Faul v. Pearlman


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Docket Number: 2010-CA-01829-COA
Linked Case(s): 2010-CA-01829-COA

Court of Appeals: Opinion Link
Opinion Date: 05-22-2012
Opinion Author: Judge Maxwell
Holding: Affirmed

Additional Case Information: Topic: Negligent supervision - Duty of reasonable care - Causation - Duty to protect child - Foreseeability - Negligence per se - Summary judgment hearing - URCCC 4.03(5) - M.R.C.P. 56 - URCCC 2.04
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts, Carlton, Russell and Fair, JJ.
Concur in Part, Concur in Result 1: Barnes, J., Concurs in Part and in the Result Without Separate Written Opinion
Procedural History: Summary Judgment
Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE

Trial Court: Date of Trial Judgment: 09-24-2010
Appealed from: Harrison County Circuit Court
Judge: Roger T. Clark
Disposition: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE
Case Number: A2401-07-263

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Zenobia Faul, as Guardian and Next Friend of the Minor Child A.F.




RUSSELL S. GILL



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: Esther Pearlman (formerly Esther Adkins) BRETT K. WILLIAMS KEVIN M. MELCHI  

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    Topic: Negligent supervision - Duty of reasonable care - Causation - Duty to protect child - Foreseeability - Negligence per se - Summary judgment hearing - URCCC 4.03(5) - M.R.C.P. 56 - URCCC 2.04

    Summary of the Facts: Esther Perlman’s then-husband, Johnny Lee Adkins, sexually assaulted Zenobia Faul’s ten-year-old granddaughter while the granddaughter was staying in Perlman’s home. Adkins pled guilty to fondling the child and was sentenced to prison. Faul, as her granddaughter’s representative, sued Perlman, alleging Perlman was liable to her granddaughter for negligent supervision and negligence per se. The circuit court granted summary judgment in Perlman’s favor. Faul appeals.

    Summary of Opinion Analysis: Issue 1: Negligent supervision Faul argues the grant of summary judgment based on lack of evidence of causation was improper. For Faul to recover for negligent supervision, she bears the burden of producing evidence sufficient to establish the existence of a duty, breach, proximate causation, and damages. Mississippi has not addressed the specific circumstances of this case—a wife’s duty to protect against and/or warn about her husband’s criminal conduct toward a minor under her care in her home. But in Chaney v. Superior Court, 46 Cal. Rptr. 2d 73, 75 (Cal. Ct. App. 1995), the California Court of Appeals found that “[W]here a child is sexually assaulted in the defendant wife’s home by her husband, the wife’s duty of reasonable care to the injured child depends on whether the husband’s behavior was reasonably foreseeable.” In order to establish Perlman’s duty to protect the victim from Adkins’s criminal acts, Faul had to produce evidence Perlman had “knowledge of her husband’s deviant propensities.” Here, the circuit court correctly found foreseeability, based on Perlman’s knowledge of Adkins’s deviant propensities, was also necessary to establish proximate cause. Mississippi’s public policy of protecting children against sexual predators warrants strong protection. Thus, proof of constructive knowledge of a spouse’s proclivity toward child molestation is sufficient to establish not only a duty to protect the child but also proximate cause. In this case, however, Faul offered no proof Perlman should have known of Adkins’s deviant propensities. Perlman had known Adkins for several years before they married. During that time Adkins had never been reported, arrested, or convicted for committing a crime, let alone a crime against a child. And the victim testified she never told Perlman what had happened. The circuit court properly granted summary judgment on Faul’s negligent-supervision claim. Issue 2: Negligence per se To establish negligence per se, a plaintiff must show that the defendant breached a statute or ordinance; the plaintiff was within the class protected by the statute or ordinance; and the violation proximately caused his injury. Faul’s complaint alleged Perlman was negligent per se. But it neither alleged the particular statute or ordinance Perlman had violated nor that the victim was within the class protected by that statute. Further, Faul failed to allege that violation of a statute proximately caused her injury. Thus, Faul failed to state she was entitled to relief against Perlman on this claim. Issue 3: Hearing Faul argues the circuit court violated both the Mississippi Rules of Civil Procedure, M.R.C.P. 56, and the Uniform Rules of Circuit and County Court, URCCC 4.03(5), by granting summary judgment without a hearing four days before the scheduled trial. She claims the circuit court was required to deem that Perlman had abandoned her summary-judgment motion because it was not heard at least ten days prior to trial. There is no reversible error in the circuit court’s not deeming Perlman’s motion for summary judgment abandoned under URCCC 4.03(5). There is simply no evidence Perlman failed in her duty to pursue her motion for summary judgment under URCCC 2.04. Trial was set for July 13. Perlman filed her motion for summary judgment on June 15 and set it for hearing. Faul responded on June 28. As noted by the circuit court, the earliest the court could hear the motion was July 12. The fact that Perlman’s motion was not heard by July 2 was due to the court’s busy schedule, not Perlman’s failure to pursue her dispositive motion to a hearing and disposition. Thus, any error is harmless.


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