Hargrove v. Tree of Life Christian Day Care Center

• Decision Date: 23 May 1997
• Citation: 699 So.2d 1242
• Parties: Timothy HARGROVE, et al. v. TREE OF LIFE CHRISTIAN DAY CARE CENTER. 1960045.
• Court: Alabama Supreme Court

Page 1242

699 So.2d 1242

Timothy HARGROVE, et al. v. TREE OF LIFE CHRISTIAN DAY CARE CENTER.

1960045.

Supreme Court of Alabama.

May 23, 1997.

Rehearing Denied July 18, 1997.

James M. Patton of Patton & Veigas, P.C., Birmingham, for appellants.

W. J. McDaniel and Christy Osborne of McDaniel, Hall & Conerly, P.C., Birmingham, for appellee.

HOUSTON, Justice.

The plaintiffs, Timothy and Carolyn Hargrove, individually and in their representative capacities as the parents and next friends of their daughter, Sharda Lee Hargrove, appeal from a summary judgment for the defendant, Tree of Life Christian Day Care Center ("the Center"), ¹ in this action seeking damages for breach of contract and under various tort theories. We affirm in part, reverse in part, and remand.

The evidence, viewed most favorably toward the Hargroves, as it must be under our standard for reviewing summary judgments, Woodruff v. Leighton Avenue Office Plaza, Ltd., 622 So.2d 304 (Ala.1993), indicates the following: The Hargroves contracted with the Center for the daily care and supervision of their one-month-old daughter, Sharda. The Center, a church-affiliated child care provider, was licensed at that time by the Alabama Department of Human Resources ("DHR") to care for children 18 months old and older. (The Center's license has since been revoked.) ² The Center's administrator, Bernice Mahan, provided the Hargroves with a rather lengthy document entitled "Operating Policies." That document, which stated that parents and guardians were expected "to read and follow the operating procedures," set out specific rules and procedures to be followed by the Center and the parents or guardians of the children. It provided, among other things, as follows:

"The [Center] provides a healthy, safe, and Christian environment that promotes the physical, social, emotional, cognitive and spiritual development of young children, and seeks to respond to the needs of families.

"All staff members are selected on the basis of experience in working with young children, educational background, emotional stability, as well as care and concern for the well-being of the child. All participate in a continuous program of in-service education and studies for professional advancement in order to remain alert to the ever-changing needs of today's children and families, and to the findings of current research.

"....

"Children will be released only to properly identified persons who have been listed in the 'child release' section of the Parent-Agreement Form. We must have written authorization for changes in this respect. In unusual circumstances, we will accept verbal (phone) authorization to release a child to an individual not listed in writing. It must be followed up in writing if the child is to be released to that person on an ongoing basis. We will ask for identification of individuals we do not know. It would be helpful if you would arrange for the persons to pick up your child to visit the school with you so that the staff may become acquainted with them. We will not release a child in the care of anyone under the age of 14 years."

(Emphasis in original.)

In addition to a number of adults, the Center also employed 14-year-old J.B. and her sister, 17-year-old A. B., to assist in the care of the children. ³ J.B. and A.B. were two of five foster children in Mahan's custody. Mahan had become the girls' foster mother only a few months before the incident made the basis of this action. The Center also allowed another sister, 12-year-old V. B., to assist with the children from time to time, although she was apparently not paid. V.B. was not one of Mahan's foster children. On April 25, 1995, when the Hargroves' daughter was approximately three months old and while she was under the Center's care and supervision, the three sisters kidnapped her.

At the time of the kidnapping, there was no qualified adult teacher, other than perhaps Mahan, directly supervising the sisters. Mahan testified in her deposition that the other teacher or teachers had gone for the day and that she thought A.B. had intentionally distracted her while J.B. and V.B. slipped the Hargroves' daughter out the front door undetected. There was evidence suggesting that J.B. and A.B. had been physically abused (perhaps sexually) by certain members of their family and that A.B. had deceived DHR and Mahan into believing that she was pregnant; however, there was no evidence that could have placed Mahan or the Center on notice that the two girls had criminal propensities.

The local police and the Federal Bureau of Investigation investigated the incident and, based at least in part on false information provided by J. B., focused part of their investigation on the Hargroves. After approximately six days, Sharda Lee Hargrove was found and was reunited with her parents. The evidence suggests that the sisters had called the baby girl Jasmine instead of Sharda and that, other than indications of withdrawal and confusion, she suffered only from rashes in her mouth and on her bottom. The evidence also indicated, as one would expect, that this incident was a traumatic one and that it was very stressful on the Hargroves.

The Hargroves filed an eight-count complaint against the Center. Count one, filed in the Hargroves' individual and representative capacities, sought damages based on allegations that the Center, "through ... negligent hiring and supervisory policies, practices, and/or procedures, proximately caused or allowed plaintiffs' minor child to be kidnapped while she was in the care and custody of the [Center]"; count two, filed in the Hargroves' individual and representative capacities, sought damages based on allegations that the Center, "through ... wanton hiring and supervisory policies, practices or procedures ... proximately caused or allowed the plaintiffs' minor child to be kidnapped while she was in the care and custody of the [Center]"; count three, filed by the Hargroves individually, sought damages based on allegations of breach of contract; count four, filed in the Hargroves' representative capacities, sought damages based on allegations that "due to the special relationships and other special circumstances involved herein, that is, the foster parent-child relationship between [Mahan] and J. B., and the relationship of Sharda, an innocent child in the [Center's] charge, the [Center] had a duty to protect Sharda from the criminal acts of J.B. and third parties, which such acts include but are not necessarily limited to kidnapping, offensive trespass to the person, and theft of personal property"; count five, filed by the Hargroves individually, sought damages based on allegations that the Center's "negligent and/or wanton breach of its duty to protect Sharda from the criminal acts of J.B. and third parties as averred in [count four] amounted to an intentional infliction of emotional distress and outrageous conduct [the tort of outrage], and that the [Center] is liable to the plaintiffs for their injuries and damages as a proximate result thereof due to the special relationships involved as set out in [count four]"; count six, filed in the Hargroves' representative capacities, sought damages based on allegations that the Center had negligently or wantonly invaded their daughter's privacy; count seven, filed by the Hargroves individually, sought damages based on allegations that the Center had negligently or wantonly invaded their privacy; and count eight, filed by the Hargroves in both their representative and individual capacities, sought damages under the doctrine of respondeat superior, based on allegations that J.B. had acted within the line and scope of her duties at the Center when she participated in the kidnapping. Count eight stated, in part, as follows:

"The plaintiffs aver that the [Center] is liable to the plaintiffs for the intentional criminal acts done by its employee and/or agent, [J. B.], due to the special relationships involved herein as averred in [count four]. Such liability inures both from the theory of respondeat superior in that [J.B.] was an agent committing such intentional criminal acts and from the theory of common law premises liability even if such agency did not exist."

The trial court entered a summary judgment for the Center on all claims. The Hargroves appealed.

After carefully reviewing the record and the briefs, we conclude that, with the exception of count three (breach of contract) the summary judgment was proper with respect to each of the counts contained in the Hargroves' complaint. It is well settled that, absent special relationships or circumstances, no person or entity has a duty to protect another from the criminal act of a third person. A defendant cannot be held liable for the criminal act of a third party unless the defendant knew or had reason to know that the criminal act was about to occur on the defendant's premises. Young v. Huntsville Hospital, 595 So.2d 1386 (Ala.1992); Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984). This rule was applied in the day care context in N.J. v. Greater Emanuel Temple Holiness Church, 611 So.2d 1036 (Ala.1992). In that case, N. J., a minor child acting through her mother, as next friend, sued the church, alleging that the church had failed to use due care in watching and supervising N.J. in its day care program, and that it had thereby allowed N.J. to be raped on the church's premises by a second cousin of N.J. The cousin, J. R., lived with his family on the third floor of the church building and was a frequent visitor at N. J.'s house. The trial court entered a summary judgment for the church. This Court affirmed, holding that there was insufficient evidence of negligent supervision on the church's part. This Court, reiterating its reluctance to impose liability on one person or entity for the criminal act of another, specifically rejected the plaintiff's attempt to hold the church liable under...