PTSD, and concerns for Jane Doe’s lack of insight and understanding as well as indications of paranoid thinking patterns.
  8. While Jane Doe 1 resided at the XXX facility located at XXXX, she was repeatedly physically and sexually assaulted by XXX. It should be noted that Devereux, including its XXX Campus, has a long history of its patients being sexually abused and assaulted. 
  9. On or before XXX, Devereux, through its agents, servants, workmen and/or employees, including but not limited to XXXX , Program Director at the Devereux facility in XXX , a counselor and social worker assigned to work with Jane Doe 1, discovered or were made aware of inappropriate correspondence between Brackett and Jane Doe 1 in the nature of a “love letter”. 
  10. On or about XXX  reported that XXX had been sexually and physically assaulted while residing at the XXX
  11. On or before XXX, Devereux knew or had reason to know that XXX t had committed unlawful sexual activity, such as deviant sexual intercourse on XXX as a minor. However, despite actual knowledge that XXXX  had sexually assaulted Jane Doe 1 as a minor, XXX  permitted Brackett in the employ of Devereux to have unfettered access to XXX, whereby XXX continued to rape, sodomize and otherwise seriously harm XXX. 
  12. At all times prior to XXXX  was a minor and less than sixteen years of age and was legally incapable of consenting to any of the sexual acts perpetrated on her. 
  13. The aforementioned acts and omission of XXXX and its agents in its capacity to treat a mentally ill patient such as XXX  impose upon it liability under the XXXX Mental Health Act for such willful misconduct or gross negligence. 
  14. Following these events, Plaintiff (XXX) instituted an action against the Defendant. Plaintiff’s Amended Complaint was filed on XXXX which seeks to hold Defendant liable for violating the law on various counts including: a) childhood sexual abuse and vicarious liability, b) negligence, c) negligent supervision, and d) negligent hiring and retention.
  15. Subsequently, Defendant responded to Plaintiff’s Amended Complaint through a Response filed on XXX. However, before the trial could proceed, Defendant’s filed a Motion for Summary Judgment on XXXX  which seeks to dismiss the Plaintiff’s suit and enter judgment based on the allegation that Plaintiff has failed to provide evidence establishing a genuine issue of material fact.
  • STANDARD OF REVIEW FOR SUMMARY JUDGMENT
  1. The law pertaining to motions for summary judgment is found in Rule 1035 of the XXX Rules of Civil Procedure (PRCP). Rule 1035.2 states: that, 
    1. “After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1)  whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2)  if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”
  2. As such, summary judgment should only be granted where there is no issue as to any material fact (Fed.R.Civ.P. 56(c)). In particular, Rule 1035(3) provides that a summary judgment order can be granted where a respondent fails to identify: 
    1. evidence in the record which establishes the facts essential to the cause of action, which the motion cites as not having been produced; or 
    2. one or more issues of fact that arise from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion.
  3. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. (Yenchi v. Ameriprise Fin., Inc., 161 A.3d 811, 818). Furthermore, in considering a motion for summary judgment, a court views the evidence in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. (Green v. Pennsylvania Prop. & Cas. Ins. Guar. Ass’n , 158 A.3d 653, 658). Furthermore, in reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. (Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 11th Cir. 1992). Therefore, summary judgment would not be appropriate if the documents submitted in support of a motion for summary judgment evidenced a disputed issue as to a material fact. (Allen v. Colautti, 53 Pa. Commw. 392, 417 A.2d 1303 (1980); Pa. R.C.P. No. 1035.) (Securities & Exchange Commission v. Cable/Tel Corp., 532 F. Supp. 873).
  4. Consequently, Pennsylvanian courts have applied Rule 1035 by holding that if there are genuine issues of material fact which exist, that this would preclude a grant of the motion for summary judgment. Accordingly, any motion for summary judgment facing these circumstances must be denied as a matter of law. (Aqua-Life v. Pennsylvania Game Com’n, 153 Pa. Commw. 145 Pa. Cmmw. Ct. 1993)
  • Plaintiff’s Cause of Action Differs from the Defendants 
  1. In light of the foregoing, to succeed in defeating the Motion for Summary Judgment, Plaintiff may identify evidence in the record which establishes facts that are essential to this dispute’s cause of action, which Defendant’s motion cites as not having been produced. 
  2. In that regard, Defendant’s Motion alleges that Plaintiff has failed to put forward evidence of gross negligence or willful misconduct. Further, Defendant has argued that Plaintiff cannot establish gross negligence or willful misconduct.
  3. However, Plaintiff argues that this dispute’s cause of action is not based on an allegation of professional medical negligence. This is because the present dispute is not a factual situation analogous to a claim of professional negligence. 
  4. To the contrary, Plantiff argues that Devereux is liable for their failure to hire, train and supervise a custodial supervisor who was rendering medical treatment. The facts of this case as seen in the evidence on record shows that they were not mindful of their obligation to oversee their staff since Brackett had access to sexually abuse Plaintiff on several occasions. In that regard, Plaintiff cites Devereux’s knowledge of an inappropriate relationship existing between the client and their employee when they discovered a love letter in October 2014. This fact has even been confirmed in the deposition of Emily, Devereux’s employee. Furthermore, Plaintiff also seeks to rely on testimonial evidence offered by Plaintiff during the trial to support this argument. 
  • Identifying Evidence in the Record which Establishes Gross Negligence and Willful Misconduct
  1. In the alternative, even though Defendant has argued that Plaintiff cannot establish gross negligence or willful misconduct, Plaintiff argues that there is still evidence in the record which establishes gross negligence and willful misconduct.
  2. The Supreme Court defines “gross negligence” as behavior that is flagrant and grossly deviating from the ordinary standard of care. Plaintiff argues that the Defendant (Devereux) is liable for gross negligence and willful misconduct under the Pennsylvania Mental Health Act (Mental Health Procedures Act) for their oversight and intentional concealment of multiple episodes of sexual abuse by Brackett. Plaintiff further claims that the aforementioned acts/omissions by Devereux and its agents constituted flagrant behavior that grossly deviated from the ordinary and accepted the standard of care of mental-health care depriving Devereux of any immunity under the Pennsylvania Mental Health Act. (See Martin v. Holy Spirit Hospital, 154 A.3d 359 (2017); Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (1991). 
  3. In support of this claim, Plaintiff relies on the deposition testimony of Plaintiff and Emily who confirmed that she was sexually assaulted and had an inappropriate relationship with Brackett. Furthermore, Plaintiff also seeks to rely on testimonial evidence offered by Plaintiff during trial to support this argument. 
  • Identifying Issues of Fact arising from Evidence in the Record and Controverting Evidence in Support of Defendant’s Motion
  1. In addition to the above, Plaintiff may also defeat the Motion for Summary Dismissal through identifying at least one issue of fact that arises from evidence in the record which in turn controverts the evidence cited in support of Defendant’s motion.
  2. In this regard, Plaintiff argues that Devereux, as a result of accepting, condoning, encouraging, enabling and permitting Brackett in his role as a staff member of Devereux, supervising the care and oversight of Jane Doe 1, committed negligence per se by violating the following laws, statutes, and ordinances which were designed to protect someone in the position of Jane Doe 1 and which set forth the duty of care for people in the position of Brackett: 18 § 3124.2 § A.1 (Institutional Sexual Assault of Minor) 18 § 6318 § A.1 (Unlawful Contact with Minor-Sexual Offenses); 18 § 6312 § D ( Child Pornography); 18 § 6301 § A.Ii and A.Iii (Corruption of Minors- Defendant 18 or above). 
  3. Furthermore, Plaintiff relies on the Nanty-Glo Rule in arguing that there is a genuine issue of material because the cause of action is dependent upon the credibility and demeanour of the witnesses who will testify at trial. (See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).)
  • CONCLUSION

From the foregoing, Plaintiff respectfully submits that Defendant’s Motion for Summary Judgment should be denied in its entirety because it has identified: a) evidence in the record which establishes facts that are essential to this dispute’s cause of action, and b) issues of fact that arises from evidence in the record which in turn controverts the evidence cited in support of Defendant’s motion. Furthermore, Plaintiff respectfully requests this court to exercise its discretion in the interest of justice (where peradventure Plaintiff’s response may be deemed unconvincing) to permit obtainment of affidavits, taking of depositions and making further discovery as it is within this court’s power to so order. [Rule 1035.2(2)(b)and(c)].

In light of this, Plaintiff relies on the legal rules cited herein to humbly request this Honorable Court to deny Defendant’s Motion for Summary Judgment. 

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