Roe v. Bibby – Homeowner Had No Duty to Warn of Child Sex Abuse Risk

The South Carolina Court of Appeals recently affirmed a trial court’s grant of summary judgment favoring a homeowner who did not warn the family of neighboring children who visited of her husband’s prior child sexual abuse conviction or propensities.
The decision in Roe v. Bibby was split, with Justices J. Konduros and J. Williams dissenting. The fact that the ruling was not unanimous indicates the South Carolina Supreme Court could very well reach a different conclusion, should it accept review of the case.

Although the underlying allegations are criminal in nature, two separate civil lawsuits – one against the alleged molester/husband and the second against his wife – are rooted in legal theories of negligence and premises liability. Plaintiffs obtained a default judgment against the alleged molester for assault, battery, false imprisonment and infliction of emotional distress (he did not respond at all to the litigation). However, his wife insisted she owed no duty of care to the children, and therefore could not be held liable. The courts agreed.

Our Anderson child injury lawyers understand this was the first time the appellate court had considered this type of case. Although ultimately siding with defendant wife, the court’s ruling will likely be challenged.

According to court records, defendants were married in 1969 and had three children. In 1995, the couple’s 16-year-old daughter alleged her father molested her when she was younger. Father admitted it. Abuse was reported to state child services, father was removed from home and placed in counseling. Later, he was allowed to return.

Thirteen years later, defendants moved into a house across from plaintiffs, who resided with their son and two minor grandchildren. Their grandchildren and granddaughter of defendant became friends and played together. Wife worked outside the home, and was often not present when plaintiff’s granddaughters came over to play. Wife never informed children or their parents/grandparents of her husband’s past.

One year later, defendant husband admitted to a counselor he had sexually abused his granddaughter. When this became known by plaintiffs, they questioned their granddaughters, who confirmed he had sexually abused them as well. He threatened to kill them if they ever told anyone.

Grandfather was arrested for crimes against his granddaughter, though was never prosecuted for alleged crimes against the neighbor girls.

Plaintiffs later asserted they had no knowledge of defendant’s past, and if they did, they never would have allowed the girls to play there.

In the lawsuit against the defendant wife, they alleged failure to warn.

Both trial and appellate courts noted that in order for plaintiff to be found liable on this premises liability theory of negligence, plaintiffs would have to prove a special relationship exception. That is, that defendant owed a duty of care to plaintiffs by way of special relationship. Under south Carolina law, there is not a general duty to control the conduct of another person or to warn a third person or potential victim of danger.

However, there are exceptions to this, where defendant has a special relationship to the victim, has a special relationship to injurer, where defendant voluntarily undertakes a duty, where defendant intentionally or negligently creates a risk or where statute imposes a special duty. Plaintiffs asserted the special relationship exception, arguing defendant had the ability to monitor, supervise and control an individual’s conduct, and the individual has made a specific threat of harm against a specific individual.

That’s a very narrow definition.

In this case, the court found defendant could not control her husband’s actions and he had never specifically made any threat to plaintiff’s granddaughters. She did not have the ability to monitor, supervise him or control him.

Plaintiffs argued evidence of a specific threat could be garnered by past instances of molestation and more recent instance of viewing child pornography, which defendant wife was aware, and the presence of potential and identifiable victims, who were the same age as his known prior victim.

Still, the courts declined to impose this duty, finding defendant wife was not present when minors were there and, as a layperson not understanding recidivism of sexual offenders, believed her husband had been “cured” many years ago.

The court further found that imposing a duty to warn under the premises liability theory here would subject other homeowners to liability to for failure to warn all licensees of all prior bad conduct of any person on site. This, the court found, would be far too broad an interpretation.

Dissenting justices, however, reasoned all that’s required to impose a duty to warn is the finding a defendant knew or should have known of a specific threat made to harm a specific person. It was noted defendant wife knew or should have known of the threat her husband posed to young girls when she invited them into her home unsupervised with her husband, given his prior history.

Contact our South Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.

Additional Resources:
Roe v. Bibby, Oct. 1, 2014, South Carolina Court of Appeals

More Blog Entries:
Lyons v. Richmond Cmty. Sch. Corp. – Disabled Student Choking Deaths at School, Nov. 4, 2014, Anderson Personal Injury Lawyer

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