          Case: 16-11558   Date Filed: 05/16/2017    Page: 1 of 24


                                                    [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11558
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-00880-VEH



JOSHUA EMERY,

                                              Plaintiff - Appellant,

versus

TALLADEGA COLLEGE,
A Domestic Corporation,
BILLY C. HAWKINS,
JACQUELINE W. PADDIO,
MIGUEL A. BONDS,

                                              Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (May 16, 2017)
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Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

I.    BACKGROUND

      Plaintiff Joshua Emery was a freshman at Defendant Talladega College in

the fall of 2012. Defendants Billy C. Hawkins, Jacqueline W. Paddio, and Miguel

A. Bonds are administrators at Talladega College.

      On October 12, 2012, Plaintiff was walking to meet other students at the

campus chapel. On the way, he walked past three local individuals who were

“looking at [him] kind of strange like he had a problem,” but Plaintiff noticed that

they “had a bottle sitting next to them” so he simply continued on to the chapel.

When Plaintiff got to the chapel, he saw that the other students were all dancing,

but because he did not feel like dancing, he decided to head back to his dorm.

      On the way back, the three local individuals were still sitting there and one

of them was looking at plaintiff like he was mad, so Plaintiff said to him, “What’s

up.” The man responded, “What’s up, what you mean, you want to fight,” but the

two other men with him grabbed him and stopped him. Plaintiff walked off, but

the men began to follow him, so Plaintiff called a friend to come meet him.

Plaintiff’s friends arrived, and he and his friends exchanged heated words with the

three local individuals. One of the local individuals got on the phone, and soon a

black Dodge Charger pulled up. Out of the Charger stepped a man with his hands


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in his pants. The man pulled a bottle out of his pants and put that bottle in his car,

but then took a gun out of his car, flashed it, and put the gun in his pants. Plaintiff

and his friends backed up when they saw this, at which point campus police

officers passed by the scene. Upon seeing the police officers, the local individuals

all jumped into the Charger and drove away.

      The campus police came over to Plaintiff and his friends, and someone in

the group told the police officers what had just happened. Plaintiff and his friends

then went to a convenience store, where they saw another police officer whom

Plaintiff informed what had just happened, what the man in the Charger was

wearing, and where they appeared to have gone. The officer told Plaintiff to go

back to campus.

      As Plaintiff returned to campus with three other classmates, a number of

local individuals came from behind a nearby church and began cursing at Plaintiff

and his classmates, calling them names. Plaintiff and one of his classmates

exchanged their own remarks, and decided to continue on to their dorm—Crawford

Hall. As Plaintiff and his classmates continued toward Crawford, the local

individuals reappeared and followed them. Once inside the dorm, one of the local

individuals who had been following Plaintiff tried to snatch open the door to the

dorm, but another student prevented this. Rather than remain inside, however,

Plaintiff and his classmates decided they should defend themselves. So they


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opened the door from the inside, and Plaintiff and the other students began fighting

the local individuals on the dorm porch and out into the street.

      Talladega College Police Officer Lindsey arrived on the scene and used

mace to break up the fight. The local individuals dispersed, and Officer Lindsay

escorted the students back inside Crawford Hall, instructing them to stay near the

dorm. Isaiah Carter, the dorm manager, kept the students in the dorm for about

five minutes, then told them they were free to go back out onto the dorm porch, if

they wanted. Plaintiff and at least one other individual went out onto the dorm

porch and hung out there for five to ten minutes. While they were out there, an

individual in a hoodie walked by the porch; the individual told Plaintiff “to come

here;” Plaintiff responded, telling the individual “to come here.” The individual

walked off and disappeared. A bit later, Plaintiff heard gunshots, jumped up, ran

back inside, and realized that he had been shot. Because the shots were fired from

a location across the street from the dorm, Plaintiff did not know who the shooter

was nor did he see him.

      Plaintiff sued Defendants alleging that they were negligent under Alabama

law because they failed to protect Plaintiff from this shooting and from criminal

activity in general. After a period of discovery, Defendants filed a motion for

summary judgment. Plaintiff filed two motions for sanctions alleging that

Defendants failed to turn over potentially spoliated evidence. After briefing, the


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district court granted Defendants’ motion for summary judgment and denied

Plaintiff’s sanctions motions as moot. Plaintiff appeals these decisions.

II.   SUMMARY JUDGMENT

      We first address the merits of the district court’s summary judgment ruling

in favor of Defendants. We review de novo a district court’s grant of summary

judgment, viewing all facts and reasonable inferences in the light most favorable to

the nonmoving party. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th

Cir.1999). Summary judgment is appropriate where there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of law.

Id.

      In arguing that Defendants are liable for his injury, Plaintiff first relies on

the Clery Act, which is a federal statute that requires American colleges and

universities to disclose statistics and information relating to crime in and around

their campuses. Under the Act, colleges and universities are required to publish

and distribute annual campus crime reports to students and employees, keep logs of

reported crimes and records of crime statistics, and provide timely warnings to

students and employees of recent crimes that represent a threat to the safety of

students or employees. Plaintiff cites to 20 U.S.C. § 1092(f), which outlines the

various “campus crime statistics and campus security policies” that colleges and




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universities must “prepare, publish, and distribute” to current students, prospective

students, and employees each year.

       The Clery Act, however, expressly states that it does not create a private

cause of action against any college, university, or employee, 1 20 U.S.C.

§ 1092(f)(14)(A)(i). Nevertheless, Plaintiff asserts that the Act creates a duty to

warn and to protect that can be enforced through a state-law negligence action.

Plaintiff seems to be implicitly asserting a negligence per se theory, with the Clery

Act establishing a statutory standard of care, the violation of which would result in

negligence. See Parker Bldg. Servs. Co., Inc. v. Lightsey ex rel. Lightsey, 925

So.2d 927, 930–31 (Ala. 2005) (“The doctrine of negligence per se or negligence

as a matter of law arises from the premise that the legislature may enact a statute

that replaces the common-law standard of the reasonably prudent person with an

absolute, required standard of care. When the legislature adopts such a statute,

anyone who violates it and causes an injury to a person whom the statute was


1
   As the statute states: “Nothing in this subsection may be construed to—(i) create a cause of
action against any institution of higher education or any employee of such an institution for any
civil liability; or (ii) establish any standard of care.” 20 U.S.C. § 1092(f)(14)(A). Courts have
acknowledged that the Act does not a create a private cause of action. See, e.g., Doe v. United
States Dep’t of Health & Human Servs., 85 F. Supp. 3d 1, 10–11 (D.D.C. 2015); Moore v.
Murray State Univ., No. 5:12-CV-00178, 2013 WL 960320, at *3 (W.D. Ky. Mar. 12, 2013);
King v. San Francisco Cmty. Coll. Dist., No. C 10–01979 RS, 2010 WL 3930982, at *4–5
(N.D.Cal. Oct. 6, 2010); Doe v. Univ. of the S., 687 F. Supp. 2d 744, 760 (E.D.Tenn. 2009); see
also Brett A. Sokolow, et al., College and University Liability for Violent Campus Attacks, 34
J.C. & U.L. 319, 344 (2008) (“[T]he Clery Act specifically notes that it cannot give rise to a
private right of action to enforce its terms. . . . The enforcing authority for the Clery Act violation
is the U.S. Department of Education.”).


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intended to protect is liable for negligence per se.”) (citation omitted). But

obviously Plaintiff’s theory has no legs, given the statute’s explicit and

unequivocal disclaimer that nothing in the reporting requirements “may be

construed to . . . (ii) establish any standard of care.”2 20 U.S.C.

§ 1092(f)(14)(A)(ii). In short, although the Clery Act imposes legal obligations on

institutions of higher education, a private plaintiff cannot enforce these obligations

through a negligence action.

       Instead, Plaintiff can succeed on his claim only by showing that Defendants

owed him a duty under Alabama tort law. New Addition Club, Inc. v. Vaughn, 903

So.2d 68, 76 (Ala. 2004) (“A negligence action cannot be maintained without a

showing that the defendant owed the plaintiff a duty.”) “In Alabama, the existence

of a duty is a strictly legal question to be determined by the court.” Bryan v. Ala.

Power Co., 20 So.3d 108, 116 (Ala. 2009) (quotation marks omitted). As such, the

existence or nonexistence of a duty may be properly resolved at the summary

judgment stage. See State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 837–39
2
   Plaintiff has cited no case that applies the Clery Act to create a private cause of action. Havlik
v. Johnson & Wales Univ., 509 F.3d 25 (1st Cir. 2007), which Plaintiff does cite, does not
change the analysis. In Havlik the student-plaintiff sued a university-defendant for defamation,
alleging that the university’s disclosure of an allegedly false crime alert was defamatory. Under
Rhode Island Law, an alleged-defamer has a qualified privilege against liability if the alleged-
defamer reasonably believed that it had a legal duty to publish the allegedly-defamatory
statement. The Havlik court analyzed whether a university-defendant had such a reasonable
belief that it was required to publish the crime alert at issue under the Clery Act. The court
concluded that the university did have such a reasonable belief, thus defeating the plaintiff’s
defamation claim. In short, Havlik has nothing to do with the proper standard of care under
negligence law, and thus nothing to do with this case.


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(Ala. 1999) (observing the conflicting Alabama case law regarding whether the

existence of a duty should be resolved by judge or jury and ultimately holding

“that the existence of a duty is a question of law to be determined by the trial

judge”).

      Plaintiff’s Complaint alleges that “Defendant Talladega College owed a duty

of reasonable care to protect its students from harm, such as that suffered by

Plaintiff Joshua Emery.” Yet, in Alabama “[i]t is well settled that absent a special

relationship or special circumstances, a person has no duty to protect another from

criminal acts of a third person”—such as the shooting at issue in this case. Baptist

Mem’l Hosp. v. Gosa, 686 So.2d 1147, 1149 (Ala. 1996) (emphasis added). So,

the question here is whether a special relationship or special circumstances existed.

      A.     “Special Circumstances”

      Plaintiff first argues that “special circumstances” existed because the history

of crime around Talladega College and the specific interactions between Plaintiff

and the local individuals rendered the later shooting foreseeable. “‘Special

circumstances’ arise when the defendant knew or had reason to know of a

probability of conduct by a third person that would endanger the plaintiff.” Tenn

Tom Bldg. v. Olen, Nicholas & Copeland, P.C., 908 So.2d 230, 233 (Ala. 2005)

(quoting Hail v. Regency Terrace Owners Ass’n, 782 So.2d 1271, 1274 (Ala.

2000)) (quotations and alterations omitted). Under this standard, to impose a duty


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upon a person for the criminal actions of another, (1) “the particular criminal

conduct must have been foreseeable,” (2) “the defendant must have possessed

‘specialized knowledge’ of the criminal activity,” and (3) “the criminal conduct

must have been a probability.” Id. (quoting Carroll v. Shoney’s, Inc., 775 So.2d

753, 756 (Ala. 2000)). Essentially, these factors speak to one central question:

was the plaintiff’s injury sufficiently foreseeable by the defendant premises owner,

such that there was a duty for the defendant to try to prevent the harm. See Hail v.

Regency Terrace Owners Ass’n, 782 So.2d 1271, 1274–76 (Ala. 2000) (“[T]hese

cases present a question of foreseeability. . . . [I]f a criminal attack upon an invitee

by a third person is reasonably foreseeable to the premises owner, the law imposes

on the premises owner a duty to take reasonable precautions to protect against it”)

(citations omitted); Ex parte S. Baldwin Reg’l Med. Ctr., 785 So.2d 368, 370 (Ala.

2000) (“In any case in which a defendant faces liability for the criminal actions of

a third party, the focus is on whether the criminal activity was foreseeable”); Gosa,

686 So.2d at 1150 (“The key here is foreseeability.”) (quotation marks omitted).

      A history of sporadic criminal activity in a given area, however, is not

enough to give a landowner a duty to protect a plaintiff from third party criminal

acts—even if this sporadic criminal activity shows that the specific location is

particularly prone to criminal activity. See Moye v. A.G. Gaston Motels, Inc., 499

So.2d 1368, 1373 n.1 (Ala. 1986) (stating that evidence that one murder and one


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robbery of a guest in a hotel room in the 18 months preceding the homicide of the

plaintiff “would be insufficient as a matter of law to give rise to a duty to protect

[the plaintiff]”); Ortell v. Spencer Companies, Inc., 477 So.2d 299, 300 (Ala. 1985)

(holding that a convenience store owner’s notice of five robberies, one assault with

a weapon, one theft, and one burglary on the premises in a three-year period was

not sufficient to impose a duty to protect an employee from criminal activity);

Henley v. Pizitz Realty Co., 456 So.2d 272, 277 (Ala. 1984) (holding that a parking

garage owner’s notice of one battery upon an owner of a car, six incidents of

breaking and entering of cars, two robberies, and seven thefts over a ten year

period was insufficient to give rise to a duty to protect a customer who was

abducted from the parking deck and raped); see also Saccuzzo v. Krystal Co., 646

So.2d 595, 596–97 (Ala. 1994) (Even though “[i]n the 18 months preceding the

shooting of [plaintiff], the police had been called to [defendant’s] restaurant more

than 160 times,” this “extremely high level of criminal activity at [the restaurant]

. . . could not impute knowledge to [defendant] of the probability of a criminal

attack on [plaintiff].”).

       Plaintiff points, in general terms, to a history of criminal activity on

Talladega College’s campus and prior incidents involving local residents, but as

these cases show, this history of sporadic criminal activity is not enough to bring

this case under the “special circumstances” exception. Plaintiff would need to


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show that Defendants’ campus was so regularly and recurrently dangerous for

individuals like Plaintiff that Defendants “knew or had reason to know of a

probability of conduct by third persons that would endanger the plaintiff.”

Saccuzzo, 646 So.2d at 596–97 (quotation marks omitted). Plaintiff has not made

such a showing here.

      Plaintiff also argues, however, that the specific events involving Plaintiff in

the few hours leading up to the shooting made the later shooting foreseeable, such

that Defendants acquired a duty of care to Plaintiff. Plaintiff first argues that

Defendant could have foreseen him being shot because he had already been

“assaulted” by local residents twice before (on his way back from the chapel and

during the fight with the local individuals), and thus a third “assault” (the shooting)

should have been expected. Plaintiff is correct that “a common factor” used by

Alabama courts to determine “if a particular act is in fact foreseeable is the prior

criminal incidents occurring at the premises and which the premises owner was

aware of or should have been aware of.” Gosa, 686 So.2d at 1150 (quoting Moye,

499 So.2d at 1370); see also Hail, 782 So.2d at 1274 (“[W]hile prior incidents of

criminal conduct can indicate the premises owner or manager had notice that

someone on the premises could be harmed by the criminal act of a third person,

proof of prior criminal acts does not conclusively establish such notice”).

However, Plaintiff’s reliance on the specific criminal classification of the conduct


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at issue—“assault”—is misplaced. Essentially, Plaintiff argues that (1) the district

court should have accepted his legal classification of the incidents between

Plaintiff and the local residents and (2) if a series of incidents falls under the

umbrella of the same general criminal definition, further incidents falling under

that same criminal definition are foreseeable.

      The foreseeability of a given act, however, does not revolve around that

act’s legal classification, but the facts surrounding the act. “The number and

frequency of prior criminal acts at the place where the injury occurred are used in

determining whether a particular criminal act was reasonably foreseeable” because

such records can serve as “objective, verifiable criteria,” Gosa, 686 So.2d at 1152

(quotation marks omitted), but the mere presence of similarly classified crimes

certainly does not make all future crimes falling into the same criminal category

necessarily “foreseeable.” It is the “particular criminal conduct,” that must be

foreseeable, see id. at 1150; a pattern of unrelated but similarly classified crimes

does not meet this showing.

      Further, this is not a situation where the University “was given actual,

express, and specific notice that a specific person might attempt to commit a

criminal act against another specific person.” Gosa, 686 So.2d at 1151 (describing

Thetford v. City of Clanton, 605 So.2d 835 (Ala. 1992)). In Thetford, the plaintiff

checked into a hotel to get away from her abusive husband, registered for the room


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under an assumed name, and specifically told the hotel employees not to tell her

husband that she was staying there. 605 So.2d at 836–37. However, when her

husband later arrived at the hotel, the hotel employee cut the chain locking

plaintiff’s room and allowed the plaintiff’s husband access to her room; the

husband took the plaintiff from the hotel and murdered her. Id. at 837. This

“actual, express, and specific notice” of foreseeable criminal activity was enough

to show “special circumstances” creating a duty of care to protect the plaintiff.

Gosa, 686 So.2d at 1151 (describing Thetford, 605 So.2d at 835).

      However, no such explicit notice is presented in this case. Though Plaintiff

was involved in two previous altercations with local individuals (one verbal and

the other a physical fist fight) prior to the shooting, the university never received

any specific, actual notice that a shooting was imminent. See Nail v. Jefferson Cty.

Truck Growers Ass’n, Inc., 542 So.2d 1208, 1211 (Ala. 1988) (holding that special

circumstanced were present because defendant was aware that for several weeks

hostility had grown between two tenants at a farmers’ market and defendant had

received two specific warnings that an outbreak of violence was imminent), cited

in Finley v. Patterson, 705 So.2d 826, 829 (Ala. 1997). Indeed, the University did

not have express notice that any subsequent criminal activity was imminent after

Officer Lindsey intervened, broke up the brawl outside of the dorm, and dispersed

the local hooligans. Officer Lindsey went off to pursue the local individuals


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involved in the brawl, which seems to have been a wise proactive measure, and no

doubt was hoping to deter further criminal activity. No University official had any

kind of particularized or specific notice that a shooting would later occur.

      Plaintiff argues that, even absent express notice, the combination of prior

interactions between Plaintiff and the local individuals on the day of the shooting

should have rendered the eventual shooting a foreseeable probability, sufficient to

impose a duty upon Defendant. However, Alabama Supreme Court precedent

makes clear “that the particular criminal activity, not just any criminal activity,

must be foreseeable.” New Addition Club, Inc., 903 So.2d at 75 (emphasis in

original). For sure, Plaintiff was followed home by a group of local individuals,

after which he and his classmates left the safety of their dorm to fight these

individuals, but there is no evidence that guns or other weapons were used during

this fight. Thereafter, Officer Lindsey intervened to break up the fight and

dispersed the local individuals. On these facts, Plaintiff has not shown that the

University should have foreseen the subsequent shooting of Plaintiff, that this

shooting was a “probability,” and that Defendants therefore had a duty to prevent

it.

      Several cases elucidate the strictness with which Alabama law examines the

existences of special circumstances. In Carroll v. Shoney’s, Inc., the Alabama

Supreme Court explained how prior recent threats and beatings did not render a


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premise-owner liable for a later shooting “because that particular criminal conduct

was not foreseeable.” New Addition Club, Inc., 903 So.2d at 73 (describing

Carroll, 775 So.2d at 756–57). The plaintiff in Carroll had been beaten, choked,

and threatened by her husband one night, and the next day at work, informed her

restaurant employer of these incidents and asked that her employer telephone the

police if her husband appeared at the restaurant that evening. Carroll, 775 So.2d at

754. Around 10:00 that night, the plaintiff’s husband did appear at the restaurant,

pushed his way into the back of the restaurant where plaintiff was working and

yelled that he was going to “get her”; Plaintiff’s employer called the police and

police escorted the husband from the property. Id. Plaintiff, however, was scared

to return home, so her co-workers put her up in a motel for the night. Id. The next

day, plaintiff called her employer and said that she was afraid to return to work, but

her employer told her that she should come into work anyway. Id at 754–55.

While plaintiff was at work, her husband came to the restaurant, pulled out a pistol,

and shot plaintiff in the back of the head, killing her. Id. Notwithstanding the

recent violence between the plaintiff and her husband at this same location, the

Alabama Supreme Court held that, since “[t]he particular criminal conduct in this

case was a murder” the employer could not be liable for the criminal acts of the

husband because there was no way that “[the employer] should have reasonably




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foreseen that [the husband] would enter the Captain D’s restaurant and murder his

wife.” Id. at 757.

      Likewise, in New Addition Club, Inc. v. Vaughn, plaintiff was in a nightclub

where two other patrons got into an argument on the dance floor. 903 So.2d 68, 69

(Ala. 2004). As the argument escalated, the two arguing patrons stepped outside

the nightclub with a crowd of other patrons in tow. Id. One patron, Crenshaw,

attacked another patron, and soon others intervened. After the fight was stopped,

Crenshaw went to his car, got a gun, and fired it, killing plaintiff. Id. Plaintiff’s

representative introduced evidence that “there had been prior incidents at the New

Addition Club involving patrons fighting; there had in fact been one shooting on

the premises; Crenshaw had once driven his car up to the door of the club and ‘got

out and pulled a shotgun,’ resulting in Crenshaw’s being banned from the

club; Crenshaw had once punched his girlfriend while they were in the parking lot

of the club; and [the nightclub’s owner] agreed that he knew Crenshaw was ‘hot

tempered.’” Id. at 75 (internal footnotes omitted). The Alabama Supreme Court

recognized that “in order to prove that the Club owed Mary Vaughn a duty to

protect her from the actions of Crenshaw, the Vaughns must show: (1) that it was

foreseeable that Crenshaw would shoot and kill Mary, (2) that the Club had

specialized knowledge that a killing of this type could occur, and (3) that the

killing was a probability.” Id. (internal footnotes omitted). In spite of the


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escalating fight, Crenshaw’s previous incidents, and the prior instances of violence,

the court held that it was not foreseeable that Crenshaw would kill Mary Vaughn

(or that the killing was a probability). Id. at 75–76 (“[N]othing suggests that the

Club knew, or had reason to know, that Crenshaw would kill Mary. The

‘particular criminal activity not just any criminal activity,’ must be foreseeable”)

(quoting Ex parte S. Baldwin Reg’l Med. Ctr., 785 So.2d at 370).

      Finally, in Baptist Mem’l Hosp. v. Gosa, the Alabama Supreme Court

applied the same “particular criminal activity” consideration to a series of criminal

incidents over a longer period of time. 686 So.2d 1147 (Ala. 1996). The plaintiff

was shot in defendant’s parking lot as she was leaving work, and presented

evidence that there were fifty-seven reported criminal incidents around the parking

lot in the previous five years. Id. at 1152. The court noted, however, that

“approximately 48 of those incidents involved either thefts of a vehicle or thefts

from a vehicle in which the suspect was never seen and in which the suspect never

assaulted or threatened the owner or driver of the vehicle. Of the remaining nine

incidents, six—including the incident in this case—involved a physical touching.

Of those six crimes, only one crime—the crime in this case—involved a gun.” Id.

In light of this distinction, the court concluded that plaintiff’s shooting “could not

be considered reasonably foreseeable.” Id. at 1153.




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      The lesson from these cases is, as stated above, “that the particular criminal

activity, not just any criminal activity, must be foreseeable.” New Addition Club,

Inc., 903 So.2d at 75 (emphasis in original). Further, the temporal proximity of the

present events—all occurring within an hour or two—does not necessarily render

the later shooting foreseeable, either. See Carroll, supra.

      Finally, it is difficult to infer that the shooting of Plaintiff was foreseeable to

Defendants when it obviously was not foreseeable to Plaintiff, who was much

better acquainted with any risks than were Defendants, and who was in a position

to avoid those risks. Specifically, when Plaintiff took it on himself to leave his

dorm and fight the locals, he obviously wasn’t worried about being shot.

Likewise, after the fracas was broken up by the police, Plaintiff was again

apparently unconcerned, as he chose to return to the dorm porch, where he was

later shot. In all, Plaintiff has not shown that the shooting was foreseeable to

Defendants or was probable, as required to create “special circumstances”

imposing a duty on the Defendants. See Carroll, 775 So.2d at 758 n.2 (“[T]his

Court stated that it has consistently and vigorously affirmed summary judgments in

favor of the defendant premises owner/employer on the issue of whether the

defendant was negligent in failing to protect its invitee/employee from such

crimes.” (internal quotations omitted)); Hail, 782 So.2d at 1274–75 (“This Court

has rarely held that the danger to an invitee posed by the potential criminal act of a


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third person was so imminent that the premises owner should have foreseen the

eventual consequence.”); Finley v. Patterson, 705 So.2d 826, 829 (Ala. 1997) (“In

the overwhelming majority of cases presenting the question, we have not found

special circumstances that give rise to a duty to protect.”).

      B.     Special Relationship

      Plaintiff’s next contention is that by ordering the students to go inside

Crawford Hall after the fight, but then allowing them to return to the porch five

minutes later, Defendant Talladega’s dorm manager created a “special

relationship” that triggered a duty by Defendants to protect the students from the

later criminal act of the shooter. The Alabama Supreme Court has not specifically

delineated the contours of the “special relationship” exception, but it has

recognized that a special relationship arises when a person is “uniquely dependent

upon the [defendant] for protection.” Saccuzzo, 646 So.2d at 597 (citing Young v.

Huntsville Hosp., 595 So.2d 1386 (Ala. 1992)). However, the court has only

applied this exception in the rare case where the plaintiff is wholly at the mercy of

the defendant to keep him safe from harm. Compare Young, 595 So.2d 1386

(recognizing a special relationship between a hospital and a heavily sedated patient

after the patient was sexually assaulted by a person who had been seen wandering

around the hospital on previous occasions); Thetford, 605 So.2d 835 (highlighting

a special relationship between an inn-keeper and a guest who checked into a hotel


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room to get away from her abusive husband and specifically told the hotel

employees not to tell her husband she was staying there, after the hotel employee

cut the chain to the guest’s room and allowed the husband into the room), 3 with Ex

parte S. Baldwin Reg’l Med. Ctr., 785 So.2d 368, 369 (Ala. 2000) (holding that no

special relationship existed where the six-year-old plaintiff was sexually molested

by a nurse at defendant’s hospital because, even though none of the family

members immediately witnessed the improper touching, several family members

were in the room with the nurse and the plaintiff at the time of the molestation);

Hargrove v. Tree of Life Christian Day Care Ctr., 699 So.2d 1242, 1244 (Ala.

1997) (holding that no special relationship existed where the plaintiff’s one-month-

old daughter was kidnapped from a church day-care program); 4 Habich v. Crown

Cent. Petroleum Corp., 642 So.2d 699, 700 (Ala. 1994) (holding that no special


3
  As noted above, Thetford actually based its holding on the “special circumstances” exception
rather than the “special relationship” exception. However, subsequent Alabama Supreme Court
cases have recognized Thetford as an example of the “special relationship” exception as well.
See Saccuzzo, 646 So.2d at 597 (“[In Thetford t]his Court reversed, holding that ‘special
circumstances’ in that case made the summary judgment inappropriate. Although the Court did
not specifically say so, the innkeeper-guest relationship in Thetford also comes within the
‘special relationship’ exception to the general no liability rule.”).
4
  Similarly to the way Thetford has been expanded to the “special relationship” realm, in
Hargrove the Alabama Supreme Court relied upon a prior precedent that was not explicitly a
“special relationship case.” Specifically, Hargrove relied upon N.J. v. Greater Emanuel Temple
Holiness Church, 611 So.2d 1036 (Ala. 1992), in which plaintiff, a minor child who was in a
church day care program, was raped on the church premises by her second cousin who lived on
the church premises. Hargrove concluded,“[i]mplied in the holding of that case is that there
were no special circumstances or special relationships that would give rise to a duty on the
church’s part to take additional steps to protect [the N.J. plaintiff]. This present case is
materially indistinguishable from N J.”
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relationship existed where plaintiff worked an early morning shift at a 24-hour

convenience store alone, and was not allowed to lock the door while she restocked

the shelves); Saccuzzo, 646 So.2d at 596 (holding that no special relationship was

created by the fact that, “[i]n the 18 months preceding the shooting of [plaintiff],

the police had been called to the [location of the shooting] more than 160 times.”).

      Unlike the plaintiffs in Thetford and Young, Plaintiff in this case was not

“completely dependent upon the defendants for protection.” Finley, 705 So.2d at

828. Plaintiff was told that he could go out to the Crawford Hall porch after about

five minutes inside Crawford Hall, but he was not required to do so. Plaintiff

could have gone up to his room, stayed in the lobby of Crawford, or even tried to

leave the building. He was neither incapacitated, helpless, nor completely

dependent upon Defendant’s intervention or protection to prevent the harm here.

This case therefore does not fall into the narrow “special relationship” exception

recognized by the Alabama Supreme Court.

      C.     General Duty of Safety under Collins

      Finally, plaintiff posits that the Alabama Supreme Court’s decision in

Collins v. Scenic Homes, Inc., 38 So.3d 28 (Ala. 2009) supports his claim that

Defendants breached a duty to keep the college safe from criminal activity,




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generally. 5 In Collins, an arsonist started a fire in an apartment complex that

injured plaintiff. The defendant landlord relied on the body of case law limiting

tort liability for third-party criminal acts (as discussed above), but the court

distinguished these cases based on the defendant’s independent “duty to construct

and . . . a duty to operate a reasonably safe apartment building, equipped with

appropriate exits and fire-suppression safeguards designed to reduce the risk of

injury as a result of a fire, regardless of the origin of the fire.” Id. at 33. This duty

was drawn from a premise-owner’s general “duty to reasonably guard against the

risk of fire.” Id. (citing Mozer v. Semenza, 177 So.2d 880, 883 (Fla. Dist. Ct. App.

1965)). Thus, given this duty, the apartment-builder and apartment-owner

defendants had a duty to mitigate the risk of fire damage, whether that risk

emanated from the possibility of a criminal act by an arsonist or from a less

nefarious cause.

       Plaintiff argues that, in the same way, Defendants here had a general duty to

keep the university free from criminal activity, regardless of whether a plaintiff has

shown special circumstances or a special relationship, as set out above. But

Collins does not identify any such duty for colleges and universities, above and


5
  According to Plaintiff, these claims allege “breaches of duty related to Talladega College’s
general failure to keep the campus safe; failing to appropriately respond to earlier incidents;
failure to follow emergency procedures; failing to provide adequate security; failure to provide
adequate safety and communication equipment, including working patrol radios and warning
systems; failure to properly maintain emergency equipment; and failure to report prior instances
of criminal conduct.”
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beyond what any landlord owes its tenants, and Plaintiff has offered no legal

support for this assertion.

III.   MOTIONS FOR SANCTIONS

       Plaintiff also asks this court to reverse the District Court’s denial of his two

motions for sanctions on mootness grounds following the dismissal of Plaintiff’s

claims. “We review the district court’s decision regarding spoliation sanctions for

abuse of discretion.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 943 (11th

Cir. 2005).

       Of course, “an appellate court does not have jurisdiction under the Article III

‘case or controversy’ provision of the United States Constitution to decide

questions which have become moot by reason of intervening events.” C & C

Products, Inc. v. Messick, 700 F.2d 635, 636 (11th Cir. 1983). Thus, to the extent

that Plaintiff’s motion for sanctions sought some kind of discovery order or trial-

related sanctions, the dismissal of Plaintiff’s case (pursuant to Defendant’s

summary judgment motion) renders these motions moot.

       Plaintiff seems to assert that the district court erred in ruling on the summary

judgment motion prior to ruling on the spoliation/sanctions motions because

Plaintiff’s success on the sanctions motion could have affected Plaintiff’s ability to

survive summary judgment. Plaintiff, however, has not fleshed out this argument

before us and instead requests that we look at the original motions filed with the


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district court to “understand the impact” of the non-disclosure on his case. “We

have long held that an appellant abandons a claim when he either makes only

passing references to it or raises it in a perfunctory manner without supporting

arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,

681 (11th Cir. 2014).

      At any rate, we disagree that the requested evidence would have altered the

district court’s or our decision that Defendants’ motion for summary judgment

should have been granted.

IV.   CONCLUSION

      We AFFIRM the district court’s order granting summary judgment for

Defendants and denying Plaintiff’s motions for sanctions as moot.




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