A woman who knew her husband was an admitted pedophile had no duty to warn children invited into her home that her husband may pose a threat to their safety, a divided South Carolina Court of Appeals ruled recently.
In Roe v. Bibby, a case of first impression, the parents of three minors who alleged that they were the victims of abuse or attempted abuse filed a lawsuit against Daniel Bibby Sr. and Michelle Bibby. The suit accused Daniel of inappropriately touching their children and Michelle of failing to tell them that he once admitted to molesting his daughter.
In making her case, “Jane Roe,” the parent and legal guardian of Judy, James and Joyce argued that the circuit court erred when it granted Michelle Bibby summary judgment, claiming that she had a duty to warn under the special relationship exception and a premises liability theory.
According to court documents, the Bibbys were married in 1969. In 1995, their 16-year-old daughter revealed that her father sexually assaulted her when she was younger. Confronted by his wife, records show, Bibby confessed. The Department of Social Services removed him from the home, and he was placed in counseling. Eventually, he was allowed to return. No criminal charges were filed against him.
In 2008, the Roes moved in across the street from the Bibbys. Their children became friends with the Bibby grandchildren, who lived in the home. According to court records, the children played together and visited each other’s homes.
Michelle Bibby worked during the day. She never told the Roes about her husband’s prior acts, and Jane said she never suspected it was unsafe to let her children play with the neighbors’ kids.
Within a year of the Roes moving in, Daniel Bibby told a counselor that he had been molesting his granddaughter. He was convicted of molesting his granddaughter in 2010.
In their suit, the Roes alleged that Bibby had also touched Joyce and Judy and threatened to kill them if they told anyone and that James watched one of his sisters being abused. Bibby denied touching the Roe children and no charges were filed against him in relation to the allegation.
In 2010, the Roes filed suit against Daniel Bibby, alleging assault, battery, false imprisonment and intentional infliction of emotional distress. They accused Michelle of negligence and wrongful infliction of emotional distress.
Aware that the issue of whether a spouse has a duty to warn visitors of his or her spouse’s prior sexual abuse was a novel one in South Carolina — and that there is generally no duty for one to control the conduct of another or warn a third party of potential danger— the Roes contended that this case fell under the “special relationship” exception.
That exception applies when one has “the ability to monitor, supervise and control an individual’s conduct” when there is a “specific threat of harm directed at a specific individual.”
The courts found that Michelle Bibby had no special relationship with the Roe children because she lacked the ability to monitor, supervise and control her husband and had no knowledge of a specific threat.
The appellants argued that Daniel Bibby’s prior act was evidence of a specific threat. The Roes also alleged that Daniel’s adult son, who lived in the home, told police he saw his father watching child pornography, which constituted a specific threat.
But Judge James Lockemy, writing for the court and quoting 1996′s Gilmer v. Martin, wrote, “[I]t is not simply foreseeability of the victim which gives rise to a person’s liability for failure to warn; rather, it is the person’s awareness of a distinct, specific, overt threat of harm which the individual makes towards a particular victim.”
“There is no evidence Mr. Bibby made a distinct, specific, and overt threat of harm towards the minor Appellants,” Lockemy wrote.
The Roes also argued that the Bibbys were liable under a premises liability theory. The courts disagreed.
The minors here were classified as licensees and as such, the Bibbys would owe them the duty to use reasonable care to warn them of “any concealed dangerous conditions or activities.”
Whether that duty includes warning a licensee of a criminal act committed by a third-party is also a novel issue, and the Roes argued that Daniel Bibby’s past actions increased the likelihood of conduct dangerous to the minors’ safety. Noting that no prior South Carolina cases recognize a duty to warn licensees of prior criminal acts of a third-party resident, the court again disagreed.
Further, the court noted that the state no longer believed Daniel Bibby to be a continuing danger and no evidence was presented to show that Michelle Bibby knew her husband was dangerous. In fact, she testified that she believed the Roe children were falsely accusing Daniel. She also testified that she believed Daniel was “cured” after his treatment in 1995, although she placed a lock on her daughter’s bedroom door and hid the key from Daniel.
In a separate opinion, Judge H. Bruce Williams dissented, stating that he believes the matter should be decided by a jury.
The time lapse alone since Daniel Bibby’s molestation of his daughter should not necessarily mean that Michelle didn’t know of her husband’s “sexually deviant proclivities,” Williams wrote, especially given that she took the precautionary step of locking the girl’s bedroom door.
Williams further noted that while he is not suggesting a homeowner could be liable for failing to warn licensees of the criminal history of “any person who happens upon the homeowner’s premises,” he believes that “…as children of tender years, I would hold that Respondent owed a heightened duty of care to minor.”
Attorney Eugene “Rick” Corrigan of Corrigan & Chandler in Charleston represented Michelle Bibby and said in an email, “We are pleased with the ruling of the Court of Appeals, which is well-grounded in South Carolina law.”
Roe attorney Eric Poulin of the Anastopoulo Law Firm in North Charleston deferred comment until the case is resolved but said that he has filed a petition for rehearing.
The 12-page decision is Roe v. Bibby (Lawyers Weekly No. 011-112-14). The full text of the opinion is available online at sclawyersweekly.com.