Miller v. USA

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 05-60386
Summary Calendar
__________________________
MARY MILLER, legal guardian of Jordan Miller,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(No. 1:02-CV-656)
___________________________________________________
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this Federal Tort Claims Act (“FTCA”) case, Mary Miller, on behalf of her minor
child, appeals the district court’s judgment, following a bench trial, that Miller take
nothing from the United States on her claim that an Air Force Child Development Center
(“CDC”) negligently supervised Miller’s minor child, thereby allowing the child to be

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1Miller’s position is that Jordan testified, by affidavit and at trial, that there were no
CDC employees in the room, not that she merely did not see any employees. The transcript
of trial reveals that Jordan stated that no employees were in the room. However, the
transcript also reveals that Jordan based her belief that there were no CDC employees in
the room on the fact that she neither saw nor heard them.
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abused by another child under the CDC’s care. We affirm.
I. FACTS AND PROCEEDINGS
Miller alleged that her daughter, Jordan, was injured during an encounter with a
four-year old boy, J.C.; Jordan was five years old at the time. The alleged incident occurred
while both children were attending the CDC at Keesler Air Force Base in Biloxi,
Mississippi. After the district court denied the CDC’s motion for summary judgment as to
claims brought on behalf of Jordan, the case was tried as a bench trial. At the trial, Jordan
testified that, during nap time, J.C. laid on her, removed some of her clothing, and thrust
a plastic toy between her legs, causing injury. The district court found that, while an
incident similar to what Jordan described may have occurred, there were inconsistencies
between Jordan’s testimony and other fact testimony that called into question Jordan’s
version of events: The court found that the physical evidence was not consistent with a
thrust as Jordan described it, and Jordan did not cry out under circumstances that, if true,
“must have been extremely painful and stressful.” The district court credited the CDC
employees who testified that the room where Jordan and J.C. napped would have been
monitored on the date in question; accordingly, the district court did not credit testimony
by Jordan that tended to indicate that no teachers were in the room.1
The district court concluded that Miller had not met her burden of proving

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causation and that Miller did not prove that the CDC had breached a duty of ordinary
care. Specifically, the district court stated that “[t]here is no evidence in the record which
tends to indicate that J.C. had ever assaulted this child before or for that matter had ever
assaulted any other child. Consequently, the CDC [had] no notification or had no reason
to believe that an incident of such a short duration and in which there was no notification
would even occur.” The district court entered a judgment that Miller take nothing.
II. STANDARD OF REVIEW
This court reviews bench trial findings of fact for clear error and conclusions of law
de novo.
Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). Evidentiary and
discovery-related rulings are reviewed for abuse of discretion.
See Canady v. Bossier
Parish Sch. Bd., 240 F.3d 437, 444 (5th Cir. 2001).
III. DISCUSSION
In this FTCA action, the substantive law of Mississippi applies.
See Cleveland ex rel.
Cleveland v. United States, 457 F.3d 397, 403 (5th Cir. 2006). The elements of negligence
under Mississippi law are (1) duty, (2) breach of that duty, (3) causation, and (4) injury.
L.B. Gulledge v. Shaw, 880 So.2d 288, 292 (Miss. 2004). Schools are not the insurers of the
safety of students, but they have the duty of exercising ordinary care.
Summers v. St.
Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1213 (Miss. 2000). In arguing that the district
court erred, Miller contends that the record evidence supports a view that the encounter,
as described by Jordan, did occur. Miller also argues that the court’s finding that the CDC
did not breach its duty was erroneous because none of the defendants’ witnesses could

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2Miller also argues that the district court abused its discretion when it denied Miller
the opportunity to depose an Air Force attorney who signed answers to interrogatories.
However, as noted by the government, this attorney was not a fact witness; he was an Air
Force attorney charged with the duty of collecting information regarding this lawsuit
because it was more efficient for one person to perform this task. Miller had ample
opportunity to discover facts from other available witnesses who had knowledge of the
pertinent circumstances. Miller has not demonstrated that the district court abused its wide
discretion afforded under FED. R. CIV. P. 26(b).
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contradict Jordan’s versions of events and because Jordan’s testimony establishes that no
CDC employees were in the room.
We cannot conclude that the district court clearly erred. That the event as described
by Jordan, or something similar, did occur does not by itself establish that the CDC
breached its duty of care because a school is not the insurer of a child in its care.
Summers,
759 So.2d at 1213. As to whether the CDC breached its duty of care by not adequately
supervising the children, the district court credited CDC’s version of events. The court was
presented with conflicting evidence as to whether CDC employees were in the room when
the events precipitating this lawsuit occurred. Jordan stated that no teachers were in the
room based on the fact that she neither saw nor heard them. Other witnesses testified that
the room would have been monitored both by an attendant in the room and by closed-
circuit television. We also note that testimony indicated that Jordan did not cry out, and
the district court found—based on testimony by CDC employees—that the CDC had no
reason to suspect that J.C. or any other student would have engaged in the actions alleged.
The district court’s findings were not clearly erroneous, and the district court did not err
in finding that the CDC did not breach its duty of ordinary care.2
See Perez v. United

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States, 830 F.2d 54, 58–59 (5th Cir. 1987) (affirming a finding of comparative negligence by
the plaintiff when conflicting evidence was presented);
see also Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”).
IV. CONCLUSION
The judgment of the district court is AFFIRMED.

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