McKenna, et al. v. American Institute CV-94-671-B 09/12/97

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Marsha A. McKenna and James F . McKenna, by and through his next best friend, Marsha A. McKenna

v. Civil No. 94-671-B

American Institute for Foreign Study Scholarship Foundation and American Institute of Foreign Study, Inc.

MEMORANDUM AND ORDER

Marsha McKenna and her son, James McKenna, brought this

action to recover damages allegedly suffered by them due to a

sexual assault committed by an au pair1 placed in the McKenna

household by the defendants. James McKenna asserts claims for

(1) negligence, (2) negligent infliction of emotional distress,

(3) breach of contract, (4) breach of express warranty, and (5)

vicarious liability. Marsha McKenna claims (1) breach of

contract, (2) breach of express warranty, (3) misrepresentation

1 An "au pair" is a person, usually a young foreign visitor, employed to take care of children in exchange for room and board. and (4) defamation.2 The defendants move for summary judgment on

all counts. For the following reasons, I grant their motion in

part and deny it in part.

I. BACKGROUND

Defendants operate a program which, for a fee, brings

foreign students to the United States and places them with

American families as au pairs. In the fall of 1992, the

defendants sent Marsha McKenna a "Host Family Application" and a

brochure explaining their business.3 Marsha McKenna informed

defendants that she needed an au pair to help care for her son,

James McKenna. She also paid a $200 application fee, signed the

"Host Family Agreement," which incorporates the brochure by

reference, and paid defendants' $3,450 fee.

Defendants sent Marsha McKenna information about a Danish

man named Mads Runge Lilholm, whom defendants had approved for

2 On November 3, 1995, I dismissed plaintiffs' Consumer Protection Act, breach of implied warranty, strict liability, and vicarious liability based on joint enterprise claims; and Marsha McKenna's negligence and negligent infliction of emotional distress claims. At the same time, I determined that all of plaintiffs' claims are governed by New Hampshire law.

3 Defendants' brochure states, among other things, that all au pairs will be "carefully selected," "screened," and "of good character." It also states that defendants will provide au pairs with "an intensive four-day orientation and training program."

2 placement with the McKennas. The "Interview Report" that

defendants sent Marsha McKenna states: "Mads is a wonderful young

man with a love of children. . . . He is open and kind, and you

can't help liking him; he will be a wonderful au pair."

According to Marsha McKenna, she agreed to accept Lilholm as an

au pair based on these representations.

Defendants placed Lilholm in the McKenna household in

December 1992. The McKennas allege that on January 3, 1993,

Lilholm sexually abused James, then five, by wrestling him to the

ground, pulling down James's pants to expose his genitals,

holding James down by grabbing him in the genital area, and then

using or pretending to use a camera to photograph his genitals.

Despite Lilholm's warning not to do so, James told his

father about the incident. When confronted by the McKennas and

the police, Lilholm denied wrestling James to the ground or

photographing his genitals, but admitted that, ostensibly to

discipline James, he had threatened to do so.

When defendants confronted Lilholm, he claimed that Mrs.

McKenna had concocted the story to punish Lilholm for rebuffing

her sexual advances. Defendants repeated Lilholm's claim to

another host family, Norman and Linda Shinkle, in an attempt to

convince them to accept Lilholm. Specifically, the Shinkles

3 relate that the defendants told them that Lilholm had been

serving as an au pair in New Hampshire, that the Host Mother had

alleged that Lilholm acted improperly by taking photographs of

her son for inappropriate purposes, and that Lilholm had denied

the allegations, saying that the Host Mother had made up the

allegations in retaliation for his rebuff of her sexual advances.

II. STANDARD

Summary judgment is appropriate "if the pleadings, depo­

sitions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); see Lehman v. Prudential Ins. Co. of Am.,

, 327

(1st Cir. 1996). The moving party has the burden of demonstrat­

ing the absence of a genuine issue of material fact for trial.

Anderson v. Liberty Lobby, Inc.,

(1986). The

party opposing the motion, the McKennas in this case, must set

forth specific facts showing that there remains a genuine issue

for trial, demonstrating some factual disagreement sufficient to

deflect summary disposition. Mesnick v. General Elec. Co.,

(1st Cir. 1991). This burden is discharged only if

4 the cited disagreement relates to a genuine issue of material

fact. Wynne v. Tufts Univ. Sch. of Med.,

(1st

Cir. 1992). Since the purpose of summary judgment is issue

finding, not issue determination, the court's function at this

stage "is not . . . to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue

for trial." Stone & Michaud Ins., Inc. v. Bank Five for Sav.,

(D.N.H. 1992) (guoting Anderson,

9).

When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must "make a showing suffi­

cient to establish the existence of [the] element[s] essential to

[his] case." Celotex Corp. v. Catrett,

(1986). It is not sufficient to "rest upon mere allegation[s] or

denials of his pleading." LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993) (guoting Anderson,

).

Rather, to establish a trial-worthy issue, there must be

enough competent evidence "to enable a finding favorable to

the nonmoving party." Id. at 842 (citations omitted). In

determining whether summary judgment is appropriate, I construe

the evidence and draw all justifiable inferences in the non­

moving party's favor. Anderson,

.

5 III. DISCUSSION

A. The Release

The defendants argue that the release contained in the "Host

Family Agreement" signed by Marsha McKenna bars plaintiffs'

claims. The release reads:

I acknowledge and agree to release the Foundation, American Institute for Foreign Study (the "Institute"), AIFS, Inc. and its subsidiaries and their officers, employees, and agents, for any personal and property damage, injury, loss, delay or expense incurred by me/us or any family member, guest, employee or agent, due to events beyond the Foundation's or Institute's reasonable control, including without limitation acts of God, acts of war or government restrictions, and, in the absence of gross or willful negligence by the Foundation or the Institute, any events directly or indirectly caused by any intentional or negligent acts or omissions by an au pair placed in my/our household.

In order to decide whether this release bars the McKennas'

claims, I must determine (1) whether, under the circumstances,

Marsha McKenna could release the defendants from liability as to

her son's potential claims, (2) whether the language of the

release bars any of the McKennas' claims, and (3) whether the

release is valid under New Hampshire law.

The New Hampshire Supreme Court has never decided whether a

parent has the legal authority to waive her child's future cause

of action for personal injuries resulting from a third party's

negligence. It has, however, upheld release clauses or excul-

6 patory agreements against adults, finding that they are not per

se violative of public policy. Barnes v. New Hampshire Karting

Assoc., Inc.,

(1986). In so doing, the

court noted that "exculpatory contracts are generally prohi­

bited, " and that a "defendant seeking to avoid liability must

show that the exculpatory agreement does not contravene public

policy."

. Thus, "[w]here the defendant is a common

carrier, innkeeper or public utility, or is otherwise charged

with a duty of public service, the defendant cannot by contract

rid itself of its obligation of reasonable care."

(citations

omitted). Likewise, exculpatory agreements may be invalid where

one party is at an obvious disadvantage in bargaining power, and

conseguently cannot be said to have freely chosen to enter into

the agreement.

.

Even when an exculpatory agreement does not contravene

public policy, it is to be strictly construed against the drafter

to protect the basic tenet that a party should be liable for the

conseguences of its negligent breach of duty.

. An

exculpatory agreement will only be upheld if it clearly states

that the defendant is not responsible for the conseguences of his

negligence and contemplates the plaintiff's claims against which

it is asserted.

. Additionally, the plaintiff's

7 claims must have been within the contemplation of the parties

when the agreement was executed.

New Hampshire's Supreme Court has decided that a parent's

decision to give up a child's cause of action in exchange for

workers' compensation payments is not binding on the child under

the Workers' Compensation Act. Roberts v. Hillsborough Mills,

(1932). In making its decision, the court noted

that "[o ]rdinarily there are only two recognized ways in which a

minor may take binding action in the enforcement or discharge of

his legal rights, namely, through a duly appointed guardian

acting within his powers, or through his next friend by proceed­

ings in court."

(citations omitted). This decision

is in accordance with the general rule that, in post-injury

settings, a parent's signature on a release is ineffective to

preclude a minor's claims against a negligent party. See, e.g.,

Colfer v. Royal Globe Ins. Co.,

(N.J. Super. C t .

A p p . Div. 1986); Castro v. Boulevard Hosp.,

(N.Y.

A p p . Div. 1984); Whitcomb v. Dancer,

(Vt. 1982).

Since a parent may not release a child's cause of action

post-injury without court approval, it makes little sense to

conclude that the parent should have that authority before the

injury occurs. Scott v. Pacific W. Mtn. Resort,

, 11- 12 (Wash. 1992) (en banc). Accordingly, of those jurisdictions

that have considered the issue, almost all have concluded that

pre-injury releases signed by a parent do not bar a child's

action for personal injury absent contrary statutory provisions.

Fedor v. Mauwehu Coun., Bov Scouts of Am., Inc.,

(Conn. Super. C t . 1958); Mever v. Naperville Manner, Inc.,

(111. App. C t . 19 94); Doyle v. Bowdoin

College,

, 1208 n.3 (Me. 1979); Fitzgerald v. Newark

Morning Ledger Co.,

(N.J. Super. C t . Law Div.

1970); Childress v. Madison County,

(Tenn. C t .

App. 198 9); Scott,

. See also International Union,

UAW v. Johnson Controls, Inc.,

(1991) (White,

J. concurring). But see, Hohe v. San Diego Unified Sch. Dist.,

(Cal. C t . App. 1990).

Based on the holding in Roberts, New Hampshire's general

public policy disfavoring exculpatory agreements, and the weight

of authority from other jurisdictions, I conclude that the New

Hampshire Supreme Court would hold that the pre-injury release

signed by Marsha McKenna is unenforceable against her son's

claims.

Having found that the release does not apply to James

McKenna's claims, I now consider whether it applies to Marsha McKenna's breach of contract, breach of express warranty,

misrepresentation, and defamation claims. As an exculpatory

agreement, I construe its language strictly against the defen­

dants, who drafted it. Barnes,

. If the

agreement does not "clearly and specifically indicate[]" an

intent to release the defendant from liability for personal

injury caused by the defendant's negligence, it will not be

enforced.

The "Host Family Agreement" states that the defendants are

only released for damages incurred "due to events beyond the

Foundation's or Institute's reasonable control." Events beyond

the defendants' reasonable control are defined as "events

directly or indirectly caused by any intentional or negligent

acts or omissions by an au pair placed in my/our household."

The agreement clearly releases the defendants from vicarious

liability based on the acts or omissions of an au pair. It does

not release claims such as Marsha McKenna's defamation claim

which is based on the defendants' own conduct. Also, it is not

clear that the agreement releases defendants from liability for

the au pair's injurious acts to the extent that the defendants

would otherwise be liable for those acts because of their own

misconduct.

10 Marsha McKenna's remaining claims are all based on acts

allegedly committed directly by the defendants. She argues that

the defendants made misrepresentations, breached their contract,

and broke their express warranties by not screening, training, or

carefully selecting Lilholm. The damage allegedly inflicted by

these acts was caused by Lilholm, but none of the acts themselves

can be said to have been beyond the defendants' reasonable

control. Thus, strictly construing the language of the excul­

patory agreement against the defendants, I find that it does not

clearly apply to Marsha McKenna's misrepresentation, breach of

contract, and warranty claims.

Because I find that the terms of the exculpatory agreement

are unclear, I need not examine whether it is otherwise contrary

to public policy in order to conclude that the release does not

bar Marsha McKenna's claims.

B. Marsha McKenna's Defamation Claim

Marsha McKenna alleges that she was defamed when the

defendants repeated Lilholm's accusation that she had concocted

the abuse allegations in response to his rebuff of her sexual

advances.4 Defendants argue that the defamation count must be

4 In their brief opposing summary judgment, plaintiffs also seem to argue that the defendants are directly liable for Lilholm's defamatory statements based on the doctrine of 11 dismissed because it is undisputed that they never named Marsha

McKenna when they repeated Lilholm's accusations and because

their repetition was not a statement of fact, but a report of an

allegation. Defendants' arguments, which are presented without

citation to any case or treatise, do not provide a reason to

grant summary judgment.

To establish a case of defamation, McKenna must present

evidence that the defendants "failed to exercise reasonable care

in publishing, without a valid privilege, a false and defamatory

statement of fact about the plaintiff to a third party."

Independent Mechanical Contractors, Inc. v. Gordon T. Burke &

Sons, Inc.,

(1993) (citing Restatement (Second)

of Torts § 558 (1977)). A defamatory statement need not refer

specifically to a plaintiff by name. See, e.g.. Haves v.

Newspapers of New Hampshire, Inc.,

(1996).

It is sufficient that the statement points to the plaintiff by

description or circumstances tending to identify her. Redco

Corp. v. CBS, Inc.,

(3d Cir. 1985) (applying

Pennsylvania law); Eyal v. Helen Broad. Corp.,

,

respondeat superior. The plaintiffs' complaint, however, only alleges defamation based on the defendants' repetition of Lilholm's statement to another prospective host family and only alleges vicarious liability for Lilholm's alleged acts of assault, not for his defamatory statements. 12 230-31 (Mass. 1991); 50 Am. Jur. 2d Libel and Slander § 29

(1995). Here, the defendants referred to Marsha McKenna by

description, identifying her as Lilholm's Host Mother from New

Hampshire. This information is sufficient for a jury to conclude

that the defendants' statements were about Marsha McKenna, and

thus can support her claim of defamation.5

Furthermore, every repetition of a defamatory statement is

itself an actionable publication, "even though the repeater

states the source, or resorts to the customary newspaper evasion

'it is alleged', or makes it clear that he does not himself

believe the imputation." W. Page Keeton et al., Prosser and

Keeton on the Law of Torts § 113, at 799 (5th ed. 1984)); see

also Olinaer v. American Sav. & Loan Ass'n,

(D.C. Cir. 1969); Maloof v. Post Publ'q Co.,

(Mass. 1940); Martin v. Wilson Publ'q Co.,

(R.I. 1985); Restatement (Second) of Torts § 581A cmt. e (1977).

For these reasons, I deny defendants' motion for summary judgment

as to Marsha McKenna's defamation count.

5 Defendants do not argue that their allegedly defamatory statements did not harm Marsha McKenna's reputation because the Shinkles did not know her. Therefore, I do not decide here whether Marsha McKenna is entitled to any compensable damages for defamation. Nor do I decide whether her claims are subject to any privilege.

13 C. Marsha McKenna's Misrepresentation Claim

Marsha McKenna alleges that the defendants misrepresented in

their brochure that their au pairs would be "of good character,"

would be carefully screened prior to selection, and would be

provided with appropriate training. She also alleges that the

defendants misrepresented in their "interview report" of Lilholm

that he was "a wonderful young man with a love of children," that

he was "open and kind," and that he would be "a wonderful au

pair."

To succeed with a claim of intentional misrepresentation,

Marsha McKenna must show that the defendants' representations

were made (1) with knowledge of their falsity or with conscious

indifference to their truth and (2) with the intention of causing

her to rely on the representations.6 Patch v. Arsenault,

(1995) .

Mrs. McKenna has presented no evidence and does not now

argue that the defendants knew their statements were false.

Instead, she asserts that because the defendants failed to

exercise reasonable care to verify the truth of their statements,

6 Marsha McKenna does not assert a negligent misrepre­ sentation claim as her complaint alleges that defendants acted either with knowledge that the representations were false or with reckless disregard of the statement's truth or falsity. See Patch v. Arsenault,

(1995). 14 they acted with reckless disregard of or conscious indifference

to the statements' truth or falsity. Conscious disregard,

however, reguires more than a mere failure to investigate. See

Nash v. Keene Publ'q Corp.,

(1985) ("Failure

to investigate does not in itself establish bad faith."). To

establish a reckless disregard to the truth or falsity of a

statement, a plaintiff must present proof of a high degree of

awareness of probable falsity or evidence sufficient to permit

the conclusion that the defendants in fact entertained serious

doubts as to the truth of their statements.

(explaining the

meaning of reckless disregard in a defamation action).

McKenna has presented no evidence which suggests that the

defendants knew anything that called into guestion their asser­

tions that Lilholm was of good character, had a love of children,

was open and kind, or would be a wonderful au pair.7 Nor does

the record contain evidence indicating that the defendants did

not intend to screen or train Lilholm. It is undisputed that the

defendants interviewed Lilholm and checked at least one of his

7 The McKennas present testimony from an expert who claims that the defendants should have recognized a need for additional information and further scrutiny of Lilholm. However, no reasonable jury could conclude from this evidence that the defendants in fact entertained serious doubts as to the truth of their statements about Lilholm's character.

15 references. As far as training is concerned, Mrs. McKenna

concedes that she was aware that Lilholm would not attend the

training session in New York. In fact, Mrs. McKenna reguested

that Lilholm travel directly to New Hampshire and not attend the

New York training session. It is undisputed that Lilholm

received one-on-one training from the Institute's community

counselor after his arrival in New Hampshire. Based on this

undisputed evidence, no reasonable jury could conclude that the

defendants made their alleged misrepresentations with a conscious

indifference to or a reckless disregard of their truth or

falsity. Nor will the record support a claim that the defendants

made promises without the intent or ability to carry them out.

See Hvdraform Prods. Corp. v. American Steel & Aluminum Corp.,

(1985). For this reason, I grant defendants'

motion for summary judgment as to Marsha McKenna's misrepre­

sentation counts.

D. Plaintiffs' Claims for Breach of Contract and Breach of Warranty

Defendants move for summary judgment on plaintiffs' breach

of contract and breach of express warranty claims,8 asserting

8 In my order of November 3, 1995, I held that the breach of express warranty and contract claims, though similar, were not identical.

16 that any damages recoverable by the plaintiffs have already been

paid in the form of a refund of Mrs. McKenna's $3,450 fee. The

McKennas counter by claiming that a genuine factual dispute

exists as to whether additional conseguential damages are

recoverable. Conseguential damages are those damages that "could

have been reasonably anticipated by the parties as likely to be

caused by the defendant[s'] breach." Zareas v. Smith,

(1979) (guoting Hurd v. Dinsmore,

(1884)). Put another way, conseguential damages must flow from

the defendants' breach of contract in "the natural course of

events." Salem Enq'q and Constr. Corp. v. Londonderry Sch.

Dist.,

(1982). The "scope of 'foreseeable,'

and therefore recoverable, damages is narrower in a contract case

than in tort." Zareas,

. As in tort cases,

however, the foreseeability of conseguential damages in contract

cases ultimately is a guestion of fact for the jury. Jarvis v.

Prudential Ins. Co. of Am.,

(1982).

Here, the McKennas seek conseguential damages for the time

and expense of searching for another caretaker for James and the

time and expense of arranging James's counseling.9 Mrs. McKenna

9 The McKennas do not seek damages for emotional distress under these counts. See Crowley v. Global Realty, Inc.

(1984) ("[RJecovery of damages for mental suffering and

17 asserts that she specifically informed the defendants of her

urgent need for childcare upon her return to school. Thus, a

jury could conclude that the defendants "had reason to know the

facts and to foresee the injury" that could result from their

breach of contract. Emery v. Caledonia Sand & Gravel Co.,

(1977) (quoting Johnson v. Waisman Bros.,

(1944)). In addition, a reasonable jury could find that

the expenses of searching for a caretaker and arranging for a

counselor for James qualify as foreseeable damages flowing from

the defendants' alleged failure to provide a qualified au pair

"of good character" to the McKennas. Therefore, I deny defen­

dants' motion for summary judgment on the plaintiffs' breach of

contract and breach of warranty counts.

E. James McKenna's Claim for Vicarious Liability

The defendants argue that they cannot be held vicariously

liable for any alleged abuse committed by Lilholm because he was

not their agent or employee, or that, in the alternative, his

intentional acts were outside the scope of his employment.

The terms "employer" and "employee" are terms of art under

the doctrine of respondeat superior. To determine whether a

emotional distress is not generally permitted in actions arising out of breach of contract.").

18 person is an "employee" for the purposes of the respondeat

superior doctrine, the New Hampshire Supreme Court examines the

totality of the circumstances, asking "'whether on all the facts

the community would consider the person an employee.'"

Boissonnault v. Bristol Federated Church,

(1994) (quoting Hunter v. R.G. Watkins & Son, Inc.,

(1970)). It is not necessary for Lilholm to have been paid

by the defendants in order to be deemed their employee for

respondeat superior liability. See

(volunteers may be

employees for purposes of respondeat superior). An employer's

control over the alleged employee is a significant factor to

consider, but a defendant need not have controlled the "manner

and the means of the performance of the work in order for the

doctrine to come into play." Boissonnault,

.

In this case, the McKennas have presented evidence that the

defendants selected Lilholm, matched him with their family, were

responsible for training him, and provided a community counselor

to supervise and aid Lilholm throughout the year. In addition,

the defendants' contract with Marsha McKenna set the terms of

Lilholm's employment, how many hours Lilholm would work per week,

how much and often Lilholm would be paid, and how much vacation

Lilholm would have. If defendants decided that the McKennas were

19 not abiding by their requirements, they had the power to remove

Lilholm from the McKennas' home without paying a refund. The

McKennas did not have the reciprocal power to fire Lilholm if he

performed unsatisfactorily. Rather, in order to dismiss Lilholm,

the McKennas had to follow specific procedures established by the

defendants. These factors, taken together, and weighed in the

light most favorable to the McKennas, are sufficient to demon­

strate that Lilholm was the defendants' employee for the purposes

of respondeat superior liability.

Even if Lilholm was an employee of the defendants, however,

respondeat superior liability will be unavailable if Lilholm did

not commit his tortious acts incidental to or during the scope of

his employment. See Trahan-Laroche v. Lockheed Sanders, Inc.,

(1995). Behavior within the scope of employ­

ment "must be actuated at least in part by an object to serve

the employer." Daigle v. City of Portsmouth,

(1987) (citing Restatement (Second) of Agency § 228(1) (c)

(1958)). Outrageous acts or inflictions of punishment out of

proportion to the necessities of an employer's business needs are

evidence that the employee departed from the scope of employment,

and instead acted for purely personal reasons. Restatement

(Second) of Agency § 245 cmt. f (1958).

20 An outrageous act, however, is not conclusive of whether an

employee is acting within his scope of employment. An employee

acting with a dual or misguided purpose to serve his employer may

subject his employer to liability. Maddex v. Ricca,

(D. Ariz. 1966); Sunseri v. Puccia,

(111. App. C t . 1981); Prosser, supra, § 70 at 502-05. An

employee's motivation is normally a guestion of fact for the

jury. See Trahan-Laroche,

; see also. Smith v.

American Express Travel Related Servs. Co.,

(Ariz. C t . App. 1994); John R. v. Oakland Unified Sch. Dist.,

(Cal. 1989); Sunseri,

; Birkner v.

Salt Lake County,

(Utah 1989).

In this case, a reasonable jury could find either that

Lilholm sexually assaulted James McKenna, an act that would most

likely be beyond his scope of employment as a matter of law, see,

e.g.. Smith,

, or that Lilholm did not abuse

James, but did threaten to remove his pants and photograph his

genitals in an improper effort to discipline him.10 Under the

10 According to Lilholm, James had made an attempt to pull down Lilholm's pants. Despite Lilholm's warnings to James not to do it again, James persisted. Eventually, Lilholm asserts that he grabbed a camera and threatened James by saying if he did it one more time, Lilholm would take a picture of him and put it in a magazine. James again tried to pull down Lilholm's pants, at which time, Lilholm pulled down James's pants and pretended to 21 latter scenario, Lilholm could be found to have been acting

within the scope of his employment. Because this factual dispute

potentially leads to two different conclusions as to whether

Lilholm's acts were within the scope of his employment, I deny

defendants' motion for summary judgment as to James McKenna's

claims for vicarious liability.11

F. James McKenna's Claims for Negligence

The defendants move for summary judgment on James McKenna's

claims that they were negligent for failing to properly select,

screen, and train Lilholm. They contend that James McKenna has

failed to demonstrate causation because he presents no evidence

that the defendants' negligence proximately caused his injury.

In response, James McKenna has produced expert testimony

from Dr. John F. Cusack of the Commonwealth Center for Consulta­

tion and Psychotherapy in Somerville, Massachusetts. Dr. Cusack

opines that certain unspecified pieces of information that the

take a photograph.

11 Defendants also argue that the release signed by Marsha McKenna acknowledges that the au pair provided by the defendants is not their employee or agent. I have already determined that Marsha McKenna's release of the defendants is unenforceable as to James's claims. Supra at III.A. The same reasoning defeats the argument that Marsha McKenna's agreement with the defendants estops James from arguing that Lilholm was the defendants' employee. 22 defendants could have learned about Lilholm's family, social, and

sexual history should have indicated a need for more rigorous

follow-up questioning. Although there is no indication that more

rigorous questioning would have revealed relevant information

about Lilholm's propensity to commit improper sexual acts. Dr.

Cusack ultimately concludes:

to a reasonable degree of certainty that Au Pair in America's inadequacies in their screening, selection, orientation, training, and supervision of Mr. Lilholm amounted to a substantial cause of the Plaintiffs' harm. If careful and proper procedures had been in place, in all likelihood Mr. Lilholm would not have been accepted or retained to care for children.

Dr. Cusack also concludes that "[p]roper orientation, training

and supervision would have recognized and addressed the problems

that surfaced in Mr. Lilholm's placement with the McKenna

family." It is unclear how Dr. Cusack reached his ultimate

conclusions. The defendants, however, have not moved to exclude

Dr. Cusack's testimony pursuant to Fed. R. Evid. 702 or otherwise

argued that his testimony is inadmissible. As a result. Dr.

Cusack's opinion must be given weight at this stage. Based on

his testimony, a reasonable jury could conclude that James's harm

was a foreseeable consequence of the defendants' negligence and

that the defendants' negligence was a substantial cause of

23 James's harm.12 Thus, I deny defendants' motion for summary

judgment as to James McKenna's negligence claims.

IV. CONCLUSION

I grant defendants' motion for summary judgment (document

no. 25) in part and deny it in part. Defendants are awarded

summary judgment with respect to Marsha McKenna's misrepre­

sentation counts (Counts XVII and XVIII).

SO ORDERED.

Paul Barbadoro United States District Court

September 12, 1997

cc: James C. Wheat, Esg. Peter G. DeGelleke, Esg.

12 This evidence also distinguishes this case from Doe v. Bovs Clubs of Greater Dallas, Inc.,

(Tex. 1995), cited by the defendants. In that case, "the plaintiffs' evidence did not raise a fact guestion concerning cause in fact or foreseeability."

.

24