                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 07-1003
                               ________________

In re: Denise Irene Patch,               *
                                         *
          Debtor.                        *
____________________                     *
                                         *
Bryan Blocker, Trustee for the           *
Heirs and Next-of-Kin of Dillon          *      Appeal from the United States
Bryan Blocker,                           *      Bankruptcy Appellate Panel of the
                                         *      Eighth Circuit.
             Appellee,                   *
                                         *              [PUBLISHED]
      v.                                 *
                                         *
Denise Irene Patch,                      *
                                         *
             Appellant.                  *

                               ________________

                               Submitted: November 16, 2007
                                   Filed: May 29, 2008
                               ________________

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      Denise Patch appeals the judgment of the Eighth Circuit Bankruptcy Appellate
Panel (BAP). A divided BAP affirmed the bankruptcy court's sua sponte entry of
summary judgment in favor of Bryan Blocker, Trustee for the heirs and next of kin of
Dillon Blocker, concluding that Patch's unliquidated debt, owed to Blocker, is
nondischargeable under 11 U.S.C. § 523(a)(6). Because we conclude that Patch's debt
is dischargeable as a matter of law, we reverse.

                                          I.

      This bankruptcy dispute is the product of the extremely tragic death of Patch's
and Blocker's three-year old son, Dillon, who was murdered by Patch's live-in
boyfriend, Steven McBride.1 In March of 2001, Patch and McBride began dating.
Soon thereafter, the couple leased a two-bedroom apartment in Lakeville, Minnesota,
and began living together. Patch had two children from her prior relationship with
Bryan Blocker–Dillon and a five-year-old daughter. Both children lived in the
Lakeville apartment with Patch and McBride. Patch worked at a daycare center that
both children attended. Dillon also participated in speech-therapy programming
administered by the local school district.

       Shortly after Patch and McBride leased the Lakeville apartment, McBride began
physically abusing Dillon. Patch, who had received training in identifying and
reporting child abuse, knew that McBride was abusing her son, and she asked him to
stop. But McBride did not stop abusing Dillon, and Patch did nothing more to prevent
the abuse. Eventually, daycare personnel suspected that Dillon was being abused.
When Patch was questioned by coworkers about Dillon's bruises, she removed her
children from daycare and quit her job there. Patch also regularly cancelled Dillon's
speech-therapy classes to hide his visible bruising, and eventually, she removed Dillon
from his speech program to prevent discovery of the abuse. After quitting her daycare
job, Patch began working nights at Target. When Patch went to work, she left her
children at home with McBride.

      1
       We recite the facts in the light most favorable to Blocker, the nonmovant,
consistent with our summary judgment standard of review. See Williams v. Malar (In
re Marlar), 267 F.3d 749, 755 (8th Cir. 2001) (standard of review).

                                         -2-
       On September 17, 2001, Patch went to work at Target and left her children at
the apartment in McBride's care. Sometime early in the morning while Patch was at
work, McBride called her to tell her that Dillon was crying and had hurt himself in a
fall. Patch left Target early and went home to check on Dillon. When Patch arrived
home, she noticed a bruise on Dillon's forehead. While putting ice on Dillon's head,
Patch also observed that Dillon was having difficulty breathing and was not speaking
normally. More than once, Patch told McBride that she thought they should take
Dillon to see a doctor, but McBride told her that consulting a doctor was not
necessary. Instead, they put Dillon to bed and did nothing further. When Patch
awoke in the morning, she checked on Dillon and found him dead. Patch called 911.

       The autopsy report prepared by the Dakota County Coroner indicates that
Dillon died from blunt-force injuries to his head and abdomen. Acute injuries to
Dillon's head resulted in bleeding on the surface of his brain and mild swelling of his
brain. Dillon's acute injuries to his abdomen included bruising of his pancreas and
liver. The report also revealed an acute, small-bowel rupture and bleeding in the
peritoneal cavity. Dillon's older injuries included: bruises and abrasions on his chest
and arms consistent with human bite marks; multiple broken ribs in varying stages of
healing; burn marks on his right arm and hand; and a knocked-out tooth that he had
swallowed.

       Both McBride and Patch were criminally charged. McBride was convicted of
murder and sentenced to life in prison without the possibility of parole. Patch pled
guilty to second-degree manslaughter (a form of criminal negligence), see Minn. Stat.
§ 609.205, subd. 5, and she was sentenced to 96 months of imprisonment, double the
presumptive sentence. Her sentence was enhanced on the basis of aggravating factors,
including Dillon's vulnerability and her failure to obtain medical care for Dillon the
night before his death. See State v. Patch, No. C7-02-1333, 2003 WL 1481302 (Minn.
Ct. App. Mar. 25, 2003).



                                         -3-
         In December of 2003, Blocker, acting as the court-appointed trustee for
Dillon's heirs and next of kin, filed a wrongful-death action against McBride and
Patch in Minnesota state court. Count II of that action alleges that Patch negligently
entrusted Dillon to McBride, and Count III alleges that Patch negligently failed to
seek medical care for Dillon prior to his death. Both counts allege that Patch's
negligent conduct was the proximate cause of Dillon's wrongful death. In contrast to
the count against McBride, which alleges that he intentionally assaulted Dillon and
thereby caused his death, the counts against Patch allege only negligence and
carelessness; no intentional tort is alleged, neither is willfulness. Patch filed for relief
under Chapter 7 of the Bankruptcy Code and listed Dillon's estate as one of her
creditors. The wrongful-death action was stayed. Blocker then filed a complaint in
the bankruptcy court seeking a declaration that Patch's obligation is nondischargeable
because it is a debt "for willful and malicious injury" under § 523(a)(6). Patch filed
a motion for summary judgment, and after a hearing, with no written memorandum,
the bankruptcy court denied Patch's motion and granted Blocker summary judgment
sua sponte. On appeal, a divided BAP affirmed. Patch appeals. Blocker elected to
take no part in these appellate proceedings.

                                            II.

      The sole issue on appeal is whether the bankruptcy court and the BAP both
erred by concluding that Patch's debt, resulting from her role in Dillon's death, is
nondischargeable as a matter of law. Patch contends that the summary judgment
record is insufficient, as a matter of law, to permit a rational trier of fact to find for
Blocker, and therefore she is entitled to summary judgment. We agree.

      Like the BAP, we review the bankruptcy court's entry of summary judgment de
novo. See Marlar, 267 F.3d at 755. Summary judgment is proper if there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322-23 (1986).

                                            -4-
"Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal marks omitted). While we
view the record in the light most favorable to the nonmoving party and afford that
party all reasonable inferences, see id. at 587, the nonmoving party's production of a
mere "scintilla of evidence" in support of his position is insufficient to avoid summary
judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see also
Matsushita, 475 U.S. at 586 (explaining that the party opposing summary judgment
"must do more than simply show that there is some metaphysical doubt as to the
material facts").

       Section 523(a) of the Bankruptcy Code exempts certain debts from discharge
in bankruptcy, including debts "for willful and malicious injury by the debtor to
another entity." To establish that a debt is nondischargeable consistent with this
exception, the party seeking to prevent discharge must show by a preponderance of
the evidence that the debt is for both "willful . . . injury" and "malicious injury." Id.;
see Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 641 (8th Cir.) ("Willful
and malicious are two distinct requirements . . . ."), cert. denied, 528 U.S. 931 (1999).

       The meaning of "willful" under § 523(a)(6) is controlled by the Supreme
Court's decision in Kawaauhau v. Geiger, 523 U.S. 57 (1998).2 There, the Court
resolved a circuit split over the meaning of "willful," holding that "debts arising from
recklessly or negligently inflicted injuries do not fall within the compass of
§ 523(a)(6)." Id. at 64. Because the word "willful" in § 523(a)(6) modifies the word
"injury," the Court concluded that "nondischargeability takes a deliberate or
intentional injury, not merely a deliberate or intentional act that leads to injury." Id.


      2
         Because we conclude that the summary judgment record is insufficient as a
matter of law to permit a rational trier of fact to find that Patch's debt is "for willful
. . . injury" under § 523(a)(6), we do not address the statute's "malicious injury"
element.

                                           -5-
at 61. Like the en banc Eighth Circuit decision it affirmed, the Court relied on the
Restatement (Second) of Torts, observing that "the [§ 523](a)(6) formulation triggers
in the lawyer's mind the category 'intentional torts,' . . . . [which] generally require[s]
that the actor intend 'the consequences of an act,' not simply 'the act itself.'" Id. at 61-
62 (quoting the Restatement (Second) of Torts § 8A cmt. a (1964)).

        The scope of "willful . . . injury" under § 523(a)(6), however, is not limited to
circumstances in which the debtor desires to bring about the consequences of his
conduct. If the debtor knows that the consequences are certain, or substantially
certain, to result from his conduct, the debtor is treated as if he had, in fact, desired to
produce those consequences. Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848, 852
(8th Cir. 1997) (en banc) (citing the Restatement (Second) of Torts § 8A, cmt. a
(1965)), aff'd, 523 U.S. 57 (1998). Our Geiger opinion makes clear that in this circuit
the "willful" element is a subjective one, requiring proof that the debtor desired to
bring about the injury or was, in fact, substantially certain that his conduct would
result in the injury that occurred. See id. at 852-54 ("There is nothing in the record
. . . that would support a finding that Dr. Geiger believed that it was substantially
certain that his patient would suffer harm. . . . Even if Dr. Geiger should have
believed that his treatment was substantially certain to produce serious harmful
consequences, he would be guilty only of professional malpractice, not of an
intentional tort.").

       We begin our application of this legal authority by clarifying the scope of our
inquiry under § 523(a)(6). That provision exempts "debts . . . for willful and
malicious injury by the debtor." The plain language of § 523(a)(6) requires courts
applying the exemption to first determine exactly what "injury" the debt is "for," and
then determine whether the debtor both "willful[ly] and malicious[ly]" caused that
"injury." Here, the specific debt Patch seeks to discharge is her unliquidated
obligation to Blocker in the wrongful-death action, and the injury that gives rise to
that debt is Dillon's wrongful death. Contrary to the BAP's analysis, Patch's debt is

                                            -6-
not "for" her role in the prior abuse that Dillon suffered. The BAP erred by conflating
Patch's continued acquiescence in that prior abuse with her role in Dillon's ultimate
death. See, e.g., Blocker v. Patch (In re Patch), 356 B.R. 450, 458 (B.A.P. 8th Cir.
2006) ("The next issue as to willfulness is whether the Debtor subjectively knew that
Dillon's injuries were substantially certain to occur from her actions and inactions
. . . . We believe that [the dissenting opinion] too narrowly focuses the inquiry on the
events of the night that Dillon died. We disagree, concluding instead that it is
appropriate to look at the entire series of events surrounding the abuse . . . ."). Thus
clarified, to prove that Patch's debt is "for willful . . . injury" under § 523(a)(6),
Blocker is required to prove by a preponderance of the evidence either that Patch
desired to bring about Dillon's death as a consequence of her conduct in the time
frame just prior to his death or that Patch was substantially certain that Dillon would
die as a consequence of that conduct.

       The BAP concluded that the summary judgment record conclusively establishes
that Patch acted or failed to act with the intention of bringing about Dillon's death.
The BAP based its conclusion on the following undisputed facts: Patch knew that
McBride was abusing Dillon; Patch removed Dillon from daycare and speech therapy
in order to prevent discovery of the abuse; she continued to leave Dillon in McBride's
care and did so on the night Dillon was killed; the autopsy report establishes that prior
to the final assault Dillon suffered severe abuse that resulted in extensive bruising all
over Dillon's body, broken ribs, burn marks on his right hand and arm, and a knocked-
out tooth; and finally, in the night-time hours prior to Dillon's death, Patch observed
that he was having difficulty breathing and talking, but did nothing to obtain medical
care for her son. Insofar as the BAP focused its analysis on any particular action or
omission, as opposed to "the entire series of events surrounding the abuse," id. at 458,
the BAP based its conclusion that Patch's debt is for "willful . . . injury" on Patch's
decision to leave Dillon with McBride the night preceding his death and Patch's
failure to summon medical care early on the morning of his death. Id.



                                          -7-
        As an abstract legal matter, the BAP concluded that the failure to act in the face
of a duty can constitute an intentional tort. But we question whether a debtor's breach
of a legal duty to act can ever constitute a "willful . . . injury," as the Supreme Court
and this circuit have interpreted § 523(a)(6) consistent with the Restatement (Second)
of Torts. The Restatement appears to take the categorical position that the failure to
act in the face of a legal duty can never constitute an intentional tort. "The
Restatement speaks only of an act (not of an omission) in defining intent, in § 8A, and
requires an act, as distinguished from inaction, for battery . . . ." W. Page Keeton et
al., Prosser and Keeton on Torts § 8, at 36 n.6 (5th ed. 1984). Correspondingly, the
Restatement characterizes an actor's deliberate breach of a legal duty to protect as
negligence. Id. On the other hand, while the Supreme Court's decision in Geiger, and
our en banc decision, relied on the Restatement in interpreting the meaning of "willful
. . . injury" under § 523(a)(6), neither decision requires strict adherence to every
particular of the Restatement, and neither decision can be read for the broad rule that
a debtor's breach of a legal duty to act can never be "willful" under § 523(a)(6). The
propriety of any such categorical rule is questionable. See Keeton, supra, § 8, at 36
n.6 ("This curious usage is confounding, since there is as clear a distinction (1)
between purposely failing to act, in order to produce a desired consequence, and
failing to act without adverting to that consequence, as (2) between purposely acting
to produce a desired consequence and acting without adverting to that consequence.").
In any event, we need not conclusively resolve these abstractions here. As we explain
below, it is enough to say that no rational trier of fact could find that Patch's action or
inaction was "willful" based on the summary judgment record and any reasonable
inferences derived from that record.3



      3
        We note the limited development of the summary judgment record, which
primarily consists of: the police report from the morning of Dillon's death; the
nondescript autopsy report; the incomplete transcript of Patch's deposition; and the
Minnesota Court of Appeals's recitation of the facts in its decision affirming Patch's
sentence.

                                           -8-
        In concluding that Blocker was entitled to judgment as a matter of law, the BAP
acknowledged that the record does not indicate that Patch desired to bring about
Dillon's death, in accordance with tort law's more traditional understanding of intent.
Blocker, 356 B.R. at 459 ("Even though [Patch] may not have harbored ill will toward
Dillon or wanted him to die, [Patch's] conduct was inexcusable and resulted in his
inevitable injuries and death."). The summary judgment record affords no basis for
a rational trier of fact to find that Patch left Dillon with McBride on September 17th
because she desired to bring about Dillon's death. The fact that Patch left Dillon with
McBride, who had severely abused Dillon in the past, permits (if not compels) the
inference that she was grossly and recklessly indifferent to the risk that McBride
would abuse her son that night. But without more probative evidence of Patch's
mental state, it is unreasonable to infer that she desired to kill Dillon solely from her
decision to leave him with his abuser. The law of torts permits a fact finder to
conclude that an actor intends the natural consequences of his actions, see Keeton,
supra, § 8, at 36, but based on this record, Dillon's actual death cannot reasonably be
said to be the natural consequence of her decision to leave Dillon with McBride.
Likewise, the summary-judgment record affords no basis for a rational trier of fact to
find that Patch refrained from obtaining medical assistance for Dillon because she
desired to bring about his death. Generally, inferring an actor's intent from that actor's
inaction is rife with speculation; there are any number of reasons for an actor's
inaction, reasons that may have nothing to do with intending the ultimate
consequences of the inaction. On this summary judgment record, the most a rational
trier of fact can infer from Patch's inaction, without engaging in undue speculation,
is that she was grossly and recklessly indifferent to her suffering son. "[R]eckless or
negligent conduct is not sufficient to show willfulness" under § 523(a)(6). Siemer v.
Nangle (In re Nangle), 274 F.3d 481, 483 (8th Cir. 2001).

       We also find no basis in this summary judgment record on which a rational trier
of fact could conclude that Patch was "substantially certain" that her action or inaction
would result in Dillon's death. See Geiger, 113 F.3d at 853. Because Dillon's death

                                           -9-
resulted primarily from McBride's abuse, to show that Patch was substantially certain
that by entrusting Dillon to McBride, Dillon would die as a result, Blocker must point
to facts in the record indicating that Patch knew that McBride intended to either kill
Dillon or so abuse him that he would later die as a result of the abuse. If she did not
know that McBride would abuse Dillon that night, a rational trier of fact could hardly
find that she entrusted Dillon to McBride's care with a substantial certainty in her
mind that Dillon would die as a result. There is nothing in the record from which to
infer such knowledge on the part of Patch. The fact that McBride had abused Dillon
in the past may have made it probable that McBride would abuse Dillon again on this
particular occasion, but a rational fact finder cannot infer that Patch was substantially
certain that Dillon would die based solely on the risk or likelihood that McBride
would abuse him that evening.

       Finally, we find nothing in this record that would support a finding that Patch
was substantially certain that Dillon would die as a result of her failure to summon
medical help on the morning of Dillon's death. Even when construed most favorably
to Blocker, the record only indicates that: Patch knew Dillon had been abused before;
Patch knew that the prior abuse was severe; Patch observed a bruise on Dillon's head;
Patch noticed that Dillon had difficulty breathing and speaking normally; and she
thought that Dillon should see a doctor. These facts have little bearing on Patch's
knowledge of Dillon's actual medical condition on the morning of Dillon's death, and
they are insufficient to support the speculative inference that Patch was substantially
certain that Dillon would die without immediate medical attention. These facts also
do not indicate that Dillon's visible injuries were so objectively life threatening that
anyone, even someone with minimal medical training, would have been substantially
certain that Dillon would die from the observable injuries. Illustratively, the autopsy
report shows that Dillon's death resulted primarily from internal injuries to his head
and abdomen, not wounds that were visible to Patch. We conclude that no rational
trier of fact could find, on the basis of this limited summary judgment record, that



                                          -10-
Patch was substantially certain that Dillon would die as a result of her failure to obtain
medical assistance for the boy.

       Because the record taken as a whole could not lead a rational trier of fact to find
that Patch either desired to bring about Dillon's death as a result of her conduct or was
substantially certain that Dillon's death would result from her conduct, we conclude
as a matter of law that Patch's unliquidated debt in the wrongful-death action is not
"for willful . . . injury." § 523(a)(6). Patch's debt is therefore dischargeable. We
reverse the BAP's judgment and remand to the BAP with instructions to remand to the
bankruptcy court for the entry of summary judgment in favor of Patch.
                          ______________________________




                                          -11-
