Statute of Limitations for Negligence Claims

D.H. by and through R.H. v. Adept Community Services, Inc., 2017 WL 1277741 (Fla. 2nd DCA)

The Second District Court of Appeal (Second DCA) affirmed summary judgment in a negligence case filed by grandparents on behalf of their previously dependent children holding the trial court correctly found the case was initiated outside the statute of limitations.  The plaintiff had argued the suit was timely because the statute of limitations was tolled due to D.H.’s minority. The Second DCA rejected that argument, holding in part, the statute of limitations was not tolled because the children had a guardian ad litem (GAL) appointed in the dependency proceedings.  However, Chief Judge Villanti, concurring specially, made it clear the GAL is only appointed in dependency proceedings to represent the best interests of the child in the dependency case and the mere question as to whether the GAL was authorized to file a civil action for negligence on behalf of the child should have precluded entry of summary judgment.  Because this argument was not raised by the plaintiff in the trial court or on appeal, summary judgment was affirmed.

The children’s injuries that formed the basis of the negligence action also provided the basis for the children’s dependency case.  As a result of the dependency case the children were ultimately placed with their grandparents in a permanent guardianship. A developmental assessment revealed developmental delays and anxiety problems caused by Mother’s abuse and neglect. Three and a half years after entry of the permanent guardianship, the grandparents filed a claim of negligence against the Defendants claiming they knew the Mother required 24 hour assistance to safely care for the children but allowed her to be alone with them. The Mother’s lack of appropriate care caused the physical, mental and emotional injuries to the children. The grandparents filed a lawsuit on behalf of the children alleging negligence by the mother’s service providers, Adept Community Services Inc. and B.E.A.R.R., Inc. (Defendants). The Defendants’ motion for summary judgment was granted because the lawsuit was initiated outside the four year statute of limitations and the grandparents appealed.

The Second DCA examined two questions to determine whether the suit was timely:  1) whether the claims accrued more than four years before the complaint was filed, and 2) if they accrued earlier, whether the limitation period was tolled.  Pursuant to Florida Statute § 95.031(1) a “cause of action accrues when the last element constituting the cause of action occurs.” The parties disputed when the grandparents acquired the authority to sue on the twins’ behalf and when they “knew or should have known” of the invasion of the twins’ legal rights.  The Second DCA, citing to David v. Monahan, 832 So. 3d 708 (Fla. 2002), held the delayed discovery doctrine, which encapsulates the “knew or should have known” rule, is applicable only to professional or medical negligence or intentional torts based on abuse or child sexual abuse.  The children’s claims were only of general negligence.  Based on a plain reading of the statue the children’s cause of action accrued when the last injury to the children occurred. The court held the action was outside of the statute of limitations as the last injury to the children occurred more than four years before the suit was filed.  The only remaining question was whether the statute was tolled at any point.

The grandparents argued that the limitations period was tolled under Florida Statute §95.051(1)(h), which provides for tolling during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue.  The Court held the requirements of the subsection were not met because the twins had a GAL appointed when they were removed from their mother.  The opinion notes that no one asserted the GAL either had an adverse interest to the children or were incapacitated to sue on behalf of the children. Chief Judge Villanti’s concurring opinion correctly points out the GAL is appointed in this instance to represent the children’s best interests “in the dependency proceedings” and that it is questionable as to whether the GAL even has the ability to sue on behalf of the children.  This fact was first discussed by the United States District Court, Middle District of Florida in “John J.” v. Adams, 2002 WL 31986855 (M.D. Fla.), Nov. 27, 2002.  In “John J.” the court held the GAL “was appointed as Plaintiff’s guardian ad litem for a pending dependency action. As an agent of the State of Florida, [the GAL] did not have the discretion to act independently of the State of Florida Guardian ad Litem program.  [The GAL] was prohibited by the Guardian ad Litem program from getting involved with civil proceedings for damages on behalf of Plaintiff.”  Florida’s General Appropriation Act only allows the Guardian ad Litem Program to represent children in dependency proceedings.  As such, the GAL does not have the capacity to file law suits on behalf of the children it represents.

PRACTICE TIP: GAL’s associated with the Guardian ad Litem Program in dependency matters do not have the capacity to file lawsuits on behalf of children in Florida. Therefore, appointment of the GAL Program in dependency proceedings will not prevent tolling of the statute of limitation pursuant to 95.051(1)(h).