Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, 95-3144

• Decision Date: 15 November 1996
• Docket Number: No. 95-3144,95-3144
• Citation: 683 So.2d 1086
• Parties: 21 Fla. L. Weekly D2456 The LIGHTHOUSE MISSION OF ORLANDO, INC., et al. Appellants, v. ESTATE OF Christine McGOWEN, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1086

683 So.2d 1086

21 Fla. L. Weekly D2456

The LIGHTHOUSE MISSION OF ORLANDO, INC., et al. Appellants, v. ESTATE OF Christine McGOWEN, etc., et al., Appellees.

No. 95-3144.

District Court of Appeal of Florida,

Fifth District.

Nov. 15, 1996.

Rehearing Denied Dec. 13, 1996.

Robert E. Bonner of Eubanks, Hilyard, Rumbley, Meier & Lengauer, P.A., Orlando, for Appellants.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando, for Amicus Curiae Florida Defense Lawyers Association.

James R. Lavigne of Lavigne & Lane, P.A., Orlando, for Appellees.

PER CURIAM.

The Lighthouse Mission of Orlando, Inc. ("the Mission") and Margaret Powell, its founder and executive director, timely appeal the final judgment and order denying their motion for judgment notwithstanding the verdict and new trial in favor of the Estate of Christine McGowen ("the Estate"). The judgment awarded the Estate $1.5 million following a trial in which the jury found the Mission and Powell negligent after one of the Mission's residents, an ex-convict with a history of sexual crimes, raped and murdered 11 year old McGowen, who lived next door to the Mission. While the Mission and Powell make eight arguments on appeal, only one merits discussion. They contend that the Estate failed to establish that the Mission and Powell owed a legal duty to the plaintiff, and thus, the trial court erred in failing to direct a verdict in their favor. We agree and reverse.

THE FACTS

In 1983, Elmer Leon Carroll was convicted of sexual assault upon a girl under the age of 14 and sentenced to 15 years in prison. Carroll was released from the Department of Corrections' custody after serving 7 years, having fully satisfied the term of his sentence. Carroll's release was not conditional and there were no restrictions placed on his liberty; he was a free man.

Following Carroll's release, Teleois Ministries referred him to the Mission, a nonprofit organization formed to assist transients and/or ex-convicts in functioning as contributing members of society and to prepare those individuals spiritually, physically, and psychologically for productive reintegration. Carroll was a voluntary tenant and could leave at will. He paid rent in exchange for his room and board.

Carroll resided at the Mission for several months and then left to move in with his girlfriend. He returned a short time later and lived there until his arrest for McGowen's rape and murder.

Carroll was convicted of first degree murder and sexual battery on a child under the age of 12 and was sentenced to death. The Florida Supreme Court has upheld his conviction and sentence. See Carroll v. State, 636 So.2d 1316 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 447, 130 L.Ed.2d 357 (1994).

Julie Rank, McGowen's mother and personal representative of her estate, filed a civil action for wrongful death against the Mission and Powell alleging that their negligence caused McGowen's death. The Estate alleged that because the Mission and Powell knew or should have known of Carroll's violent tendencies, they breached their duty of care to McGowen, or alternatively, they breached their duty to control Carroll's conduct.

The case was tried by jury. At the close of the Estate's case, the Mission and Powell moved for a directed verdict, arguing that the Estate had failed to establish a legal duty or right to control Carroll's behavior. The trial court denied their motion and the jury returned a verdict in favor of the Estate for $1.5 million. Following the trial, the Mission and Powell filed a motion for judgment in accordance with the directed verdict or new trial, which was denied.

THE LAW

Florida courts have refused to find that a party owes a duty to control the conduct of another absent a special relationship. See Garrison Retirement Home Corp. v. Hancock, 484 So.2d 1257, 1261 (Fla. 4th DCA 1985). Implicit in the "special relationship" exception to the general rule that no duty is owed is the proposition that the party must have the right or ability to control the third party's behavior. See Palmer v. Shearson Lehman Hutton, Inc., 622 So.2d 1085, 1089 (Fla. 1st DCA 1993); Garrison, 484 So.2d at 1261. Florida courts have adopted section 319 of the Restatement (Second) of Torts (1964) which states:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Garrison, 484 So.2d at 1261 (emphasis added).

To support its argument that the trial court was correct in finding a duty, the Estate primarily relies on Nova University, Inc. v. Wagner, 491 So.2d 1116 (Fla.1986), wherein the Florida Supreme Court held that a university, operating a residential rehabilitation program which accepted delinquent, emotionally disturbed and/or ungovernable children as residents, had a duty to exercise reasonable care in its operation to avoid harm to the general public. In ...