## Facts

- Judith Broderick left her three-year-old daughter (J.S.J.) in a church “tiny tots” program while attending services.
- A teacher, Shirley Gilman, replaced the prior supervisor in mid-1983 and was later accused of sexually abusing the child while in the program.
- After Gilman began supervising, the child resisted attending, displayed fear and distress when approaching the classroom, and Broderick observed rashes and genital-area pain complaints.
- After parental divorce, the child visited the church with her father on March 25 and April 8, 1984; following each visit, Broderick noticed blood on the child’s underwear, and after April 8 also in the toilet.
- When questioned about possible perpetrators, the child denied abuse by family members and referred instead to a “mean lady at the church.”
- The child reacted strongly upon seeing Gilman and identified her as the “mean lady” who hurt her; the child also made similar identifications to Broderick’s boyfriend and to a child psychologist.
- Medical and expert evaluations supported that sexual abuse occurred, but there was no physical evidence directly identifying the perpetrator apart from the child’s out-of-court statements and reactions.
- Broderick sued Gilman and the church for damages based on the alleged abuse and related negligence.

## Issues

1. Whether the child’s out-of-court statements identifying Gilman as the abuser were inadmissible hearsay or admissible under one or more hearsay exceptions.
2. Whether, considering only evidence that would be admissible at trial, the record contained a genuine issue of material fact precluding summary judgment for Gilman and the church.

## Decision

- The Alaska Supreme Court reversed the superior court’s grant of summary judgment and remanded.
- The court held the superior court applied an overly narrow view of potential hearsay exceptions and improperly excluded the child’s identification statements categorically.
- The court concluded that some of the child’s statements, particularly those made in medical or psychological assessment and treatment contexts, could be admissible.
- With admissible statements and supporting evidence of abuse viewed in the nonmovant’s favor, a reasonable fact-finder could find Gilman was the abuser; summary judgment was therefore improper.

## Legal Principles

- On summary judgment, supporting and opposing materials must set out facts that would be admissible in evidence; inadmissible hearsay cannot be used to create or defeat a factual dispute.
- A court must analyze each out-of-court statement in context; a child’s repeated identifications are not treated as a single undifferentiated hearsay item.
- Statements made for purposes of medical diagnosis or treatment may be admissible, and in child sexual-abuse matters the identity of the abuser can be reasonably pertinent to diagnosis or treatment.
- A child’s statements may also qualify under other established hearsay exceptions (including excited utterance or then-existing mental or emotional condition) depending on the circumstances of the utterance.
- If admissible evidence permits competing inferences on a material fact, summary judgment must be denied.

## Conclusion

The court reinstated the case because the child’s identification statements were not automatically excluded as hearsay and, when properly assessed under applicable exceptions and summary-judgment standards, they supplied evidence creating triable fact questions about the perpetrator’s identity and the defendants’ resulting liability.


Broderick v. King’s Way Assembly of God Church, 808 P.2d 1211 (Alaska 1991)