Gross v. Family Services Agency, Inc.

• Decision Date: 26 August 1998
• Docket Number: No. 97-1335,97-1335
• Citation: 716 So.2d 337
• Parties: 128 Ed. Law Rep. 1346, 23 Fla. L. Weekly D1984 Bethany Jill GROSS, Appellant, v. FAMILY SERVICES AGENCY, INC., a Florida corporation, and Nova Southeastern University, Inc., a Florida corporation, Not-for-Profit, Appellees.
• Court: Florida District Court of Appeals

Page 337

716 So.2d 337

128 Ed. Law Rep. 1346, 23 Fla. L. Weekly D1984

Bethany Jill GROSS, Appellant, v. FAMILY SERVICES AGENCY, INC., a Florida corporation, and Nova Southeastern University, Inc., a Florida corporation, Not-for-Profit, Appellees.

No. 97-1335.

District Court of Appeal of Florida Fourth District.

Aug. 26, 1998.

Rehearing Denied Nov. 9, 1998.

Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, and Tod Aronovitz of Aronovitz & Associates, Miami, for appellant.

Justin M. Senior and Bartley C. Miller of Panza, Maurer, Maynard & Neel, P.A., Fort Lauderdale, and John Beranek of Ausley & McMullen, Tallahassee, for Appellee-Nova Southeastern University, Inc.

ON MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC AND MOTION FOR CERTIFICATION

STEVENSON, Judge.

We grant the motions for rehearing and certification, but deny the motion for rehearing en banc. The original opinion filed on May 20, 1998, is withdrawn and the following substituted in its place.

Appellant, Bethany Jill Gross, a twenty-three year old graduate student attending Nova Southeastern University, was criminally assaulted while leaving an off-campus internship site. Gross filed a negligence action against Nova based on Nova's alleged negligence in assigning her to perform an internship at a facility which Nova knew was unreasonably dangerous and presented an unreasonable risk of harm. The trial court granted summary judgment for Nova, finding that there was no duty. We reverse.

Factual allegations

The facts, as alleged in the sworn affidavits and other record evidence, and presented in the light most favorable to appellant, the non-moving party, are briefly summarized as follows. Appellant moved to Fort Lauderdale from North Carolina to study at Nova Southeastern University in the doctorate psychology program. As part of the curriculum, she was required to complete an eleven-month internship, called a "practicum." Nova provides each student with a listing of the approved practicum sites, complete with a description of the type of experience offered at each site. Each student selects six internships from the list and is placed, by Nova, at one of the selected sites. Appellant submitted her six selections and was assigned, by Nova, to Family Services Agency, Inc. ("FSA").

FSA is located about fifteen minutes away from Nova. One evening, when leaving FSA, appellant was accosted by a man in the parking lot. She had just started her car when he tapped on her window with a gun. Pointing the weapon at her head, the assailant had appellant roll down the window. Appellant was subsequently abducted from the parking lot, robbed and sexually assaulted. There was evidence that prior to appellant's attack, Nova had been made aware of a number of other criminal incidents which had occurred at or near the FSA parking lot.

Procedural background

Appellant subsequently filed this action against both FSA and Nova. Appellant eventually settled with FSA. The complaint alleges that Nova breached its duty to exercise reasonable care by assigning appellant, without adequate warning, to an internship site which it knew to be unreasonably dangerous. Nova later moved for summary judgment, arguing that no duty on the part of the university could arise predicated on appellant's claim that she was criminally attacked in FSA's parking lot. The trial court granted Nova's motion, finding no duty on Nova's behalf, stating that Nova "did not own, operate, or control the premises where plaintiff was abducted and later assaulted." Because the motion for summary judgment, and the order thereon, were based exclusively on the legal issue of duty, we address the final judgment on appeal from that limited perspective only.

Appellant's tort action against Nova faces two immediate obstacles: (1) the injury did not occur on premises owned or controlled by Nova, and (2) the injury was actually inflicted by the criminal acts of a third party. Appellant argues that neither obstacle is fatal to her cause of action against Nova, first, because this is not a premises liability lawsuit and, second, because the relationship between Nova and herself was such that Nova had a duty to exercise reasonable care in assigning her to an internship site, including the duty to warn her of foreseeable and unreasonable risks of injury. We agree with appellant.

Whether a duty arises in any particular context is resolved as a matter of law after weighing "the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." See Rupp v. Bryant, 417 So.2d 658, 667 (Fla.1982)(quoting W. Prosser, The Law of Torts § 53, at 325-26 (4th ed.1971)); RESTATEMENT (SECOND) OF TORTS §§ 314, 315 (1965). While a person or other entity generally has no duty to take precautions to protect another against criminal acts of third parties, see Boynton v. Burglass, 590 So.2d 446 (Fla. 3d DCA 1991), exceptions to this general rule have emerged, including the "special relationships" exception. See RESTATEMENT (SECOND) OF TORTS § 315 (1965). Among the recognized "special relationships" where defendants have been held liable for failure to exercise reasonable care when injuries have actually been inflicted by third parties are employer-employee; ¹ landlord tenant; ² landowner-invitee; ³ and school-minor student. ⁴

We begin by recognizing that, here, we are not dealing with the relationship between a minor student and a school. In those cases, "at least through the high school level," a school "undoubtedly owes a general duty of supervision to the students placed within its care." See Rupp, 417 So.2d at 666. With this "general" duty in mind, Rupp held that a high school could be found negligent for failing to adequately supervise a school-sanctioned student group during an extra-curricular, off-premises hazing ceremony which left a student permanently paralyzed. See id. Schools have generally not, however, been held to have a duty of supervision when the injuries have occurred off-campus while students have been involved in non-school related activities. See Concepcion v. Archdiocese of Miami, 693 So.2d 1103 (Fla. 3d DCA 1997)(holding that a school has no duty to supervise off-campus, non-school related activities during non-school hours); Oglesby v. Seminole County Bd. of Pub. Instruction, 328 So.2d 515 (Fla. 4th DCA 1976)(same).

This case involves an adult student injured during an off-campus, but school related activity, i.e., a university-mandated internship program at a site specifically approved and suggested by the university. The relationship between Nova and Gross can be characterized in various ways, but it is essentially the relationship between an...