Wake v. Harmony Grove School District 614 et al

Filing 108

ORDER denying 88 Defendant Mays's motion for summary judgment; and denying 106 Plaintiff's motion for leave to file a surreply. Signed by Judge James M. Moody Jr. on 11/17/2021. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ABBEY MICHELLE WAKE
v.

PLAINTIFF
Case No. 4:20-cv-91

HARMONY GROVE SCHOOL
DISTRICT 614, et. al

DEFENDANTS
ORDER

Pending is Defendant Kristina Mays motion for summary judgment on the single claim
against her—that she breached her statutory obligation as a mandatory reporter of suspected
child abuse. The Court previously denied her motion to dismiss this claim and is now presented
with evidence to consider the issue. Because the Court finds that genuine issues of material fact
remain, her motion for summary is denied.
Mays’s now ex-husband Gary Vice (“Vice”) has been convicted of sexually assaulting
Plaintiff, the couple’s babysitter and a daughter of family friends, when she was between the
ages of thirteen and sixteen years old. Mays, a foster parent and licensed nurse, does not dispute
that she was a mandatory reporter of child abuse pursuant to Ark. Code Ann. § 12-18-402. That
statute provides that a mandatory reporter “shall immediately notify the Child Abuse Hotline if
they have (1) “reasonable cause to suspect that a child has been subjected to child maltreatment”
or (2) “observes a child being subjected to conditions or circumstances that would reasonably
result in child maltreatment.” Ark. Code Ann. §12-18-402(a)(1) and (2). There is another
statute at play, one that imposes civil liability on a mandatory reporter who “purposely fails” to
make the report. Ark. Code Ann. § 12-18-206. Mays challenges the sufficiency of Plaintiff’s
evidence to establish the elements of both statutes.

Facts
Plaintiff’s family and the Vice family were long-time friends who attended church
together and socialized regularly. Plaintiff was continually over at the Vice home either with her
family or alone. From the time she was twelve or thirteen, Plaintiff babysat regularly for the
Vice family’s two younger sons. Mays was a registered nurse and Vice was correctional officer
with the Arkansas Department of Corrections. Due to their work schedules and long shifts,
Plaintiff regularly got the boys ready for school and walked them to school and walked them
home after school. The school was about 200 meters from the Vice home. Plaintiff was not
usually paid for taking care of the boys. There were many times that Plaintiff would spend the
night at the Vice home to be there to help in the morning.
Plaintiff testified at her deposition as follows. Vice first sexually assaulted her when she
was thirteen years old and that it happened too many times to count. (Doc. 92-2, p. 3). The
assaults occurred over four years and took place at the Vice home, at the home of the Vice’s
oldest daughter, at Mays’ parents’ house, in parking lots, on dead end roads, and once at “duck
camp.” Plaintiff was at the Vice home every day during the time from 2013 to 2015. Vice
would sexually assault her at the Vice home when Mays had gone to bed, but Mays never
witnessed Vice sexually assaulting her.
Plaintiff further testified that Mays would come home and found her there with Vice
when the boys were not there. Mays would come home and the front door would be locked—the
family didn’t keep keys to the house, the just left it unlocked normally—so Mays had to knock to
get in. It took Vice one two minutes to get dressed and answer the door. When he opened the
door to Mays, Plaintiff was also there in the house even though she was supposed to be at school.
Mays would sometimes ask Vice what Plaintiff was doing there “but she never made a big deal.”

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(Id. pp. 4, 11-12).
Plaintiff further testified that one time Mays called the home and asked one of their sons,
Lucas, where his dad was, and Lucas told her that his dad and Plaintiff were in the bedroom with
the door locked. (Id. pp. 7, 11). Plaintiff did not hear the question or response, but Vice told her
that was the exchange. Then Vice got on the phone with Mays and Plaintiff heard him tell Mays
that he and Plaintiff were not in the room together, although they had been together in a front
bedroom. At some point, Vice told Plaintiff that Mays was asking him questions like why he had
so many calls from Plaintiff “and stuff like that.” (Id. p. 7). According to Plaintiff she and Vice
texted daily, probably starting when she was thirteen.
According to Mays’s deposition testimony, she had access to Vice’s telephone and had
looked at it. She never saw anything that gave her pause. She testified that she didn’t recall
seeing correspondence with Plaintiff on his phone. She did see phone calls to and from Plaintiff
on Vice’s phone but did not think it was uncommon since she was the couple’s babysitter.
Earlier in their marriage Vice had an affair that Mays found out about when she walked in on
Vice and a woman in their house. On the day Vice was arrested, Mays told police that she knew
he was having an affair. Mays had wanted to confront him the night before but “couldn’t figure
out how to confront him.” (Doc. 97-1 p. 65). She stated that he was “acting differently than he
normally did. . . . [she] could tell something was on his mind, he was on the phone all the time.
He would go outside on the phone.” When Mays asked him who he was on the phone with, he
would tell her different people Id. at 66.
When asked whether she had been told by Lucas about his dad being in the locked
bedroom with Plaintiff, Mays testified that she does not recall that statement at all. (Doc. 97-1, p.
93). Vice also testified that he did not recall being asked by Mays about being in a locked

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bedroom with Plaintiff. ((Doc. 97-3, p. 33). When asked if she knew that Plaintiff would
sometimes be at the Vice home during the school day, Mays initially answered no, but then
recalled that Plaintiff would sometimes go over to the Vice home when she was not feeling well
or had gotten her period since their house was so close to the school, but Mays did not know how
frequently and did not know if Vice was ever there during those times.
Summary Judgment Standard
Summary judgment is appropriate only when the evidence, when viewed in the light
most favorable to the nonmoving party, shows that there is no genuine issue of material fact and
that the defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial burden is on the moving party to
demonstrate the absence of a genuine issue of material fact. Celotex Corp., at 323. The burden
then shifts to the nonmoving party to establish that there is a genuine issue to be determined at
trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997). “Rule 56 must be
construed with due regard not only for the rights of persons asserting claims and defenses that
are adequately based in fact to have those claims and defenses tried to a jury, but also for the
rights of persons opposing such claims and defenses to demonstrate in the manner provided by
the Rule, prior to trial, that the claims and defenses have no factual basis.” Celotex Corp., at
327.
Analysis
Mays argues that Plaintiff cannot establish liability under the Child Maltreatment Act
because she cannot prove (1) that Mays had reasonable cause to suspect that Plaintiff had been
subjected to child maltreatment or (2) that Mays had observed Plaintiff being subjected to
conditions or circumstances that would reasonably result her child maltreatment.

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Ark. Code

Ann. §12-18-402(a)(1) and (2). She further argues that even if Plaintiff could prove that Mays
had reasonable cause to suspect or had observed Plaintiff’s maltreatment at the hands of Vice,
Plaintiff has no proof that Mays purposely failed to make the report as required to establish civil
liability pursuant to Ark. Code Ann. § 12-18-206.
As Mays points out, Arkansas case law gives little guidance on when reasonable cause
exists to suspect that a child has been maltreated. Viewing the evidence most favorably to the
nonmoving party, as it must, the Court finds that genuine issues of material fact remain on this
issue of reasonable cause. Plaintiff has provided evidence that Mays had come to her normallyunlocked home to find the door locked and Vice and Plaintiff inside alone on a school day and
that on another occasion Mays had been told by her son that Vice and Plaintiff had been behind a
locked bedroom door when Mays called looking for Vice. Mays’s testimony is that she did not
recall those incidents. In addition, Plaintiff has testified that Vice sexually assaulted her on a
near-daily basis for several years, that several phone calls a day passed between her and Vice as
well as frequent texting, and that Mays had questioned Vice about the frequent calls. Based on
this evidence a jury could find that Mays had reasonable cause to suspect that Vice was
maltreating Plaintiff, whether she did suspect it or not.
These same fact questions also preclude the granting of summary judgment on the issue
of whether Plaintiff purposefully failed to make a child maltreatment report. The evidence is
undisputed that years ago Mays had called to report her suspicion that her stepson had sexually
assaulted her young daughter. When questioned about the incident, Mays testified that she knew
as a mandatory reporter that she needed to report her suspicion. If the jury finds that Mays did
find the front door locked in the middle of the school day with Vice and Plaintiff inside and that
on a separate occasion she was told by her son that Vice and Plaintiff were inside the locked

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bedroom, they could conclude that—as someone who knows her reporting obligation, she
purposefully failed to make the report.
Mays also argues that even if she had made a report, the report would not have been
accepted. The Court finds this argument unconvincing based on the evidence discussed above.
For these reasons, Defendant Mays’s motion for summary judgment (Doc. 88) is
DENIED. Plaintiff’s motion for leave to file a surreply (Doc. 106) is also DENIED.
IT IS SO ORDERED this 17th day of November, 2021.
_______________________________
UNITED STATES DISTRICT JUDGE

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