Garrison Retirement Home Corp. v. Hancock
| Decision Date | 02 October 1985 |
| Docket Number | Nos. 84-1969,84-1991,s. 84-1969 |
| Citation | 10 Fla. L. Weekly 2300,484 So.2d 1257 |
| Parties | 10 Fla. L. Weekly 2300 GARRISON RETIREMENT HOME CORP., etc., d/b/a Palm Crescent Seniors Home, Appellant, v. Kenneth Dal HANCOCK and Jeanne Hancock, his spouse, Appellees. GARRISON RETIREMENT HOME CORP., d/b/a Palm Crescent Services, Inc., Petitioner, v. Kenneth Dal HANCOCK and Jeanne Hancock, his spouse, Respondents. |
| Court | Florida District Court of Appeals |
John P. Kelly of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant/petitioner.
Brumer, Cohen, Logan & Kandell and Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, for appellees/respondents.
Kenneth Dal Hancock and Jeanne Hancock (Hancock) sued Garrison Retirement Home Corporation (Garrison) for damages incurred in an automobile accident with a resident of the Garrison Retirement Home. From an order granting Hancock's motion for summary judgment on the issue of liability, Garrison has filed a non-final appeal. From an order denying Garrison's motion for summary judgment, Garrison has filed a petition for writ of certiorari. The two cases have been consolidated for appellate purposes.
In an abundance of caution so as not to create a precedent for reviewing orders denying motions for summary judgment by certiorari, we pause to explain the exercise of this court's discretion to entertain the petition for certiorari. Ordinarily certiorari would not be granted because review by plenary appeal would be adequate and for other reasons mentioned in Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); and Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). However, the two orders being reviewed were entered on cross motions for summary judgment and in the interest of economy of judicial labor it is more expedient and practical to review both orders at once. Furthermore, the main issue in both the nonfinal appeal and the petition for certiorari is whether Garrison owed a duty to Hancock.
Petitioner/appellant, Garrison, is a licensed facility under the Adult Congregate Living Facilities Act, section 400.401 et seq, Florida Statutes (1981). It is a non-skilled facility and is operated solely as a retirement home, as opposed to a nursing home. No one is confined to his room; however, it is a "locked gate" facility and neither visitors nor patients can just walk in or out of the facility without having someone open the gate. The purpose of the locked gates is for the protection of those residents who are not able to take care of themselves if they got outside.
In August, 1981, Tom Egan, age 85, voluntarily came to live at the retirement home. He had his car towed to the retirement home and the car was parked on the premises. Jane Rush, the administrator of the retirement home, became concerned about Tom Egan's potential use of the automobile. Both the car's license tag and Tom's driver's license had expired. Consequently, Jane Rush inquired of her licensing authority, the Department of Health and Rehabilitative Services (DHRS), regarding rules or regulations prohibiting Tom's use or ownership of his automobile while he resided at the retirement home. She was informed by Betty Gunter, DHRS administrator, that under DHRS rules and regulations, she had no right to prevent Tom's use of his car, or prevent him from leaving the facility. The police were then notified at Betty Gunter's suggestion; however, the police told Jane Rush that they only had jurisdiction if, in fact, Tom operated his vehicle in violation of the law.
Nevertheless, the retirement home personnel attempted to immobilize the car by letting air out of the tires, removing the battery cable, barricading it with Jane Rush's car and confiscating Tom's keys. However, Tom obtained a second set of keys and always managed to get the car back into operational condition.
The majority of the residents at the retirement home were senile. Dr. Gerald Stopczynski testified by deposition that he first examined Tom on June 13, 1982, and he diagnosed organic brain syndrome, as well as dementia (commonly referred to as senility) at that time. However, he did not have an opinion on Tom's condition in late 1981 when the accident in question occurred.
On October 13, 1981, Tom was permitted to go out to his car in order to recharge his battery. He started it up and backed into Mrs. Rush's car. Mrs. Rush took Tom inside and then moved her car away from Tom's. While she was moving her car, Tom had one of the retirement home employees open the gate so he could go back out to the car. He then drove off in the car even though he assured the retirement home personnel otherwise. Upon discovery of the situation, the retirement home notified the police, who issued an all-points bulletin for Tom.
While he was returning to the retirement home, Tom's vehicle struck Hancock, who was standing with one foot on the rear bumper of his truck in a swale area on the premises of the retirement home. Hancock, an employee of Latite Roofing Co., had been visiting the retirement home to inspect a roof waterproofing job.
Hancock sued Garrison, alleging that Thomas F. Egan "was a patient and/or enrollee at Garrison's Home and under its care and supervision by virtue of physical and mental infirmities arising from old age and/or sickness; that having undertaken the care and supervision of Egan, Garrison specifically undertook and had the duty to control his actions so as to prevent harm to himself or to third parties." In the alternative, Hancock alleged that Garrison had the authority, right and power to control Egan's activities, having assumed the duty of his care, control, custody and supervision. Having assumed that care and supervision, Garrison owed a duty to third persons to act reasonably in caring for Egan where it knew of Egan's dangerous propensities or penchant for operating a motor vehicle on Garrison's premises under circumstances that constituted a dangerous condition. It is alleged that Garrison knew Egan was a danger to himself and others on the premises and elsewhere when operating his car to which he was allowed access. Therefore, Hancock alleges that Garrison breached its duty to him when on October 13, 1981, Egan ran his car into Hancock, who was a pedestrian working on Garrison's premises, and severely injured him.
The Florida Adult Congregate Living Facilities Act's stated purpose is:
to provide for the health, safety and welfare of residents of adult congregate living facilities in the state, to promote the growth and continued improvement of such facilities ..., and to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Department of Health and Rehabilitative Services, adult congregate living facilities, and other community agencies.
§ 400.401(2), Fla.Stat. (1981).
In addition to this broad enabling clause, the legislature also included in the Act a "resident bill of rights." § 400.428, Fla.Stat. (1981). Among other things, that statute states:
No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States solely by reason of status as a resident of a facility. Every resident of a facility shall have the right to:
(b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
* * *
* * *
(d) Unrestricted private communication, including ... visiting with any person of his choice, at any time between the hours of 9:00 a.m. and 8:00 p.m.
(e) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community.
* * *
* * *
(1) Exercise civil and religious liberties, including the right to independent personal decisions.
With respect to these guaranteed rights, the Act provides "The facility shall not hamper or prevent residents from exercising their rights as specified in this section." § 400.428(1)(k)(4), Fla.Stat. (1981). Likewise, section 400.428(5), Florida Statutes (1981), prohibits eviction of or retaliation against a resident on the basis of a resident's exercise of his rights.
In addition to the foregoing statutes, the Department of Health and Rehabilitative Services, Aging and Adult Services, has promulgated rules pertaining to the operation of these licensed facilities. For example, Rule 10A-5.18(g), Florida Administrative Code, entitled "Resident Care Standards" provides:
A resident who manifests such behavior as to be destructive to property, himself or others, and/or is chronically disruptive to other residents of the facility shall not be admitted or allowed to remain in a facility.
Chapter 10A-5, Adult Congregate Living Facilities, Fla.Admin.Code (1981). Rule 10A-5.22(1)(i), Florida Administrative Code, entitled "Facility Maintenance/Housekeeping Standards," further provides:
The facility shall keep the facility free of unsafe accumulations of possessions, including equipment and supplies of the residents, staff or owner.
Chapter 10A-5, Adult Congregate Living Facilities, Fla.A...
To continue reading
Request your trial
-
Wallace v. Dean
...owed duty of reasonable care to bicyclist who was struck by timbers protruding from vehicle window); Garrison Retirement Home v. Hancock, 484 So.2d 1257, 1262 (Fla. 4th DCA 1985) (holding that retirement home that assumed and undertook care and supervision of retirement home resident owed d......
-
Schwab v. United States
...care and supervision of a child, and when a bus lines operates a tour as well as provides transportation. Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla. 4th DCA 1985); Barfield v. Langley, 432 So.2d 748 (Fla. 2d DCA 1983); Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla.......
-
Boynton v. Burglass
...1 (Fla. 3d DCA 1989); Department of Health & Rehab. Servs. v. Whaley, 531 So.2d 723 (Fla. 4th DCA 1988); Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257 (Fla. 4th DCA 1985); see also Rest.2d Torts Secs. 314-320. Implicit in the creation of that exception, however, is the recogniti......
-
Daniels v. Carpenter
...supra, § 324A where parent had prior knowledge of son's propensity to sexually abuse other children) and Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257, 1262 (Fla.App.1985) (defendant, who had knowledge of resident's poor driving capabilities, had duty to protect [¶ 18] In Austin......
-
Halfway houses and mental health treatment facilities - establishing duty in tort.
...upon it the duty to exercise reasonable care in carrying out its efforts." (11) Similarly, in Garrison Retirement Home Corp. v. Hancock, 484 So. 2d 1257 (Fla. 4th DCA 1985), the plaintiffs sued a retirement home for injuries suffered when a resident of the retirement home struck one of the ......