Truog v. Mid-America Apartment Cmtys., Inc.

358 F. Supp. 3d 1332
CourtDistrict Court, M.D. Florida
DecidedFebruary 12, 2019
DocketCase No. 6:17-cv-2088-Orl-37KRS
StatusPublished
Cited by2 cases

This text of 358 F. Supp. 3d 1332 (Truog v. Mid-America Apartment Cmtys., Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Truog v. Mid-America Apartment Cmtys., Inc., 358 F. Supp. 3d 1332 (M.D. Fla. 2019).

Opinion

ROY B. DALTON JR., United States District Judge

This case concerns horrific facts: the sexual assault of an eight-year-old boy by his fourteen-year-old male babysitter. (Doc. 2, ¶¶ 12, 15, 20; Doc. 53-2, p. 49:6-10.) Defendant Mid-America Apartment Communities, Inc. ("MAA ") operates the apartment complex where the assault took place and where both minors resided with their families. (Doc. 2, ¶¶ 9, 11-20.) Plaintiffs are the victim's parents. (Id. ¶ 12.) At issue is whether MAA, as Plaintiffs' landlord, can be held liable for the assault because it knew that the babysitter sexually assaulted another minor tenant on the premises six months before and did nothing in response. (Id. ¶¶ 16-19, 31-37.) MAA moves for summary judgment against Plaintiffs, contending no duty to warn arose from the prior assault; and that even if a duty existed, Plaintiffs cannot establish causation. (Doc. 53, pp. 10-18 ("Motion ").) Plaintiffs maintain that MAA had a duty to protect Plaintiffs from reasonably foreseeable criminal activity and disputed material facts remain that render summary judgment inappropriate. (Doc. 56, pp. 7-16.) On review, the Court finds that the Motion cannot be granted on this record, so the matter will proceed to trial.

I. BACKGROUND 1

Plaintiffs Corbet and Kimberly Truog have been married since August 12, 2006. (Doc. 56-1, p. 7:19-25.) They have one son, B.T., born in 2007. (Id. at 8:1-15.) In late 2013, Plaintiffs moved to Lake Mary, Florida - it was more convenient for Mr. Truog's commute to work and had a reputation of being very safe and great for families. (Doc. 53-1, p. 12:15-23.) They toured apartment complexes and one stood out: Colonial Grand at Heathrow ("Colonial Grand "). (Id. at 12:24-13:1.) As Mrs. Truog put it, "it had a very homey nature." ( *1334Id. ) When taking a tour, they noticed children outside, which "seemed better for B.T. to have friends as opposed other communities that [they] looked at that didn't look as kid-friendly." (Id. at 13:1-6.) So they signed a lease at Colonial Grand on November 8, 2013 and moved in shortly after. (Id. at 15:1-14.)

As a community, Colonial Grand had a lot of children who would play together in the common areas and ride the bus to school - over thirty. (Id. at 15:15-22; Doc. 56-1, p. 21:11-16.) Through these encounters, B.T. met A.O., his eventual assailant. (Doc. 56-1, pp. 21:20-22:1; Doc. 53-1, p. 15:15-25.) B.T. was around five or six at the time; A.O. was maybe twelve. (Doc. 56-1, pp. 22:2-4, 20-22.) Despite the age difference, they played together, growing "fond of one another" (Doc. 53-1, p. 16:7-19.) According to Mrs. Truog, A.O. was "very respectful," leading her to be "really impressed by [his] behavior" and "how pleasant he was." (Id. at 16:8, 18:24-19:9.) All in all, the Truogs "just thought he was a normal kid." (Doc. 56-1, p. 23:23-24.)

After A.O. got to know B.T., he asked Mrs. Truog if he could babysit B.T. (Doc. 53-1, p. 21:8-13.) She said no, based on his young age, but he kept asking her at least once a month for about a year to a year and a half. (Id. at 21:15-22:9; Doc. 56-1, p. 26:3-12.) Then, she relented. (Doc. 53-1, p. 22:10-17.) A.O. was fourteen; B.T. was eight. (Doc. 53-2, p. 25:5-13; 53-3, p. 20:16-17.) At that point, Mrs. Truog:

had never seen anything from him that would make [her] feel that [her] son would be in danger. And so [she] thought, Kim, why are you giving him such a hard time, you know. He's definitely of age to be able to babysit. It's just one child; it's not multiple children, you've known him for ... a long time. Met his dad, you know, his sister, been neighbors for a long time, and he's always been very respectful and responsible.

(Id. at 32:7-17.) So she suggested to her husband they "just go out for a brief evening alone, and that [A.O.] can earn some money." (Id. at 32:18-22.) They settled on dinner and a movie, close by if anything came up, the evening of January 23, 2016. (Id. at 32:23-33:4; Doc. 56-1, pp. 25:23-26:1.) Mrs. Truog made sure A.O. had his cell phone with him when he arrived, left a number for A.O. to reach her, and got pizza for the boys. (Doc. 53-1, pp. 33:8-20.) They left and heard nothing from A.O. until Mrs. Truog checked in after the movie. (Id. at 36:24-37:1, 39:11-13.) She texted him at 10:48 p.m. to say the movie was over and ask how everything was going. (Id. at 38:7-8.) He wrote back immediately, "Good." (Id. at 38:9.) The Truogs arrived home shortly after. (Id. at 38:24-25.)

On arriving home, Mrs. Truog found B.T. in his room. (Id. at 40:24-41:10.) His face was red, and she could tell he had been crying. (Id. at 41:10.) A.O. was in the bathroom, either showering or having just showered. (Id. at 41:2-6.) Immediately, Mrs. Truog knew something was off. (Id. at 41:6.) She and her husband asked B.T. what happened, but he "seemed very hesitant to disclose what transpired because A.O. was still there." (Id. at 41:12-15.) A.O. then came out of the bathroom, and the Truogs asked him what happened. (Id. at 41:11-12.) A.O "was very nervous," "shaking," and "knocked over" a liter of soda. (Id. at 41:23-25.) They all began cleaning up the mess with towels, but Mrs. Truog sent A.O. home so they could talk to B.T. - at that point, the "hair on the back of [her] neck was standing up, like something [was] really wrong." (Id. at 42:3-8.) She paid A.O., and he left. (Id. at 42:4.)

Mrs. Truog then immediately asked B.T. what happened. (Doc. 56-1, p. 34:10-19.) He told them: while he was taking a shower, *1335A.O. got in. (Id. at 34:20-21.) B.T. told A.O to get out. (Id. at 34:22.) A.O. got out; they got dressed and played a game of basketball in B.T.'s room - on A.O.'s suggestion, if someone missed a shot, he had to take off a piece of clothing. (Id. at 34:22-25.) "So they ended up naked again together." (Id. at 35:2.) From there, A.O. performed oral sex on B.T. and made B.T. reciprocate. (Id. at 35:15-18.) A.O. then attempted anal sex on B.T. (Id. at 35:19-36:5.) B.T. vomited in his room and cried. (Id. at 36:6-12.) A.O. told B.T. that if he told anyone, A.O. would punch him in the face. (Doc. 53-1, pp. 42:20-43:3.)

On hearing this, Mrs. Truog texted A.O. at 11:09 p.m., "B.T. said you took a shower here." (Id. at 38:24-25.) He responded at 11:11 p.m., "Yeah, I just had to rinse the gel out of my hair. It was making me itch." (Id. at 39:3-5.) At 11:12 p.m. he said, "Thanks for having me over." (Id. at 39:5-6.) Mr. Truog then called A.O. and asked him to come back to their apartment. (Id. at 43:11-44:2.) A.O. said, "Okay" and came back within minutes. (Id. at 44:4-6.) Mrs. Truog told A.O. that B.T. told her what "physically had transpired" and that she would take B.T. to the hospital "to check to see if something like that transpired." (Id. at 44:5-13.) She asked A.O. if the hospital would find anything, and he responded, "They might." (Id. ) So initially "he denied it," but then "he admitted to what he had done" - "he agreed there was oral and attempted anal." (Doc. 56-1, p. 40:2-3, 10-13.)

Mr. Truog called 9-1-1. (Id.

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Bluebook (online)
358 F. Supp. 3d 1332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truog-v-mid-america-apartment-cmtys-inc-flmd-2019.