                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                               October 20, 2006
                              FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      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


         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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
                                                                           1
by Jordan that tended to indicate that no teachers were in the room.

       The district court concluded that Miller had not met her burden of proving

       1
         Miller’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.

                                                2
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


                                              3
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
                                                                       2
in finding that the CDC did not breach its duty of ordinary care. See Perez v. United



       2
        Miller 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).

                                              4
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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