Cases from other jurisdictions that apply a "particular

acts" requirement similar to that applied in Florida are also
instructive. In Parsons, 350 S.W,2d at 1277, the Arizona Supreme
Court held that evidence of prior conduct known by the defendant
parents was insufficient to make reasonably foreseeable that
their teenage child would engage in acts as violent and vicious
as those underlying the claim in the case, The injurious conduct
was that the teenager committed a home invasion in which he
threatened a mother and her daughters, beat the mother with a
hammer, cut the mother with a knife (including nearly severing
her ear), and demanded that the mother take off her clothes and
lay down on the floor. See id. at 1273. The evidence of prior
conduct known to the parents was that (a) the teenager had once
told a woman on the street to remove her clothes and threatened
to throw rocks at her when she refused; (b) he was a behavioral
problem in school where he poked and pummeled other children and
acted aggressively; (c) he had once forced his way into a
classmate's home and shoved her around; and (d) the parents

had been repeatedly advised he needed psychiatric or other
counseling. See id. at 1275. In Wells, 657 N.E.2d at 177-78,
the Indiana Court of Appeals held that knowledge that their
son/grandson had killed a pet dog and pet hamster within the past
year, admitted to being full of anger, exhibited uncontrollable

anger, had been in a fight at a school, and was in need of

- 14 -


exception, however, is very narrow. It is limited to situations

in which the parent knew or should have known "the child had a
habit of engaging in a particular act or course of conduct which
led to the plaintiff's injury." Snow, 475 So, 2d at 226;
Thompson, 741 So, 2d at 632; K.C., 577 So. 2d at 671; Brown v.

Seebach, 763 F. Supp. 574, 581 &n.1 (S.D. Fla. 1991). The prior
acts need not be identical to those causing the injury that is
the subject of the lawsuit, but the prior conduct must have been
habitual and involve sufficiently "similar acta." Gissen,

80 So. 2d at 705, The prior act or acts of the child must have
put the parent on notice that the child would possibly cause the
injury that is the subject of the present suit. Pardo v.

Carhart, 546 So. 24 1142, 1142 (Fla. Dist. Ct. App. 1989)

(per curiam). In other words, the injury that occurs must be

reasonably foreseeable by the parent. See Gi , 80 So, 2d at
704 (quoting Condel_v. Save, 350 Pa. 350, 39 A.2d 51, 52 (1944));

Wells v. Hickman, 657 N.E.2d 172, 178 (Ind. Ct. App. 1995) ,?

3Indiana follows the same common law rules for negligent
failure to control by parents as does Florida. See, e.g.,
Wells, 657 N,E.2d at 176-78 (following K.C., 577 So. 2d at 671).
Florida's seminal case on the issue of negligent supervision by
parents cited to the Restatement of Torts § 316 (1939). See
Gissen, 80 F.3d at 703, Other jurisdictions follow the same
provision (which is now in the Restatement (Second) of Torte
§ 316 (1965)) and, like Florida, apply a "particular acta"
requirement. See, ¢.g., Nielsen v. Spencer, 287 Wis. 2d 273,
704 N.W.2d 390, 395 (Wis. Ct. App. 2005) (collecting cases);
Wells, 657 N.E.2d at 178; Parsons v. Smithey, 109 Ariz. 49,
504 P.2d 1272, 1275-76 (1973). See also Restatement (Second) of

~5-


was to keep the offender out of situations where he or she would

have the opportunity to reoffend, such as being alone with

children.

In a November 7, 2001 report to the court,® T.v.'s
probation officer reported that he had no problems at home or in
school. She also reported that he was doing well at CYN and
participating positively in group therapy.

In preparation for a March 22, 2002 court hearing, T.V.'s
probation officer received a March 5, 2002 letter from a
psychologist at CYN. The psychologist sent defendants a copy of
the letter. The psychologist wrote, in part:

: Since his review date in November
2001, T, V. has been punctual and regular in
attendance. While T.V. is not our most
active group member, he has established a
quiet strength in the group and continues to
demonstrate good leadership qualities. Over
the past few months his strength has been
particularly evident as he has confronted
peers in an open, empathic manner. T.V. has
also shown a thorough understanding of
concepts and has made excellent progress in
his application of this knowledge. This was
particularly evident as T.V. presented an
updated layout in which he showed a
comprehensive understanding of his
motivation for committing his offense, as

‘This document may be considered on summary judgment
since it would be admissible in evidence. See Fed. R. Evid.
803(8), 803(6), 803(4); United States v, Hall, 419 F.3d 980, 987
(9th Cir, 2005); United States v. Walker, 117 "Pad 417, 420-21
(9th Cir. 1997); United States ex rel. Collins v, Welborn,

79 F. Supp. 2d 898, 906 n.5 (N.D. Ill. 1999), aff'd bn
Bracy v. Schomig, 286 F.3d 406 (7th Cir. 2002) (en banc).



WL 574466 *6 (N.D. Ill. May 11, 2000). No fact will be
considered in dispute based on plaintiff seeking to apply an
adverse inference based on T.V.'s decision not to answer
questions at a deposition. Also, simply asserting a fact is
disputed without citing contrary evidence or pointing out that
defendants' cited support is deficient does not support a genuine

factual dispute. ee Murray v. Indymac Bank, F.S.B., 2007 WL

2741650 *7 (N.D. Ill. Sept. 13, 2007); Keck Garrett & Associates,
Inc. v. Nextel Communications, Inc., 2007 WL 257638 *3 n.10 (N.D.
Ill. Jan. 24, 2007).

Resolving all genuine factual disputes and drawing all
reasonable inferences in plaintiff's favor, the facts aasumed to
be true for purposes of summary judgment are as follows. The
incident that is central to this complaint occurred on March 29,
2002 at the outdoor pool area of a Florida condominium complex.
At the time, plaintiff was six years old and vacationing with her
parents and grandparents. Defendants, who reside in Illinois,
were on vacation with their children, including T.V. who was then
15 years old, The V.'s had been vacationing at this same
location for nine or ten years.

On the afternoon of March 29, T.V. was at the condominium
pool with his father, G.V. Plaintiff was there with her father

and grandparents. T.V. requested a key from G.V. to get into a


See generally McCain v. Florida Power Corp., 593 So. 2d 500,
502-03 (Fla. 1992) (in distinct ways, foreseeability is an aspect

ef both legal duty and causation).

Defendants contend plaintiff's claim fails because their
son's prior misconduct was not similar enough to the particular
acts of misconduct underlying plaintiff's claim. Defendants also
raise the related argument that their son's conduct toward
plaintiff was not foreseeable.

Before reciting the facts of this case, it is noted that,
regarding many of the factual statements adequately supported by
the evidence cited in defendants' Rule 56.1(a) (3) Statement of
Facts, plaintiff asserts the atatement is in dispute based on the
adverse inference that can be drawn based on T.V. having invoked
the Fifth Amendment for his deposition. Plaintiff, however, does
not provide the questions. as to which T.V. invoked his right to
remain silent nor explain what inference should be drawn since no
deposition was taken. While it is possible to apply the adverse

inference when a non-party invoking the right is the child of a

Party, plaintiff does not make the necessary arguments or provide

the necessary supporting facts to draw such an inference, See

generally LiButti v. United States, 107 F.3d 110, 123-24 (2d Cir.
1997); State Farm Mutual Automobile Insurance Co. v. Abrams, 2000

Torts § 316 Reporter's Notes ("There must . . . be some specific
propensity of the child, of which the parent has notice.").



eventually stipulated to a single criminal count. On August 25,

2000, he was adjudicated delinquent and sentenced to three years!
probation. T.V. was required to participate in treatment to the
extent directed by Juvenile Court Services. "CYN" was designated
as the provider of treatment. The sentencing order expressly
provides that T.V.'s parents are to "cooperate with the parental
component of the Administrative Sanctions Program/Juvenile Court
Services" and that they are to report any violations of the
sentencing order, The sentencing order prohibited T.V. from
having any unsupervised contact with children under age 12.

Prior to being adjudicated delinquent, defendants took
T.V. to a family therapist for counseling. The therapist advised
defendants that he did not think T.V. was in serious trouble.!
On September 12, 2000, T.V. began his treatment at CYN. T.V.
attended weekly group therapy sessions and both parents attended
monthly family sessions. Defendants were also provided with
reading materials which they both read. Defendants learned from
these materials that there was a continuing risk that T.V. would

reoffend. One of the recommendations for avoiding a new offense

‘Plaintiff objects that this is inadmissible hearsay.
However, it is not offered for the truth of the therapist's
opinion, but to show what information defendants were provided,
Opinions of therapists that were conveyed to the defendant
parents may be relevant to whether the injurious conduct that
occurred was foreseeable. See Parsons, 504 P.2d at 1276-77;
Wells, 657 N.E.2d at 178.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

A.K. a minor by her
parents and next best friends,
8.K. and P,K.,

)
)
)
)
Plaintiff, )
)

Vv. ) No. 03 C 7071
)
G.V, and E.V., )
)
Defendants, )
“ ME UM OPINION ORDER

Plaintiff, A.K.,1 a minor, appears by her parents and
next friends.? In 2002, when plaintiff was six years old and on
a vacation in Florida, a 15-year-old boy (T.V.) allegedly
mistreated plaintiff. Named as defendants are T.V.'s parents,
G.V. and E.V. Defendants are alleged to be liable for

negligently supervising their child. The parties agree that

‘In the interests of the minor plaintiff and to protect
the confidentiality of events involving defendants' son when he
was a minor, this is a modified version of this court's ruling
that will be filed in the public record. A full version of
today's ruling is being filed under seal and has been mailed to
the parties' attorneys, The modified version leaves out much of
the factual detail and uses only the initials of the persons
involved.

*For simplicity in presentation, A.K. will be referred to
as the plaintiff,



In Gissen, the defendants and their family resided at a

hotel and defendants knew their eight-year-old girl had the
tendency and propensity to strike, knock down, and damage
furniture and furnishings and also to disturb and harass other
guests. The injury that was the subject of the suit was slamming
a door on a hotel employee's hand with such force that a finger
was severed. Gissen, 80 So. 2d at 702. After describing the
Restatement and cases from other jurisdictions, the Florida
Supreme Court noted that "[o}]ne common factor from the foregoing
cases appears salient in the assessment of liability to the
parents, that the child had the habit of doing the particular
type of wrongful act which resulted in the injury complained of,"
Id. at 705. It was held that "[t]he deed of a child, the
enactment of which results in harm to another and which is
unrelated to any previous act or acts of the child cannot be laid
at the door of the parents simply because the child happened to
be born theirs. However, a wrongful act by an infant which
climaxes a course of conduct involving similar acts may lead to
the parents' accountability. A deed brought on by a totally
unexpected reaction to a situation which is isolated of origin
and provocation could not have been foretold or averted and hence
could not render the parents responsible." Id, While some of
the general statements in Gissen indicate it may be sufficient

that the type of conduct is similar, the actual holding of Gissen

- 12 -


well as an increasing responsibility for his
thoughts and how they related to his
offense... .

T.V. is in the final stage of Phase II
(e.g,., completing a long difficult workbook
chapter) and I anticipate that he will be
promoted to Phase III by the end of the
month .

While on probation, T.V. had previously received
permission to travel out of state. This included a family
vacation to the same condominium complex in March 2001, During
that trip, T.V. went to the pool with his parents and went alone
to the same building without any incident.

On March 29, 2002, G.V. was aware that children under 12
were in the pool area. On that day, and during prior trips, G.V.
had never observed any child under 12 going alone to use the
building where the incident with plaintiff occurred.

The first question to consider is whether the incident
with plaintiff was similar enough to his past habits to satisfy
the "particular acts" requirement, In Snow, the Florida Supreme
Court reaffirmed that the narrow "particular acts" requirement
set forth in Gissen continued to apply to claims that a parent
negligently failed to control his or her child. "Appellants urge
that this narrow application works an injustice and should be

receded from. We disagree and see no reason to recede from

Gissen." Snow, 475 So. 2d at 226.

-i1-


facility in the pool area. T.V. was gone at least 15 minutes.‘

While T.V. was gone, G.V. occasionally glanced in that area, but
T.V. was inside a building without windows so G.V. could not see
what T.V. was doing. While gone, T.V. had an encounter with
plaintiff. T.V. exited the building and was spotted by his
father. Shortly thereafter, plaintiff screamed and came out of
the building.

Shortly after plaintiff screamed, G.V. asked T.V, if he
had done anything, but T.V. denied any involvement. T.V.'s8
denial did not satisfy G.V., who took T.V. over to plaintiff's
family and asked if T.V. was involved. Initially, plaintiff
answered that she did not know if he wag the one. Subsequently,
T.V. confessed to a detective. T.V. also told his father what
happened.

Prior to March 2002, both defendants were aware of two
incidents that T.V. engaged in that involved younger children.

T.V. admitted the incident with one of the children and

‘Testimony varies regarding how long T.V. was gone.
Genuine disputes must be resolved in plaintiff's favor, which
would be the longest time supported by the testimony, In
response to summary judgment, plaintiff contends it was 15
minutes. There is sufficient evidence to support that
contention. T.V. told a detective he was in the sauna for five
minutes before going to another room. One person testified that
plaintiff was away for up to 10 minutes. T.V. was in the room
where he encountered plaintiff for at least a few minutes before
plaintiff arrived. A reasonable finder of fact could find that
T.V. was gone for 15 minutes or more.



governing law will properly preclude the entry of
summary judgment." McGinn v. Burlington Northern
RR. Co., 102 F.3d 295, 298 (7th Cir. 1996)
(citation omitted). Furthermore, a factual
dispute is "genuine" for summary judgment
Purposes only when there is "sufficient evidence
favoring the nonmoving party for a jury to return
a verdict for that party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,
91 L. Ed, 2d 202 (1986). Hence, a "metaphysical
doubt" regarding the existence of a genuine fact.
issue is not enough to stave off summary
judgment, and "the nonmovant fails to demonstrate
a genuine issue for trial ‘where the record taken
as a whole could not lead a rational trier of
fact to find for the non-moving party . . au
Logan, 96 F.3d at 978 (quoting Matsushita Elec.
Indus, Co,, Ltd. v, Zenith Radio Corp., 475 U.S.

574, 587, 106 S$. Ct. 1348, 89 L. Ed, 2d 538
(1986)).
Outlaw, 259 F.3d at 837.
Under Florida law, a parent is not liable for torts of a

minor child solely based on paternity. Gil v

901 So. 2d 334, 336 (Fla. Dist. Ct. App. 2005) (quoting
Seabrook v. Taylor, 199 So. 2d 315, 317 (Fla. Dist. Ct. App.
1967)); K.c. v. A.P,, 577 So. 2d 669, 671 (Fla. Dist. ct. App.
1991) (per curiam) (quoting Gissen v. Goodwill, 80 So. 2d 701

703 (Fla. 1955)). A parent, however, will be liable for the

torts of a child "where the parent fails to exercise control
over the minor child although the parent knows or with due care
should know that injury to another is possible." Snow v. Nelson,
475 So, 2d 225, 226 (Fla. 1985) (per curiam). Accord Thompson v.

Baniqued, 741 So. 2d 629, 632 (Fla. Dist. Ct. App. 1999). This


counseling wags not a basis for holding his mother/grandparents

liable for his murder of a playmate with whom he had previously
had no problems. In Shepard v, Porter, 679 N.E.2d 1383, 1389-90
(Ind. Ct. App. 1997), the court held that the fact that the boys
who engaged in the misconduct had "mischievous, reckless,
heedless, or vicious and malicious dispositions, and reputations
for possessing such dispositions" did not support a claim based
on a fire they set since there was no evidence their parents were
aware they had previously set any fires.

Here, T.V.'s prior incidents of misconduct were
dissimilar to the incident involving plaintiff. The prior
incidents occurred in situations where T.V. had more control over
the other children. There is no evidence of T.V. having
previously committed the same actions that he did in the incident
involving plaintiff. Snow makes clear that prior behavior that
is in the same general category as the later injurious conduct,
such as hitting smaller children in Snow or mistreating younger
children as in the present case is not particular enough to
satisfy the particular acts requirement, In Snow, particularity
required that defendant's child have previously used the same
instrumentality to injure other children. Here, the mistreatment
of plaintiff is not the same particular offense that T.V. had

previously engaged in.

- 15 -


679 (7th Cir. 2004); NLFC. Inc, v. Devcom Mid-America, Inc.,

45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S, 1104 (1995);

Covalt v. Carey Canada, Ine., 950 F.2d 481, 485 (7th Cir. 1991);

Collins v. Associated Pathologists, Ltd., 844 F,2d 473, 476-77

(7th Cir.), cert, denied, 488 U.S. 852 (1988); Shyman v. UNUM

Life Insurance Co. of America, 2004 WL 609280 *2 (N.D. Ill.

March 25, 2004), aff'd, 427 F.3d 452 (7th Cir. 2005), As the
Seventh Circuit has summarized:

The party moving for summary judgment
carries the initial burden of production to
identify "those portions of the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence
of a genuine issue of material fact." Logan v.
Commercial Union Ins. Co., 96 F.3d 971, 978 (7th
Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 8. Ct. 2548, 91 L. Ed. 2d
265 (1986) (citation and internal quotation
omitted)). The moving party may discharge this
burden by "'showing'--that is, pointing out to
the district court--that there is an absence of
evidence to support the nonmoving party's case."
Celotex, 477 U.S. at 325, 106 S. Ct. 2548. Once
the moving party satisfies this burden, the
nonmovant must "set forth specific facts showing
that there is a genuine issue for trial." Fed,
R. Civ. P. 56(e). “The nonmovant must do

more, however, than demonstrate some factual
disagreement between the parties; the issue

must be 'material.'" Logan, 96 F.3d at 978.
"Irrelevant or unnecessary facts do not preclude
summary judgment even when they are in dispute."
Id. (citation omitted). In determining whether
the nonmovant has identified a "material" issue
of fact for trial, we are guided by the
applicable substantive law; "[o}]nly disputes that
could affect the outcome of the suit under


Florida tort law applies to this claim. Cf. A.K. v. G.V., 2004
WL 1093474 (N.D, Ill. April 30, 2004). Defendants have moved for
summary judgment.

On a motion for summary judgment, the entire record is
considered with all reasonable inferences drawn in favor of the
nonmovant and all factual disputes resolved in favor of the
nonmovant. Seott v. Harris, 127 S. Ct. 1769, 1774, 1776 (2007);
Scaife v. Cook County, 446 F.3d 735, 738-39 (7th Cir. 2006). The
burden of establishing a lack of any genuine issue of material
fact rests on the movant. Creditor's Committee of Jumer's Castle
Lodge, Inc, v. Jumer, 472 F.3d 943, 946 (7th Cir, 2007);

Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). The
nonmovant, however, must make a showing sufficient to establish
any essential element for which she will bear the burden of proof
at trial. Celotex Corp. v. Catrett, 477 U.S, 317, 322 (1986);
dumer, 472 F.3d at 946; Cady v. Sheahan, 467 F.3d 1057, 1061

(7th Cir. 2006), cert. denied, 127 S. Ct. 2947 (2007). The

movant need not provide affidavits or deposition testimony

showing the nonexistence of such essential elements. Celotex,
477 U.S. at 324. Also, it is not sufficient to show evidence of
purportedly disputed facts if those facts are not plausible in

light of the entire record. See Yagak v. Retirement Board of

Policemen's Annui & Benefit Fund of Chicago, 357 F.3d 677,



makes Clear that the particular prior acts (not just the type of
conduct) must be very similar to the injurious acta underlying
the claim. In Gissen, it was not sufficient that the child had a
known propensity to engage in destructive conduct without regard

to the damage done to hotel furnishings because there was no

allegation that the child "had a propensity to sawing or slam

doors at the hazard of persons using such doors." Id. In Snow,
the prior acts and injurious acts underlying the claim were even
closer in nature, but still insufficient to support a claim, In
Snow, the child had a known propensity to be rough with smaller
children by pushing or hitting them. The injury at issue was
caused by defendants' child hitting a smaller child with a
awinging croquet mallet. It was held that the threshold
"particular acts" requirement was not satisfied because there was
no allegation that any of the prior hitting was done with a
croquet mallet. Snow, 475 So. 2d at 226. In Pardo, 546 So, 2d
at 1142, the Florida District Court of Appeal held that, in light
ef Gissen and Snow, prior acts of throwing a mask that struck
another child in the face and a shoving incident on a bus were
not sufficient to support a claim that the child had injured
another child's eye by punching him in the face during a
fistfight since there was no evidence of previously engaging in a

fistfight.



Plaintiff fails to satisfy the strict "particular acts"
requirement that is a threshold requirement for parental failure
to control claims under Florida law. Since plaintiff fails to
satisfy this threshold requirement, her claim must be dismissed.
Additionally, since plaintiff does not satisfy this threshold
requirement, it is unnecessary to also consider defendants'
arguments regarding foreseeability and causation.

IT IS THEREFORE ORDERED that defendants' motion for
summary judgment [70] is granted. A more factually complete
version of today's ruling is being filed under seal. The Clerk
of the Court is directed to enter judgment in favor of defendants
and against plaintiff dismissing plaintiff's cause of action with

prejudice.

ENTER:

Ihywi.? Berk

UNITED’ STATES DISTRICT JUDGE

DATED: NOVEMBER / , 2007