Metropolitan Dade County v. Dubon

• Decision Date: 28 March 2001
• Docket Number: No. 3D99-1279.,3D99-1279.
• Citation: 780 So.2d 328
• Parties: METROPOLITAN DADE COUNTY, Appellant, v. Freddy DUBON, Appellee.
• Court: Florida District Court of Appeals

780 So.2d 328

METROPOLITAN DADE COUNTY, Appellant, v. Freddy DUBON, Appellee.

No. 3D99-1279.

District Court of Appeal of Florida, Third District.

March 28, 2001.

Robert A. Ginsburg, County Attorney, and Jason Bloch and Thomas A. Tucker Ronzetti, Assistant County Attorneys, for appellant.

Moscowitz, Starkman & Magolnick and Farah Koran, Miami, for appellee.

Before JORGENSON, GERSTEN, and FLETCHER, JJ.

PER CURIAM.

Miami-Dade County appeals from a final judgment entered on a jury verdict finding the County liable for negligence. For the following reasons, we reverse.

The County operates Beckham Hall, a non-profit, no-fee shelter for homeless men. The shelter offers life skills training, remedial education, and substance abuse recovery programs. Clients are required to obtain employment and save a percentage of their income. Many had psychological or emotional problems; many were drug users or alcoholics who were referred to a mental health facility for evaluation and treatment.

Beckham Hall employed case workers who interacted with the clients and monitors at the facility who handed out meals and assured clients' attendance at Narcotics Anonymous. Although there were rules and regulations to maintain order, Beckham Hall had no security guards, and clients were free to come and go as they pleased.

Beckham Hall prohibited the possession of weapons on the premises; clients were searched for contraband when they initially entered the program. Until the incident involving plaintiff Freddy Dubon, no violent attacks had occurred. Dubon was stabbed in an attack by another client, Luis Garcia. Dubon and Garcia shared a room at Beckham Hall. Garcia, who had been anxious and depressed, verbally threatened Dubon. When Dubon reported the verbal threat to Garcia's case manager, Dubon was told that they "were working on that," as there had been an earlier complaint about Garcia. Garcia stabbed Dubon and then fled. He has not been heard from since. Dubon recovered, and sued the County for negligence.

The jury returned a verdict on liability for Dubon, finding the County 60% at fault for Dubon's injuries, and Dubon 40% at fault.¹ The trial court denied the County's motion for a new trial, and motion for directed verdict. We hold that the County owed no legal duty of care to the plaintiff, and reverse.

Florida courts have refused to find that a party owes a duty to control the conduct of another absent a special relationship. 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.

Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, 683 So.2d 1086, 1088 (Fla. 5th DCA 1996) (citations omitted), review denied, 697 So.2d 510 (Fla.1997). In Lighthouse Mission, the court held that a nonprofit organization that assisted and housed transients and ex-felons was not liable for the criminal attack by one of its residents upon a third party, as it had no control over the assailant.

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."

Lighthouse Mission, 683 So.2d at 1088 (citations omitted).

In Lighthouse Mission, as in this case, the assailant was "not in the custody or control of [defendants]. There were no restraints on his liberty." Id. Because the defendants did not have either the right or the ability to control the assailant, they did not owe a duty to the plaintiff. Id. See also Akinwande v. City of New York, 260 A.D.2d 586, 688 N.Y.S.2d 651 (N.Y.App. Div.1999)

(holding that City owed no special duty to plaintiff for alleged failure to provide adequate security to prevent attacks by third parties at homeless shelter where incident occurred); Abraham v. Wayside Cross Rescue Mission, 289 Ill. App.3d 1048, 225 Ill.Dec. 163, 682 N.E.2d 1240, 1245 (1997) (holding that defendant halfway house did not exert sufficient control over assailant so as to create a common law duty where facility "did not have disciplinary discretion, it did not have armed guards, it could not be locked down, the residents could not be restrained, and the residents could leave the facility at any time.").

Here, both the plaintiff and the defendant were absolutely free to come and go as they chose. Beckham Hall provided valuable services to its homeless residents. It did not have a common law duty to maintain a vigil over those who sought shelter.

Reversed and remanded with directions to grant the County's Motion for Directed Verdict.²

JORGENSON and GERSTEN, JJ., concur.

FLETCHER, Judge (dissenting).

For a variety of reasons Metropolitan Dade County (now Miami-Dade County) seeks reversal of a final order. Unlike the panel majority I would conclude that Dade County did have a duty to Dubon. However I would reverse and remand for a new trial for other reasons.

Since 1987 or so the County has operated Beckham Hall, a shelter for homeless men, seeking permanent solutions to homelessness by leading its "clients" toward self-sufficiency. This non-profit, nofee program included, inter alia, life skills training, value clarification activities, remedial education, and Narcotics Anonymous. It also required its clients to obtain employment and to save a percentage of their income. The laudable nature of these activities cannot be disputed.

Frequently clients had mental or emotional problems, and many were drug users or alcoholics. Often clients were referred to a mental health facility (New Horizons) for evaluation and treatment. Beckham Hall employed case workers who interacted with the clients, and monitors who provided supervision at the facility including handing out meals, and assuring clients' attendance at Narcotics Anonymous meetings. The clients had no restraints on them and were free to leave the facility at any time. The program had no employees identified as security guards, but had rules and regulations to maintain order.

One of Beckham Hall's rules prohibited the possession of weapons on the premises. Clients were searched for contraband upon initial entry into the program. The facility experienced no shootings, stabbings, or violent attacks during numerous years of its operation. That is, until Luis Garcia came to the program in 1994. During his case management process Garcia had an argument with another resident and was referred to New Horizons (the mental health facility). Garcia was depressed, anxious, and believed he was "being picked on" by other clients. Notwithstanding, staff members at Beckham Hall concluded that Garcia was not a problem, and seemed to be doing well.

Freddy Dubon, the plaintiff/appellee, began participating in the Beckham Hall program, when he met Garcia. The two shared a room. According to Dubon's testimony, without provocation Garcia threatened to kill Dubon. When Dubon so reported to Garcia's case manager, he was advised that "they were working on that" because of an earlier complaint about a threat by Garcia. Dubon on several more occasions reiterated to the staff Garcia's threat.

Garcia again threatened Dubon one night, and early the following morning made good on that threat, stabbing Dubon with a knife. Dubon was taken to the hospital for treatment. Garcia fled and was not heard from again. A subsequent review of the Beckham Hall communications log revealed that in order to keep trouble down one client had been moved from his room because of an argument with Garcia. Another client had complained that Garcia was disruptive and had an attitude problem.

Dubon filed suit against the County for failing to prevent the attack, alleging negligence, breach of contract (alleging the rules and regulations constituted a contract whereby the County agreed to provide Dubon with a weapon-free environment), and breach of Garcia's contract of which Dubon was alleged to be a third-party beneficiary. The case went to trial on two of the counts, that of negligence being the concern as the jury returned a verdict finding the County 60% negligent and Dubon 40% negligent.

The County contends that it does not have a duty to secure Beckham Hall clients from third-party attacks as it is a unique governmental venture and so does not create any common-law duty. This, the County contends, is especially true as these persons reclaiming their lives and dignity through this unique program are free to leave and return to their unreclaimed lives and lack of dignity on the streets if they discern any threats.

In Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985) the Florida Supreme discussed a government entity's duty in the four basic areas within which government functions. The first of the functions identified are the legislative, permitting, licensing, and executive officer functions. Trianon at 919. Being inherent in the act of governing, these functions are free from judicial interference unless they violate a constitutional or statutory provision.

The second set of functions identified by the supreme court, includes the enforcement of laws and protection of the public safety. Trianon at 919. The court noted the discretionary power given to judges, prosecutors, arresting officers, other law enforcement officials, and fire protection agencies. The court also listed in this category inspectors of various types, such as building, fire, health, elevator, and environmental inspectors.³

The third category of governmental functions includes capital improvements and property control. Quite succinctly the court excluded discretionary (planning) functions from liability in this category:

"As this Court has made clear in prior cases, there is no liability for the failure of a governmental

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