Gymnastics governance documents cited in her Response Brief.
Based on the undisputed material facts, and under plainly applicable Georgia appellate
court authority, there is no support for Plaintiffs argument that USA Gymnastics voluntarily
assumed any duty to Plaintiff. The grant of summary judgment to USA Gymnastics as set forth
in its original Brief is therefore proper since the Court is authorized to resolve the legal issue
relating to assumption of duty. E.g., Barnes v. St. Stephen's Missionary Baptist Church, 260 Ga.
App. 765, 767, 580 S.E.2d 587, 589 (2003).

C.

USA Gymnastics did not Breach any Duty

Plaintiff asserts in her response brief that USA Gymnastics breached a duty. to her by
failing to report the 1998 letters from Giunipero and Dickey (the "Giunipero and Dickey
Letters") to the authorities, by failing to investigate McCabe, and by failing to suspend or ban
McCabe. The undisputed material facts and relevant Georgia law demonstrate that no breach of
duty occurred.
1.

USA Gymnastics had no Obligation to Report the Giunipero and Dickey
Letters to Law Enforcement

Plaintiff contends that USA Gymnastics breached a duty to Plaintiff when it failed to
report the 1998 allegations made by former Florida gym owners Jan Giunipero and Dan Dickey
to law enforcement, despite the fact neither gym owner ever reported McCabe. Plaintiff also
asserts that mandatory reporting statutes in both Florida and Indiana required USA Gymnastics
to report McCabe to law enforcement. Neither statute required USA Gymnastics in 1998 to
report McCabe.
Florida Statutes Section 39.201, cited by Plaintiff, by its unambiguous terms applies only
to individuals, and not to organizations or even facilities such as hospitals or nursing homes.
F.S.A. § 39.201(1)(a); see, e.g., Smith v. HCA Inc., No. 303CV754J99TEM, 2005 WL 1866395,

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 at *8 (M.D. Fla. July 26, 2005) affd, 183 F. App'x 854 (11th Cir. 2006). This was also the case
under the statutory version effective at the time USA Gymnastics received the Giunipero and
Dickey Letters in late October 1998. Then-Section 39.201(1)(a)-(±). [The 1998 Florida Statutes
§ 39.201 ("F.S.A. § 39.201") attached as Ex. "A"]. The Indiana statute, Section 31-33-5-1,
likewise imposes reporting requirements only upon "an individual." LC.A. § 31-33-5-1.
Moreover, the 1998 version of Section 39.201 provided, in relevant part, that "[a]ny
person, including, but not limited to" various enumerated categories of professionals, "who
knows, or has reasonable cause to suspect, that a child is an abused, abandoned, or neglected
child shall report such knowledge or suspicion .... " [See F.S.A. § 39.201]. Giunipero's October
20, 1998 letter referenced a restraining order entered against McCabe by an 18-year-old Florida
State University cheerleader.

[Facsimile from Jan Giunipero to Loree Galimore, USA

Gymnastics, October 20, 1998 (attached as Ex. "K" to USAG Material Facts).] No child was
involved, and there is no evidence that the cheerleader was a USA Gymnastics member. Nor did
the letter reference abuse, abandonment, or neglect. [Id.] The letter referenced possible alleged
misconduct by McCabe at other gyms, but provided no first-hand facts relating to child abuse.

[Id.]

If such facts existed then Giunipero and/or Dickey should have reported McCabe to

authorities with power to investigate and actually stop abuse. USA Gymnastics never had such
power.

Significantly, even revoking USA Gymnastics membership does not prevent a

gymnastics coach from coaching or stop a predator from abusive behaviors. No children are
named in the Giunipero and Dickey Letters. [Id.] A second undated letter referenced alleged
hearsay sexual harassment, but again without any details sufficient to create a duty obligating
USA Gymnastics to launch an investigation.

[Undated Letter from Jan Giunipero to Kathy

Kelly, USA Gymnastics (attached as Ex. "L" to USAG Material Facts).] Dickey's letter stated

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 that he fired McCabe after he heard from an unnamed individual that McCabe had bragged to yet
another person that he "had one of the 15 year old cheerleaders in her underwear" and that he
expected to have sex with her. [Undated Corr. From Dan Dickey, Gymnastic World, to Kathy
Kelly, USA Gymnastics, (attached as Ex. "M" to USAG Material Facts).] Nothing in this thirdhand hearsay letter created any duty to investigate as a matter of law, nor did it trigger mandatory
reporting under the 1998 statute. Again, no child was specifically identified, and there is no
evidence that this unnamed cheerleader was a USAG member. USA Gymnastics' 1999 reply
letter seeking more information was ignored by the former gym owners. [Id.]
Indiana law similarly provides that "an individual who has reason to believe that a child
is a victim of child abuse or neglect shall make a report as required by this article." I.C.A. § 3133-5-1. "'Reason to believe,' for the purpose of the reporting statutes, 'means evidence that, if
presented to individuals of similar background and training, would cause the individuals to
believe that a child was abused or neglected."' Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct.
App. 2015) (quoting Ind. Code§ 31-9-2-101). For the reasons set forth above, however, USA
Gymnastics had no reason to believe actual abuse had occurred. Deplorable comments by a
coach in his young 20s in the mid to late 1990s that is forwarded by two or three others is not the
quality of information USA Gymnastics investigated at that time. Each of the letters referenced
unspecified individuals or an adult woman, or referred to a hearsay statement about a desire to
engage in inappropriate sexual relations with a minor cheerleader whose status vis-a-vis USA
Gymnastics was not known. No part of the letters stated that child abuse had in fact occurred,
even generally. Therefore, USA Gymnastics had no duty to investigate McCabe, and it did not
breach any duty to Plaintiff.

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