In an opinion detailing alleged events pulled from every parent's nightmare, the Supreme Court of Virginia recently addressed the question of whether an agreement to supervise and care for another person's child gives rise to a duty to that child under Virginia law. In Kellerman v. McDonough, No. 081718, 2009 WL 2064613 (Va. July 17, 2009), the supreme court answered that question in the affirmative.
In Kellerman, the plaintiff alleged that the defendants invited plaintiff's decedent, Jaimee, a 14-year-old girl, to stay overnight with them and their 14-year-old daughter, Becka. According to the complaint, Jaimee's father specifically instructed Becka's mother, Paula, that Jaimee was not to get into any vehicles being driven by inexperienced drivers or boys, and Paula assured him that she would take care of Jaimee during her stay. After Paula picked Jaimee up, she dropped Jaimee and Becka off at a shopping mall and left. Jaimee's friend Matt, a 17-year-old boy with a bad reputation, met the girls at the mall and attended a movie with them. When the movie was over, Becka contacted her mother by telephone. Paula either permitted or instructed Becka and Jaimee to get a ride home with Matt. Jaimee did not wish to get in the car with Matt, but after she was unable to obtain another ride and upon learning that Paula had instructed them to do so, she got in Matt's car. Matt drove the vehicle in a reckless fashion and ultimately crashed the car, resulting in Jaimee's death.
The trial court held that the complaint failed to state a cause of action against the defendants and granted the defendants' demurrer. On appeal, the Supreme Court of Virginia reversed the trial court's decision. The court held that the complaint stated a cause of action for common-law negligence against the defendants. The court reasoned that when a parent relinquishes the supervision and care of a child to an adult who agrees to supervise and care for the child, a duty arises which must be discharged with reasonable care. The plaintiff stated a cause of action against Becka's parents based on their invitation to Jaimee to stay with them and on her dependence on them for her supervision and care.
The court also held that the plaintiff pleaded a cause of action cognizable in tort against Paula on the theory that she assumed a duty to Jaimee to provide services to Jaimee when she agreed to honor Jaimee's father's request that Jaimee not be permitted to ride in vehicles driven by boys or inexperienced drivers. However, the court refused to hold that Becka's father had assumed any duty to provide services to Jaimee, as he was not present when the agreement was made. Finally, the court held that no special relationship existed between the defendants and Jaimee giving rise to a duty to protect her from harm by third persons, and the trial court therefore properly sustained the defendants' demurrer with respect to that theory.
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A same-sex couple cohabiting and raising a child together brought an action against a health club under the public accommodations provision of the Minnesota Human Rights Act (MHRA). Monson v. Rochester Athletic Club, 759 N.W.2d 60 (Minn. Ct. App. 2009). They alleged discrimination based on sexual orientation, arising from the club's refusal to allow them to become club members at a "family membership" rate. The MHRA does prohibit sexual-orientation discrimination, along with other types of discrimination, but the couple was unable to prevail on either a disparate-treatment or disparate-impact theory.
Regarding the disparate-treatment claim, the plaintiffs, who were not married, did not show differential treatment based on sexual orientation, which was an essential element of a prima facie case, in the absence of evidence that the club intentionally or knowingly allowed unmarried heterosexual couples to obtain family memberships. In fact, the health club's policy was to allow only married couples, regardless of sexual orientation, to join the club at a family membership rate. The policy and its application to the plaintiffs was not facially discriminatory against same-sex couples, even though a separate Minnesota statute provided that only opposite-sex couples could be married. On its face, the club's policy denied family membership to unmarried heterosexual couples and unmarried homosexual couples alike; it was only when the club's policy was combined with the marriage statute that a disparate impact occurred, as distinguished from disparate treatment.
Although the club's analysis and rejection of the disparate-treatment claim at least suggested the presence of a disparate impact against same-sex couples, and the plaintiffs in particular, that claim also failed as a matter of law, not for factual deficiencies. The court ruled that a disparate-impact theory is not applicable to discrimination claims under the public accommodations provision of the MHRA. The text of that provision focuses solely on the public accommodations provider's conduct in denying full and fair enjoyment of the accommodation, and does not address the effects of the provider's conduct caused by other factors beyond the provider's control, such as Minnesota's statute on marriage.
Unlike the employment discrimination parts of the MHRA and some other state and federal antidiscrimination laws, the public accommodations provision of the MHRA does not include effects-based language that would indicate a legislative intent to allow a disparate-impact claim. Instead, it provides only that "[i]t is an unfair discriminatory practice . . . to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex." Minn. Stat. ยง 363A.11, subd. 1(a)(1). While the MHRA is to be liberally construed to accomplish its purposes, a liberal construction could not enlarge the legislation beyond its clear and definite scope so as to find authorization for a disparate-impact claim.
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Parties opposing a restrictive covenant pertaining to real property often claim that the covenant has been waived or abandoned. Waiver or abandonment of a restrictive covenant can be found when there have been material violations of the covenant and no objection to the violations by the parties entitled to enforce the covenants. To guard against waiver or abandonment, restrictive covenants often contain express nonwaiver provisions. These nonwaiver provisions may provide that a failure to enforce the covenant at the time of its violation shall not be deemed a waiver of the right to subsequently enforce the covenant.
However, even when a restrictive covenant contains a nonwaiver provision, this may not automatically preclude the finding of a waiver. A nonwaiver provision can be rendered ineffective, or can itself be deemed waived, when there has been a complete abandonment of the restrictive covenant or set of restrictive covenants.
As explained in the recent case of Musgrove v. Westridge St. Partners I, LLC, No. 2-07-281-CV, 2009 WL 976010 (Tex. App. Apr. 9, 2009) (rehearing en banc denied), such an abandonment can occur "when the violations are so pervasive that they have 'destroyed the fundamental character of the neighborhood.'" Id. at *4 (quoting Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 87 P.3d 81, 87 (2004)). The Texas case involved restrictive covenants pertaining to frontage, setback, and the amount of free space between side property lines. The court considered that the numerous and previous violations of the restrictions were so pervasive that they destroyed the fundamental character of the neighborhood, thereby constituting a complete abandonment of the entire set of restrictions and waiving the nonwaiver provision. Four of the original eight lots now contained apartment buildings and garden homes instead of single-family residences. Most of the structures built on the four lots violated one or more of the restrictions, the block had primarily become condominiums, townhouses, and garden homes, and no prior attempt to enforce the restrictions was shown.
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Several recent decisions suggest that the psychological disorder identified as "Munchausen by Proxy" is not as rare as might have been hoped. The court in an unpublished Tennessee decision quoted an expert who described the disorder by saying that "'the parent, for reasons unknown, will try to get a child or person in their care to be diagnosed with an illness of some kind. There seems to be some kind of odd gratification from being needed and indispensable to the "sick" child.'" Riddle v. Woods, 2008 WL 3850491, at *7 (Tenn. Ct. App. 2008) (not reported).
Several decisions have implicated this disorder in cases in which unfounded allegations of sexual abuse were made in custody disputes. In a recent unpublished North Carolina decision, the mother appealed from an award of custody to the father after she had alleged that the father had sexually abused their child during the father's visitation. Following the mother's allegations of abuse, the father had sought sole custody on allegations that the mother "was harming the child as a result of a psychological disorder, 'such as Munchausen by Proxy,'" and that the mother refused to allow the father any contact with the child. Mooney v. Mooney, No. COA 08-998, 676 S.E.2d 669, 2009 WL 1383395, at *1 (N.C. Ct. App. 2009) (unpublished table disposition).
In Mooney, the parties had reached an agreement granting the parties joint legal custody and divided physical custody on a weekly basis. The mother failed to comply with the agreement, and when the father sought to enforce the custody agreement several months later, the mother filed allegations of new disclosures of sexual abuse by the father. The court heard the matter and awarded sole custody to the father. The trial court found that "the child's 'verbal accounts of molestation are descriptions of a concept, and not of a memory of real events, and that the concept has been put in his mind, whether by suggestion, or by clumsy questioning, or deliberately," by the mother. The court then found that the mother's "behavior in instilling the concept of molestation in the child's mind constituted 'a form of child abuse.'" 2009 WL 1383395, at *3. The appellate court concluded that the trial court's findings were supported by substantial evidence, and affirmed. Id. at *4.
In a similar decision, the child in In re T.D., 2006 WL 3018131 (Iowa Ct. App. 2006) (unpublished), was removed from her mother and placed with her father, based on concerns that the mother was instilling false memories of sex abuse in her young daughter and was shopping for therapists.
Several other cases have also resulted in an award of custody to the father after a finding of what the court in Riddle, cited above, described as "an unhealthy enmeshment between the child and his mother at the present time." 2008 WL 3850491, at *7. In Riddle, the court concluded that the mother had taken the child "to numerous doctors and mental health professionals, including a mental hospitalization facility," and had falsely claimed that the child suffered from various mental and physical ailments "to such extent that the trial court agreed with an expert psychologist's opinion that the mother had committed child abuse." Id. at *1. In that case, too, the appellate court affirmed an award of sole custody to the father.
Similarly, in White v. Sanderman, 752 N.W.2d 452, 2008 WL 2038807 (Iowa Ct. App. 2008) (publication pending), the court affirmed an award of custody to the father after concluding that the mother was inducing seizures in the child and improperly medicating him.
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A motion to dismiss is routinely treated as a motion for summary judgment in cases where the court considers affidavits or other documents outside of the pleadings in ruling upon the motion. Some thorny procedural issues may arise as a result of this conversion. One such procedural question is whether the court's treatment of the motion as one for summary judgment rather than dismissal terminates the plaintiff's right to voluntarily dismiss his complaint. The federal circuit courts are divided on this issue.
Under Fed. R. Civ. P. 41(a)(1), a plaintiff's right to voluntarily dismiss an action without prejudice is limited to the period "before service by the adverse party of an answer or of a motion for summary judgment." Pursuant to Rule 12, however, the court must treat a motion to dismiss for failure to state a claim upon which relief can be granted as a motion for summary judgment under Rule 56 whenever it considers matters outside of the pleadings. The Rules do not specifically address whether the court's treatment of a motion to dismiss as a motion for summary judgment has the effect of terminating the plaintiff's right to voluntarily dismiss his complaint.
Some federal circuit courts have strictly interpreted Rule 41 to hold that the trial court's consideration of affidavits or other documents outside of the pleadings automatically bars the plaintiff from voluntarily dismissing his complaint. See, e.g., Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir. 1991); Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3d Cir. 1987). In contrast, some other federal circuit courts have ruled that a Rule 41(a)(1) voluntary dismissal "is effective immediately and requires no action by the district court." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999). According to these courts, the voluntary dismissal "render[s] the proceedings a nullity and leave[s] the parties as if the action had never been brought." Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996).
Other federal circuit courts have held that the plaintiff's ability to voluntarily dismiss his complaint depends on which pleading was filed first. See, e.g., D.C. Elecs., Inc. v. Narton Corp., 511 F.2d 294, 296 (6th Cir. 1975). In effect, as long as the plaintiff "has not been served with his adversary's answer or motion for summary judgment he need do no more than file a notice of dismissal with the Clerk." Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963).
In Whaley v. Whitaker Bank, Inc., 254 S.W.3d 825, 829 (Ky. Ct. App. 2008), a recent case of first impression in the state, the Kentucky Court of Appeals followed the approach taken by the Fifth and Sixth Circuits. Under Rule 41, the plaintiff has the right to file a motion for voluntary dismissal at any time before the filing of an answer or motion for summary judgment. Based on this language, the court reasoned that a motion to dismiss, "even if later treated as a motion for summary judgment, is not among the pleadings which bars a voluntary dismissal with prejudice." Id. Further, the burden is on the defendant to take the necessary step to file a simple answer. Id. Once the plaintiff files a motion for voluntary dismissal and the defendant does not timely object, "the matter is at an end and the court loses jurisdiction to consider other matters and motions." Id.
In summary, when a motion to dismiss is converted into a motion for summary judgment, it is important for counsel to recognize the impact of this conversion upon each party's procedural rights and obligations. The court's treatment of the motion as one for summary judgment may well act to negate the plaintiff's right to voluntarily dismiss the case under the law of his given state. If the plaintiff does retain the right of voluntary dismissal, it may behoove him to act quickly to preserve this right before the defendant files an answer.
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