Bobbi Raznor v. United States ( 1997 )


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  • [NOT FOR PUBLICATION]
    No. 96-2100
    KEVIN AND BOBBI RAYZOR, THE MINOR BR,
    REPRESENTED BY HER PARENTS, KEVIN AND BOBBI RAYZOR,
    Plaintiffs, Appellants,
    v.
    UNITED STATES OF AMERICA,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Salvador E. Casellas, U.S. District Judge]
    Before
    Selya, Circuit Judge,
    Coffin and Cyr, Senior Circuit Judges.
    Andres Guilemard-Noble with whom Joan S. Peters was on brief
    for appellants.
    Steve  Frank, Attorney, Appellate Staff Civil Division,
    Department of Justice, with whom    Frank
    W.
    Hunger, Assistant
    Attorney General,
    Guillermo Gil
    , United States Attorney, and
    Robert
    S. Greenspan
    , Attorney, Appellate Staff Civil Division, Department
    of Justice, were on brief for appellee.
    JULY 22, 1997
    COFFIN, Senior
    Circuit
    Judge. Appellants Kevin and Bobbi
    Rayzor seek to hold the United States responsible for the sexual
    abuse of their daughter by a babysitter whose name they obtained
    from a list allegedly recommended by the Navy. The Rayzors filed
    suit for damages under the Federal Tort Claims Act, 28 U.S.C. S
    1346(b), asserting that the Navy was negligent in directing them to
    select a babysitter from a Red Cross generated list without first
    checking the qualifications of the individuals on the list. The
    district court granted summary judgment for the government on both
    that claim and a related First Amendment claim. We affirm.
    I. Background
    Appellant Kevin Rayzor, a petty officer in the Navy, was
    stationed with his wife and young daughter at a base in Ceiba,
    Puerto Rico. The Rayzors claim that the Navy instructed them to
    hire babysitters for sporadic child care needs only from a list
    provided by the American Red Cross at the base's Family Service
    Center. That list contained the names of teenagers who had
    completed the nine-hour Red Cross babysitting course offered at the
    Two points warrant some elaboration. First, there is some
    confusion about whether the district court misunderstood the
    allegation to be that the Navy advised the Rayzors
    not to hire from
    the Red Cross list. Unraveling the confusion is unnecessary
    because our assumption that the Navy did direct the Rayzors to use
    the list exclusively is most advantageous to the Rayzors, whose
    claim of negligence would be absurd, rather than just fruitless, if
    they had hired a sitter from the list despite the Navy's explicit
    directive not to do so.
    Second, the Rayzors' assertion that they were directed to hire
    from the Red Cross list is based only on their own statement and is
    not attributed to any particular individual or document. For
    purposes of summary judgment, we accept the allegation as true.
    base. The course covered the basics of first aid and outlined the
    duties of a babysitter.
    The Rayzors hired an individual from the list, and discovered
    the next day that she had physically and sexually abused their two-
    year-old daughter. They subsequently filed their complaint under
    the FTCA alleging that the Navy was negligent in "certif[ying]" the
    sitter, and in falsely representing that she was qualified to
    provide safe babysitting services. Appellants also alleged that
    the Navy violated their First Amendment rights by warning them "to
    keep silent" about the incident.
    The district court granted summary judgment for the
    government. It ruled that the FTCA was inapplicable because the
    Red Cross and its employees were not government employees whose
    conduct was actionable under the statute. It also held that an
    FTCA action was not viable because the Navy's alleged actions did
    not constitute negligence under local law. Although the government
    did not respond in its summary judgment motion to the First
    Amendment claim, the district court
    sua
    sponte dismissed the claim
    The Navy sought to have the sitter prosecuted but the U.S.
    Attorney's office declined to prosecute because the sitter was a
    juvenile.
    The Navy operates two fulltime child care programs at the
    base, the Child Development Center/Preschool (CDC) and a Family
    Home Care Program (FHC), neither of which is at issue in this case.
    The Navy has issued detailed instructions for each of these
    programs, including background checks for FHC providers, who are
    private individuals who care for up to six children in a Navy
    housing unit.  See App. at 24-41.
    for lack of supporting evidence. The Rayzors then filed this
    appeal.
    II. Federal Tort Claims Act
    Our review of a grant of summary judgment is de novo, and we
    evaluate the record in the light most favorable to the non-moving
    party.  See Coyne v. Taber Partners I, 
    53 F.3d 454
    , 457 (1st Cir.
    1995). Even from that vantage point, however, the Rayzors'
    negligence claim lacks luster.
    Their claim, in essence, is that the Navy should have probed
    the backgrounds of the babysitters on the Red Cross list before
    recommending them to base residents. Under Puerto Rico law, which
    is applicable in this FTCA suit,
    see
    Attallah v.
    United States
    , 
    955 F.2d 776
    , 781 (1st Cir. 1992), such a claim is actionable only if
    a reasonable factfinder could find that the Navy had a duty to
    exercise due diligence to avoid foreseeable risks to the Rayzors,
    and that the Navy failed to fulfill that responsibility.      See
    Coyne, 
    53 F.3d at 458-60
    ;
    Malave Felix
    v.
    Volvo Car Corp.
    , 
    946 F.2d 967
    , 971 (1st Cir. 1991). Even assuming, as the Rayzors argue at
    length, that the Navy acquired a duty to protect them as a result
    of its recommendation that they hire a babysitter from the Red
    Cross list -- a legal proposition about which we have doubts -- we
    think no reasonable factfinder could find either a failure to
    exercise due diligence or a foreseeable risk of harm.
    The Rayzors do not appeal the court's holding that Red Cross
    workers are not federal employees, limiting their challenge on the
    FTCA claim to the court's ruling that they failed to make a viable
    showing of negligence.
    The Navy's only representation about the sitters on the Red
    Cross list was an implicit statement that they were preferable to
    other sitters because of their relationship with the international
    humanitarian agency, making them something of a known quantity.
    The Rayzors offer no evidence to support their contention that the
    Navy lacked due diligence in failing to investigate the individuals
    whose names appeared on the list. They cite to no incidents of
    child abuse involving Red Cross sitters generally, or concerning
    the specific individuals on the list at the base in Ceiba.
    Moreover, all of the individuals on the Red Cross list were
    teenagers, ranging in age from 11 to 17, and we cannot accept that
    a reasonable factfinder would have concluded that the Navy had an
    obligation to do background checks on minors who had undergone Red
    Cross training, in the absence of particularized concern. In
    short, a reasonable person would not have foreseen a need to
    investigate these Red Cross-affiliated sitters to prevent harmful
    criminal conduct.
    Although foreseeability typically is both a "factbound and
    case-specific" issue, see  Coyne, 
    53 F.3d at
    460 -- foreclosing
    summary judgment -- "the evidence must be such that the factfinder
    rationally can conclude that the risk complained of is among the
    universe of risks recognizable by reasonably prudent persons acting
    with due diligence under the same or similar circumstances."  
    Id.
    (citing Pacheco v. Puerto
    Rico
    Water
    Resources
    Auth., 
    112 D.P.R. 367
    , 372 (1982)). As we have noted, however, the Rayzors have
    proffered no basis upon which a factfinder could conclude that it
    was foreseeable to the Navy that this, or any other teenage
    babysitter who had taken a Red Cross babysitting course, would
    engage in criminally abusive mistreatment of her charge.
    Cf.,
    e.g.,
    Coyne, 
    53 F.3d at 461
     (reversing summary judgment where defendants
    were on notice of the potential for violence);  Elba v. Univ.
    of
    P.R., 90 J.T.S. 13 (1990) (Official English Translation: No. RE-86-
    214, slip op. at 21-23) (university's failure to provide adequate
    security in high-risk area gave rise to violent assault of female
    student);
    Negron v.
    Orozco Rivera
    , 
    113 P.R. Offic. Trans. 921
    , 927-
    29 (1983) (reasonable person would have foreseen eruption of
    violence in police station, given prior confrontation between armed
    officer and decedent).  See also  Mas v. United
    States, 
    984 F.2d 527
    , 530 (1st Cir. 1993) (showing of negligence under Puerto Rico
    law requires "a demonstration that the defendant has either actual
    or constructive knowledge of a dangerous condition"). We therefore
    conclude that the Rayzors failed to generate a sufficient factual
    dispute to survive the government's motion for summary judgment on
    the FTCA claim.  Accordingly, we affirm the district court's
    dismissal of that claim.
    III. First Amendment Claim
    We previously have observed that liability for a breach of
    duty under Puerto Rico law requires a causal relationship between
    the breach and the ensuing harm, meaning that "'the damage must
    have been foreseeable and
    avoidable had the omitted action been
    timely taken,'" Coyne v. Taber
    Partners
    I, 
    53 F.3d 454
    , 459 (1st
    Cir. 1995) (quoting Elba v.  Univ.
    of
    P.R., 90 J.T.S. 13 (1990)
    (Official English Translation: No. RE-86-214, slip op. at 12)
    (emphasis added)). The Rayzors offer no evidence that a background
    check would have revealed the unsuitability of the sitter.
    The Rayzors also alleged that the government violated their
    First Amendment rights by threatening that they should keep quiet
    about the abuse incident. The government's motion for summary
    judgment did not address this claim, but the court dismissed it
    sua
    sponte because it could not find any proof in the record to verify
    the allegation. The court stated in its opinion:
    Mr. Rayzor has failed to identify or indicate who, if
    anyone, threatened him. In our opinion, a claim not
    supported by affirmative evidence does not present a
    genuine issue for trial. Unsupported allegations or
    denials are not enough to defeat a motion for summary
    judgment.  Anderson v.  Liberty
    Lo[bby],
    Inc. 
    477 U.S. 242
    , 252 (1986).
    The only apparent evidence on this claim contained in the
    appellate materials consists of two affidavits, one from each of
    the Rayzors. The content relevant to a First Amendment claim in
    Kevin Rayzor's affidavit is as follows:
    [W]e were harassed and threatened by Navy officers in an
    attempt to cover-up the incident. . . . I was told by an
    officer of the Navy that I better keep my wife's mouth
    shut, or I would have problems with my records.
    Bobbi Rayzor's affidavit merely repeats the allegation of
    harassment and threats, and alleges that action on her application
    to be licensed as a Child Care Provider was delayed because of the
    couple's complaints about the incident.
    We agree with the district court's judgment that these
    statements are inadequate to warrant a trial on the First Amendment
    claim. They fail to identify who made the threatening statement(s)
    or when they were made, the basis for Mrs. Rayzor's assertion that
    this incident affected her application to become a base Child Care
    Provider, or how Officer Rayzor's records could be affected by
    public disclosure of the assault.
    Appellants imply in their brief that summary judgment on this
    claim is premature because no discovery has been conducted. So far
    as we can tell, lack of discovery was not an issue below. The
    government moved for summary judgment on March 18, 1994, and the
    district court dismissed the case more than two years later on July
    28, 1996. Appellants do not assert that they requested, but were
    denied, discovery. Instead, they maintain that their affidavits
    constituted "ample evidence" to survive summary judgment.
    As we already have explained, we disagree that their proffer
    is adequate. It is virtually axiomatic that "neither 'conclusory
    allegations,' . . . nor '[b]rash conjecture coupled with earnest
    hope that something concrete will materialize, is []sufficient to
    block summary judgment.'"  J. Geils Band Employee Benefit Plan v.
    Smith
    Barney
    Shearson,
    Inc., 
    76 F.3d 1245
    , 1251 (1st Cir. 1996)
    (citations omitted). This is all the Rayzors have offered.
    We have some concern about the court's  sua
    sponte grant of
    summary judgment on the First Amendment claim in light of the
    government's failure to move for brevis disposition on that claim.
    This, however, was not an ambush. In its Reply to Plaintiffs'
    Opposition to Defendant's Motion for Summary Judgment, the
    government pointed to the lack of support for both the allegations
    of threats and Mrs. Rayzor's contention that the government stalled
    her license to become a Child Care Provider. The Reply was filed
    on June 27, 1994, more than two years before the court ruled.
    We therefore are satisfied that appellants had adequate notice
    of the government's challenge to the sufficiency of their "threat"
    allegations. See
    Penobscot Indian Nation
    v.
    Key Bank of Maine
    , 
    112 F.3d 538
    , 562 (1st Cir. 1997) (quoting    Berkovitz v.  Home
    Box
    Office, Inc., 
    89 F.3d 24
    , 29 (1st Cir. 1996)) ("'targeted party'"
    must be given "'appropriate notice and a chance to present its
    evidence on the essential elements of the claim or defense'").
    In these circumstances, to preclude summary judgment on the First
    Amendment claim based on the government's failure to seek it
    explicitly would be to waste judicial resources for the sake of
    pointless technicality. We decline to do so.
    For the foregoing reasons, the summary judgment of the
    district court is affirmed.