United States District Court, D. Massachusetts
MEMORANDUM Of DECISION AND ORDER
TIMOTHY S. HILLMAN, DISTRICT JUDGE
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.
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.
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)).
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
and Pike Family Background
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.
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.
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.”
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.
Pike Grandchildren and their Relationship with John
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.
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.
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.
Doe's Family Background and Pre-Disclosure Relationship
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.
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 John play the tickle game with Hunter in Hopedale (it
was “the same game” that John had played with her
when she was a child.) Hunter described the tickle game as
follows: “It was with John and we would be on the
ground, lying down on the ground and locked under his legs,
and he had to ask us questions and if we got them wrong he
would tickle us.”
never told her father, John that he was not permitted to play
the tickle game with her children, but she would tell him to
stop when she saw her daughter getting upset. Kim's
husband, Brian observed John play the tickle game with Hunter
and Jane Doe. At no point in time while living in Hopedale
was Brian concerned about John's interactions and conduct
with Hunter and Jane Doe. In Hopedale, Brian observed John
sitting on couch with Hunter and Jane Doe. In 2006, Kim,
Brian, Hunter and Jane Doe moved from Hopedale to Upton, MA
where they resided until 2009. John and Barbara would visit
Kim and Brian while they lived in Upton six or seven times a
year. While living in Upton, Jane Doe was between 6 and 9
years old. On occasion Kim would go out with Barbara and
leave John home with Hunter and Jane ...