104 So. 3d 148
Miss. Ct. App.2012Background
- Esther Perlman’s former husband Adkins sexually assaulted Faul’s ten-year-old granddaughter (A.F.) in Perlman’s home on three occasions in 2004; Adkins pled guilty and was sentenced.
- Faul, as A.F.’s guardian, sued Perlman for negligent supervision and negligence per se, alleging Perlman owed a duty to protect the child in her home.
- The Harrison County Circuit Court granted Perlman summary judgment, finding no actual or constructive knowledge by Perlman of Adkins’s criminal propensities and no foreseeability of harm.
- Faul appealed, arguing Perlman had knowledge or should have known of Adkins’s propensities, making the harm foreseeable and causally connected to Perlman’s supervision.
- At reconsideration, Faul offered a letter referencing Adkins but the court rejected it as evidence of Perlman’s knowledge about Adkins’s deviant propensities in 2004.
- On de novo review, the Mississippi Supreme Court affirmed, holding no triable issue on foreseeability and finding any procedural missteps harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perlman owed a duty based on foreseeability | Faul contends Perlman had knowledge or should have known of Adkins’s propensities. | Perlman lacked actual or constructive knowledge of Adkins’s deviant propensities; no foreseeability. | No triable issue; foreseeability not proven; duty not established. |
| Whether Perlman's conduct sufficed to establish negligent supervision | Faul argues foreseeability supports proximate causation and duty. | Absent knowledge of propensities, negligence cannot be shown. | No triable issue; summary judgment affirmed. |
| Whether the negligence per se claim was properly pled and adjudicated | Faul asserted negligence per se based on a statute or ordinance. | Complaint failed to specify the statute/class protected or causation. | Negligence per se claim dismissed for failure to plead and prove elements. |
| Whether the circuit court’s summary judgment without a hearing was reversible error | Faul argues lack of hearing violated rules and procedure. | Harmless error if no genuine issues of material fact exist. | Harmless error; de novo review shows no triable issues. |
Key Cases Cited
- Simpson v. Boyd, 880 So.2d 1047 (Miss. 2004) (foreseeability as a factor in duty for premises and supervision)
- Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203 (Miss. 2000) (supervision duty based on foreseeability within school context)
- Glover ex rel. Glover v. Jackson State Univ., 968 So.2d 1267 (Miss. 2007) (foreseeability and knowledge in negligent supervision claims)
- Pamela L. v. Farmer, 169 Cal.Rptr. 284 (Cal. Ct. App. 1980) (special relationship and foreseeability in spousal liability)
- Chaney v. Superior Court, 46 Cal.Rptr.2d 73 (Cal. Ct. App. 1995) (special-relationship foreseeability standard for spouses of child molesters)
- Doe v. Franklin, 930 S.W.2d 921 (Tex. Ct. App. 1996) (foreseeability standard for spousal liability in child-molestation context)