In Russell v. Department of Corrections and Rehabilitation, published December 16, 2021, the Third Appellate District reversed a trial court’s denial of judgment notwithstanding the verdict after a jury trial. The plaintiff was the son of a woman who was raped and murdered by her grandson, a parolee who suffered from severe mental illness and substance abuse. The victim had raised the grandson and treated him like a son. One of the defendants was the grandson’s parole agent from 2007 to 2012, and the other was the parole agent from 2012 to the month of the victim’s murder in 2013. From 2007 to 2011, the grandson lived with the victim while the grandson was on parole. The first parole agent and the victim interacted at least twice a month and were friendly. The agent authorized the grandson living at the victim’s house. He regularly drug tested the grandson, assisted the victim by ordering the grandson to obtain mental health treatment when he appeared unstable, and agreed to help the grandson find his own place to live. He advised the victim not to give the grandson all of his Social Security money at once, so that he would have enough money through the month. In 2011, the grandson was arrested for sex crimes. In 2012, the grandson was released from state hospital. He went to stay with the grandmother at her house. When the second parole agent took over the case, the grandson was homeless, and the grandmother wanted him to stay at her home. The parole agent informed them that they could not live together, because the house was too close to a school and the grandson was a registered sex offender. The agent eventually told her that the grandson could be at her home during the day, but had to leave at night. There was disputed evidence the agent promised the grandmother that he would find the grandson his own place to live. The grandson repeatedly absconded and cut off his GPS tracking device. At one point, the grandson was arrested at the victim’s house by a fugitive apprehension team. The grandmother was allowing the grandson to live with her. In late 2012 or early 2013, the grandmother called the agent and told her the grandson was “acting out,” and that the grandmother had had to pull a knife on him. In February 2013, the grandson was jailed and released. Three days later, the grandson killed the grandmother. The plaintiff sued the Department of Corrections and the parole agents for negligence. At trial, the court instructed the jury to determine whether the agents were in a special relationship with the grandmother. The jury found a special relationship existed, that the agents breached a duty of care to the grandmother, and that the breach caused the rape and murder. The jury apportioned 60% fault against the Department. The trial court denied the Department’s JNOV motion.
The Court of Appeal ruled that the trial court had erred in submitting the issue of whether a special relationship existed to the jury. A person does not owe another person a duty to warn or protect against a third party’s acts unless there exists a special relationship between the parties (or between the defendant and the third party) or some other set of circumstances giving rise to an affirmative duty. Whether a duty exists is an issue of law for the court, not an issue of fact for the jury. Although the Department did not object to the special relationship instruction to the jury, a party does not forfeit application of the proper standard of review by failing to object in the trial court. Further, the Department stated in briefing that the duty issue was one of law. The appellate court therefore examined the evidence de novo to determine whether a special relationship existed, viewing the facts in the light most favorable to the plaintiff. The court determined that neither agent formed a special relationship with the grandmother that would have given rise to a duty to warn her of the grandson’s dangerous propensities. Neither agent made an express or implied promise of protection to the grandmother that caused her to detrimentally rely on the promise. Neither agent lulled the grandmother into a false sense of security, inducing detrimental reliance and causing her to worsen her position. Neither created a foreseeable peril to the grandmother that was not readily discoverable by the grandmother. The court therefore reversed the judgment.
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