Kwoka v. Campbell, 73--1028
| Citation | 296 So.2d 629 |
| Decision Date | 23 May 1974 |
| Docket Number | No. 73--1028,73--1028 |
| Parties | Gregory KWOKA, a minor, et al., Appellants, v. Richard CAMPBELL et al., Appellees. |
| Court | Court of Appeal of Florida (US) |
Fuller, Brumer, Moss & Cohen, Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellants.
Talburt, Kubicki & Bradley, and L. Kenneth Barnett, Miami, for appellees.
Before PEARSON, CARROLL and HENDRY, JJ.
The appellants were the plaintiffs in an action to recover for injuries sustained by the minor plaintiff when he fell from an improvised swing upon appellees' property. There is no dispute as to the facts developed upon discovery and by affidavit. The trial court entered a summary final judgment for the defendants and this appeal followed.
The minor plaintiff was playing in the yard of defendants' home. In a tree in front of defendants' home there is a tree house. A 5/8 inch manila rope hung from the limb of the tree. The rope had been put there by the defendant, Mr. Campbell, about a year before the accident. About 15 minutes prior to the accident, the minor plaintiff and defendants' two children attached an automobile tire to the end of the rope. They also attached a bicycle inner tube to the tire to be used as a back rest when they sat in the tire. The minor plaintiff was the first to sit in the tire. He sat in the tire with his legs through the middle and his hands on the sides. He leaned back against the inner tube as he swung in the tire. The inner tube snapped and he fell backwards. The arc of the improvised swing was partly over a paved driveway. The minor plaintiff struck his head upon the driveway and was seriously injured.
The defendants had no knowledge prior to the accident that the tire had been fastened to the rope or that the tube had been fastened to the tire. Appellants' complaint charged the defendants with having maintained or allowed an improperly secured makeshift swing. Upon this appeal, the thrust of appellants' position is that the defendants maintained or allowed a rope to be placed in a dangerous position so that it could be used for a swing which would traverse a paved area.
Appellants concede that the court's judgment was proper at the time that it was entered but urged that a recent decision of the Supreme Court of Florida has overruled the law applied by the trial court, 1 citing Wood v. Camp, Fla.1973, 284 So.2d 691.
In the cited case, the Supreme Court held:
The test therefore is whether the facts recited raised a reasonable inference that the appellee landowner, by allowing the rope to hang from a tree in such a position that it might be made by children into a swing which would have an arc partly over a paved area, violated a duty of reasonable care to a neighborhood child. We think that a genuine issue of material fact is not raised and that under the law the appellees are entitled to judgment.
Appellants suggest that the issue is one of reasonable foreseeability and that only the jury can apply that test. This proposition cannot be true because under it every allegation of a breach of duty no matter how remote from an injury would result in a jury trial. The question of proximate cause is one for the court where there is an active and efficient intervening cause. See Tuz v. Burmeister, Fla.App.1971, 254 So.2d 569, where the court held:
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