Boys & Girls Clubs of Marion County v. J.A., 5D09-1373.

• Decision Date: 04 December 2009
• Docket Number: No. 5D09-1373.,5D09-1373.
• Parties: BOYS & GIRLS CLUBS OF MARION COUNTY, INC., Petitioner, v. J.A., as Natural Parent and Guardian, etc., Respondent.
• Court: Florida District Court of Appeals

22 So.3d 855

BOYS & GIRLS CLUBS OF MARION COUNTY, INC., Petitioner, v. J.A., as Natural Parent and Guardian, etc., Respondent.

No. 5D09-1373.

District Court of Appeal of Florida, Fifth District.

December 4, 2009.

Petition for Certiorari Review of Order from the Circuit Court for Marion County, Sandra Edwards-Stephens, Judge.

Betty D. Marion and Kenneth A. Glaspey of The Marion Law Firm, LLC, Ocala, for Petitioner.

Roy D. Wasson of Wasson & Associates, Chartered, Miami, Marianne R. Howanitz of Daniel L. Hightower, P.A., Ocala, for Respondent.

PER CURIAM.

DENIED.

TORPY, J., concurs.

GRIFFIN and ORFINGER, JJ., concur and concur specially with opinions.

GRIFFIN, J., concurring specially.

This petition for a writ of certiorari arises out of a civil suit filed by the mother of an eight-year-old child who she claims was sexually assaulted in 2005 on Petitioner's premises by an older boy. The theory of liability appears to be that Petitioner was negligent in its supervision, although of what or whom is unclear because we do not have the complaint.

Petitioner sought to take the deposition of the child and Respondent moved for a protective order, asserting that testifying would be emotionally harmful to the child. The order under review grants the motion, in toto, at least temporarily. The order declares that the child may not ever be questioned about the assault at all and requires defense counsel to submit his proposed discovery on any other aspect of the case for prior evaluation and opinion by the child's psychologist to determine whether it would adversely affect the child to be asked or to answer the questions. According to the order, the court will then decide whether any deposition may be had and, if so, what questions may be asked.¹ I agree that this order is not appropriate for certiorari review at this time. While Petitioner may be unhappy with the procedure the trial court has chosen to follow, the real issue is what discovery Petitioner ultimately will receive and when. Like most other orders denying discovery, this will almost certainly have to await the trial of the case. And it is not yet even clear that the court will not eventually allow the discovery to which Petitioner is entitled.

I write in this case, as I have in others, only because I have my eye on the ultimate appeal in this case and because it has been my experience that whoever is on the losing side of an order disallowing discovery has a difficult time tying the lack of discovery to the unfavorable outcome. This is so because they cannot usually show the appellate court what they did not find out. They can only establish that there was a category of information they were not allowed to seek out. Appellate courts are reluctant to reverse a jury verdict and send a case back for what might amount to nothing. We do and we will, if necessary, but a more fair outcome is reached if this is correctly resolved at the trial level.

Here Petitioner has offered not to inquire about the assault itself — at least for now — but wants to find out from the child where he was, who he was with and what he was doing beforehand and other matters relating to the negligent supervision theory. Petitioner also wants to inquire about damages. Respondent seeks to shield the child, who is now twelve years old, from all discovery, relying on Florida Rule of Civil Procedure 1.280(b)(1), claiming it would embarrass, or oppress the child to testify because of the nature of the underlying events. But the rule does not...