In what may be a first in Florida, a bank can be held liable for the failure to stop elder abuse arising from the draining of a senior’s bank account by an abuser.
In Ginder V. Bank of America, 2015 U.S. Dist. LEXIS 25562 (M.D. Fla. 2015), Mrs. Ginder, an 81 year old woman, deposited her life savings into various Bank of America accounts. Just prior to the exploitation described in the lawsuit, the account values were approximately $175,000. The alleged exploiter, Mr. Knight, portrayed himself as an employee of Bank of America and caused Mrs. Ginder to write checks and transfer funds to other people.
Mrs. Ginder alleged that Bank of America had opened suspicious activity reports on the accounts, but failed to notify her or to stop the activity. Mrs. Ginder also alleged that her daughter had also been in contact with the bank and had warned them of the activity.
To that end, Plaintiff attempts to establish a duty by showing that BOA violated Florida’s Adult Protective Services Act (the “Act”). In relevant part, the Act requires any bank “who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being . . . exploited” to report such exploitation to the Florida Department of Children and Families. The Act defines “vulnerable adult” to include any person over eighteen years of age who is unable to perform everyday activities due to “the infirmities of aging.” Id. The Florida Legislature has illuminated that a primary purpose of the Act’s mandatory reporting requirement is to “cause the protective services of the state to be brought to bear in an effort to prevent further . . . exploitation of vulnerable adults.”
BOA does not dispute that Plaintiff is a vulnerable adult within the meaning of the Act or that BOA failed to report that it suspected Plaintiff was being exploited. Instead, BOA argues that the Act does not provide a private right of action for its failure to report.[I]t is true that the Act provides no private right of action for Plaintiff to sue BOA. Mora v. S. Broward Hosp. Dist., 710 So. 2d 633, 634 (Fla. Dist. Ct. App. 1998). However, Count 1 does not sue BOA for violating the Act, but rather sues BOA under a theory of common law negligence. Because Florida courts allow the inference of the breach of a legal duty from the violation of a statute, Kohl, 149 So. 3d at 132, the Court may look to the Act in answering whether BOA had a legal duty to Plaintiff. Accepting these facts as true, the Court is able to reasonably infer that BOA knew of Plaintiff’s exploitation, but failed to report the exploitation to the Florida Department of Children and Families, in violation of the Act. Consequently, the Court is also able to reasonably infer that the Act confers a duty on BOA to act to protect victims of elder exploitation and that BOA breached that duty in this case.