5D07-2104 5D07-2332 Special Olympics v. Schowalter

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2104

Case Date: 03/09/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

SPECIAL OLYMPICS FLORIDA, INC., Appellant/Cross-Appellee, v. MARGARET SHOWALTER, ET AL., Appellees/Cross-Appellants. ________________________________/ Opinion filed March 13, 2009 Appeal from the Circuit Court for Orange County, Reginald Whitehead, Judge. Elliot H. Scherker and Brigid F. Cech Samole of Greenberg Traurig, P.A., Miami, for Appellant. Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees. Case No. 5D07-2104 & 5D07-2332

PER CURIAM. The central question in this case is whether Appellant may be found liable for the acts of one of its volunteers who molested Appellees, two developmentally disabled adults, in a bowling center parking lot. Although we reverse the judgment and instruct the trial court to direct a verdict as to two counts, we remand for a new trial on the negligence count.

Appellant is a nonprofit organization that "[p]rovide[s] sports training and competition for persons with . . . disabilities, [and] ongoing opportunities to participate with their families and the community." competitions per year in Florida. Appellant sponsors between 11 and 13

All of Appellant's activities are run by county

coordinators, who are volunteers, as are the coaches and others who assist in operating the programs. Appellant has approximately 34 paid staff members throughout Florida and as many as 17,000 volunteers. Appellees, Margaret Showalter and Nancy Vasil, are both developmentally disabled adults who participate as athletes in Appellant's events. Ms. Showalter is apparently somewhat self-reliant, although a social worker resides with her. Ms. Vasil lives with her father, who is her guardian. One of Appellant's organized activities, in which Appellees participate, is an annual bowling competition. The athletes practice between August and November each year and then participate in county, regional and state competitions. Appellant arranged with Colonial Lanes, a public bowling center in Orange County, to conduct much of its bowling activity there. Practices were scheduled to begin every Saturday at 1:30 p.m. and the athletes were instructed to arrive no earlier than 1:00 p.m. However, the

athletes widely ignored this instruction. As a consequence, volunteers routinely arrived at practices early because they anticipated that the athletes would arrive early and need supervision. On October 25, 2003, the day of the molestations, bowling practice was scheduled for 1:30 p.m. On the same day and at the same facility, Appellant also scheduled physicals for some of the athletes, beginning at 10:00 a.m. Appellant had announced the physicals at a prior event via loudspeaker. Appellees knew they were

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not scheduled for physicals, but they both arrived early to socialize before practice. Ms. Showalter travelled to the bowling center using public transportation. Ms. Vasil's father dropped her off at the bowling alley at 10:00 a.m. Although Ms. Vasil's father was aware that practice started at 1:30 p.m., he assumed, based on past experience, that someone from Special Olympics would be there to supervise. Another early arriver to the October 25 practice was the accused molester, 79year-old James McDonald, who had been involved with Appellant for many years in several capacities. As his son was an athlete, Mr. McDonald participated in events as a parent. He was also a registered volunteer. In this capacity, he had been head bowling coach from the 1980s until 1994, at which time he stepped down as head coach due to accusations that he had molested another athlete and her sister. The incidents were investigated by the police, but the charges were dropped two years later. Although Appellant disputes that Mr. McDonald continued to serve in a volunteer capacity after 1994, the evidence taken in the light most favorable to Appellees suggests to the contrary. Evidence was presented that Mr. McDonald's volunteer application remained on file until after the molestations involved in this case. According to Appellant's routine practice, this suggested that Mr. McDonald's volunteer status had not been terminated. He continued to attend practices and events regularly, even arriving early to help all the athletes, not just his son. Louise Newton, the successor bowling coach, admitted that Mr. McDonald was still there every week acting like he was in charge. As she stated: "I guess it was hard [for Mr. McDonald] to let go." After the instant molestations, Appellant sent a letter to Mr. McDonald banning him from attendance at events, but stating that

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"there will be an investigation and [Appellant] shall either reinstate your volunteer duties and opportunities or we shall have to determine an appropriate course of action . . . depending on the outcome of the investigation." Mr. McDonald apparently heeded the directive as he did not attend any of Appellant's events up to the date of trial in 2007. In addition to the accusations that Mr. McDonald had previously molested an athlete and her sister in 1994, other allegations against Mr. McDonald were brought to Appellant's attention prior to October 25, 2003. Between 1994 and 2003, one of the Appellees reported to Ms. Newton that Mr. McDonald had molested her on more than one occasion, albeit not in connection with any of Appellant's events. During this same time period, Ms. Newton was also informed that Mr. McDonald attended dances conducted for developmentally disabled adults (not associated with Appellant's activities) where he escorted attendees to and from his van. Ms. Newton discussed these issues with Mr. McDonald but accepted his denial of claims of wrongdoing. She did, however, caution him to avoid taking developmentally disadvantaged people to his van because it appeared inappropriate. At some point in the year 2000 or 2001, Ms. Newton began keeping a "closer eye" on Mr. McDonald and had a discussion with Charlotte Day, Appellant's county coordinator, about whether he was a liability. Ms. Newton did not, however, warn anyone else associated with Appellant or the athletes' parents or guardians about any suspicions concerning Mr. McDonald. Other than to accept Mr. McDonald's resignation as head bowling coach, Appellant did nothing to limit his involvement with its activities. In fact, most people within Appellant's organization gave no apparent credit to the accusations against Mr. McDonald. For example, the county coordinator in 1994, Jane Fournier, did nothing to

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investigate the 1994 incident, assuming that because prosecutors dropped the charges two years later, Mr. McDonald was cleared of wrongdoing. When Charlotte Day took over as county coordinator in 1998, Ms. Fournier told her that the 1994 incident had been unfounded. Consequently, Ms. Day did not investigate the charges in any way. The county co-coordinator, Patricia Webb, although aware of many of the allegations against Mr. McDonald, concluded that he was "completely harmless." On the day of the instant molestations, Ms. Webb arrived at the bowling center shortly after 10 a.m. to assist a volunteer physician with performing the physicals. Meanwhile, Mr. McDonald lured Appellees outside to his van where he subsequently molested them, one after the other, either in or near his van. At some point in time, Ms. Webb looked out the window into the parking lot and saw Mr. McDonald molesting one of the Appellees. While she was summoning police to report the incident, Mr. McDonald molested the other Appellee. He was subsequently arrested, and his culpability is not herein disputed. Appellees' theory of liability was threefold. In their first count, Appellees asserted that Appellant was under a duty to protect them or control Mr. McDonald, or both, so as to prevent the foreseeable conduct of Mr. McDonald, and Appellant's failure to do so amounted to negligence. In their second count, Appellees asserted that Appellant was liable on a statutory theory. Finally, in their third count, Appellees sought to impose liability on Appellant under an agency theory. The jury returned a verdict for each Appellee on all three counts. Appellant contends that it was entitled to a directed verdict on all three counts. We agree as to the second and third counts, but disagree as to the negligence count. For the sake of clarity, we address each count in reverse order.

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The third count, although labeled "Direct Liability," in substance seeks to impose vicarious liability under an agency theory for the negligence or intentional wrongdoing of Mr. McDonald. Under either theory of liability, liability must be imputed to Appellant by showing that Mr. McDonald was an agent of Appellant and was acting within the scope of his status as agent when he committed the wrong. Appellant argues that neither was established sufficiently to create a jury issue. We disagree in part. We think the

evidence of agency was sufficient to be resolved by the jury. Although Mr. McDonald had resigned as head coach, there was more than ample evidence that he remained a volunteer. He remained registered as such and, more important perhaps, he continued to act as such with Appellant's acquiescence. We agree with Appellant, however, that Mr. McDonald was not acting within the scope of his agency at the time of the incidents, notwithstanding the jury's determination to the contrary. "Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment and, therefore, insufficient to impose vicarious liability on the employer." Nazareth v. Herndon Ambulance Serv., Inc., 467 So. 2d 1076, 1078 (Fla. 5th DCA 1985). Unless it can be established that the abuse occurred in furtherance of the employer's business, this type of conduct is not within the scope of employment. 1 Agriturf Mgmt., Inc. v. Roe, 656 So. 2d 954 (Fla. 2d DCA 1995) (finding abuse occurring on Agriturf's property during time perpetrator closing business not within scope of employment because sexual abuse not in furtherance of employer's business objectives); see Mason v. Fla. Sheriffs' Self-Ins. Fund, 699 So. 2d 268 (Fla.

Appellees' counsel commendably conceded at oral argument that these assaults did not occur within the scope of the agency.

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5th DCA 1997) (holding sexual assault by officer not within scope of employment, even though officer on duty, in uniform and serving warrant on woman he raped). The second count is based on purported statutory liability under section 393.13(3)(g), Florida Statutes (2004). The parties devote considerable argument to whether a violation of the statute is negligence per se, which is how the jury was instructed. We need not address this issue because we conclude that there was no statutory violation by Appellant. If at all, the statute only imposes civil liability on the one who harms the victim and perhaps those who are vicariously liable for that person's actions.2 Here, Appellant is not the abuser. Further, as previously discussed, Mr. Thus,

McDonald was not acting within the scope of his agency with Appellant. Appellant is not vicariously liable for Mr. McDonald's conduct.

Our conclusion on the agency issue does not resolve the first count, however, which Appellees label "NEGLIGENCE." Although not a model of clarity, this count

seeks to impose direct liability against Appellant because Appellant either had a duty to protect Appellees or had a duty to control Mr. McDonald, or both, and failed in that duty with resulting harm. This theory of liability is not dependent on a finding that the

abuser's conduct fell within the scope of the agency or, for that matter, that the abuser was an agent. Instead, liability turns on whether there existed a "special relationship" giving rise to a duty to control or protect or both. According to the Restatement (Second) of Torts:

Because the judge charged the jury that a violation of the statute is negligence, it is impossible to tell whether the verdict for Appellees on the negligence count was premised on a violation of the statute or a violation of the common law duty.

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There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. Restatement (Second) of Torts

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