D.H. a Minor, by Her Parent, A.M.J., and A.M.J. Individually, Appellants-Plaintiffs,
Mary Whipple, Appellee-Defendant, and Robert Whipple (Deceased) Defendant Below.
from the Madison Circuit Court Trial Court Cause No.
48C03-1306-CT-101 The Honorable Thomas Newman, Jr., Judge
Attorneys for Appellants Robert H. Ebbs Theresa L.D. Ebbs
Katherine M. Marshall Glaser & Ebbs Indianapolis, Indiana
Attorney for Amicus Curiae Indiana Trial Lawyers Association
Scott A. Faultless Craig Kelley & Faultless LLC
Attorneys for Appellee Michael R. Bain Lauren M. Hardesty
Hume Smith Geddes Green & Simmons, LLP Indianapolis,
Attorneys for Amicus Curiae Defense Trial Counsel of Indiana
Lucy R. Dollens Jacob V. Bradley Quarles & Brady LLP
Summary and Issue
D.H. ("Child"), through her mother and guardian,
A.M.J. ("Mother"), and Mother individually
(collectively, the "Appellants"), bring this
interlocutory appeal from the trial court's grant of
summary judgment on the issue of negligence in favor of Mary
Whipple, Mother's mother and Child's maternal
grandmother. Appellants present only one question for our
review, whether the trial court properly granted summary
judgment. Concluding genuine issues of material fact remain,
we reverse and remand.
and Procedural History
Robert Whipple, Child's step-grandfather and Mary's
husband until his death in 2017, had a history of child
molestation. Robert molested his seven-year-old daughter on
multiple occasions in the 1960s and his six-year-old niece on
multiple occasions in 1980. As a result of his 1980 conduct,
Robert was charged with child molesting, a Class B felony. He
confessed to the underlying conduct and accepted a plea
agreement involving counseling in lieu of incarceration.
Mary met Robert sometime in 1990 and the two were married on
December 6, 1991. For medical reasons, Mary and Robert were
unable to have sex during their twenty-six-year marriage. By
the time of Mary and Robert's marriage, Mother was an
adult and living on her own. Sometime prior to 2009, Mother
and Child moved from Indianapolis to Anderson to help with
Mary's and Robert's many health issues. During this
time, and often at Mary's invitation, Child would visit
and stay the night at the Whipples' home.
These visits increased in December 2009, after Child turned
thirteen, because she was no longer eligible to continue
attending her daycare facility. Through phone calls with
Mary, Mother arranged for Child to stay at the Whipples'
home while Mother was at work. Mary, who was working in
Indianapolis at the time, told Mother that she would be home
shortly after Child was dropped off at the home. Mother would
drop Child off around 4:30 p.m. and Mary would arrive home
around 5:30 or 6:00 p.m. Mary told Mother that it was
"all right" for Child to be with Robert until she
returned home from work in Indianapolis. Appendix of
Appellants, Volume III at 50. From December 2009 through
January 2010, Robert molested Child on some twelve occasions.
Child did not initially report the molestations, however,
because Robert threatened to kill Mother. Almost two years
later, Child met with a detective and reported the
molestations, resulting in Robert's arrest. Following a
jury trial in May 2013, Robert was found guilty of two counts
of child molesting as Class A felonies, and one count of
child molesting as a Class C felony. Robert was sentenced to
thirty-five years in the Indiana Department of Correction.
In June 2013, Appellants commenced this action by filing a
complaint for damages against Robert and Mary. Count I
alleged that Robert committed assault, battery, invasion of
privacy, intentional infliction of emotional distress, and
negligent infliction of emotional distress. Count II alleged
negligence on behalf of Mary. Specifically, Appellants allege
in Count II:
12. On said occasions when Plaintiff Child was in the
custody, care and control of Defendant Mary Whipple, the
Defendant had a special responsibility to supervise Plaintiff
Child, to keep her from harm and out of danger, to make
careful preparations to enable Defendant to be vigilant in
ascertaining risks that may occur and to exercise reasonable
care for Child's safety and protection.
13. Defendant Mary Whipple was, without limitation:
a) Negligent in her supervision of Child as she knew, or
should have known, that Defendant Robert Whipple was sexually
molesting and assaulting Child, and Defendant Mary Whipple
failed to warn Child and/or [Mother] of the dangers, or
otherwise protect Child from said wrongful acts of her
husband, Defendant Robert Whipple, and the harm to result
b) Negligent and careless in failing to provide a safe
environment and/or premises for Plaintiff Child, a child of
thirteen (13) years of age, when Defendant Mary Whipple
accepted the responsibility to care for Child and was
entrusted with her safety and well-being.
App. of Appellants, Vol. II at 18-19.
Mary denied the allegations and eventually filed a motion for
summary judgment. As evidence in opposition to the motion,
Appellants designated the affidavit of Scott Sanderson, a
detective with the Anderson Police Department, who had
interviewed both Robert and Mary in the course of
investigating the molestations. Detective Sanderson's
affidavit included the following:
10. I interviewed Robert E. Whipple on February 24, 2012, at
the Anderson Police Department, in the course of my
investigation of the State of Indiana v. Robert E. Whipple,
Cause Number 48C06-1204-FA-000655 case; and,
a. During that interview, Robert E. Whipple admitted to
molesting two children, other than [Child], in the past; one
was his biological daughter, and the other was his niece by
b. During that interview, Robert E. Whipple informed me that
he had told his wife Mary Whipple that he had molested a girl
in the past.
c. It was and is my impression that, prior to December 20,
2009, Robert E. Whipple informed Mary Whipple that he
molested a child.
d. A true and accurate copy of the Anderson Police Department
Advice of Rights and my hand written notes which were
contained on the back side of the Advice of Rights are
attached hereto as Exhibit B.
e. A true and accurate copy of my type written notes of my
February 24, 2012 interview with Robert E. Whipple are
attached hereto as Exhibit C.
11. I spoke in person with Mary Whipple on February 24, 2012,
while she was at the Anderson Police Department with Robert
E. Whipple; and,
a. During that conversation, Mary Whipple stated that a long
time ago Robert E. Whipple told her that he had what she
referred to as a "small or minor indiscretion" a
long time ago.
b. It was and is my impression that the "small or minor
indiscretion" that Mary Whipple was referring was child
c. It was and is also my impression that Mary Whipple had
knowledge prior to December 20, 2009 that Robert E. Whipple
molested at least one (1) child.
d. During that conversation, I spoke with Mary Whipple about
the allegations [Child] had made against Robert E. Whipple;
and, although she denied the allegations, she advised
basically that it was all her fault because she worked all of
the time, and Robert E. Whipple was home alone with [Child].
e. A true and accurate copy of my hand written notes which
were contained on the back side of the Advice of Rights are
attached hereto as Exhibit B.
f. A true and accurate copy of my type written notes of my
February 24, 2012 conversation with Mary Whipple are attached
hereto as Exhibit C.
App. of Appellants, Vol. III at 85-86.
Appellants' designated evidence also included the
following testimony from Mary's deposition:
[Question]: If Detective Sanderson indicated that you made a
statement to him that you were aware of indiscretions that
[Robert] had had, would you have any reason to dispute that?
[Mary]: If I was aware of any indiscretions. I don't know
if I - don't know if I would have said that. I
wouldn't dispute anything I would have said to him
because if I said to him, it's on record, but you have to
remember that this is just such a blur, I can't remember
[Question]: Do you recall using the words indiscretions - or
[Mary]: That would be a word I would use.
[Question]: And what would you use that word for?
[Mary]: Well, these issues, these sexual issues are most
definitely indis- -- you ...