Perez v. Rodriguez
| Decision Date | 09 November 2016 |
| Docket Number | 4D14–1250,4D14–3656.,Nos. 4D14–935,s. 4D14–935 |
| Citation | 204 So.3d 92 |
| Parties | William PEREZ and Marcia Perez, as Personal Representatives of The Estate of Daniel Alejandro Perez, Deceased, Appellants, v. Enrique RODRIGUEZ, Sr. and Lori Baglio Rodriguez, Husband and Wife, Appellees. |
| Court | Florida District Court of Appeals |
Stephen F. Rosenthal and Ramon A. Rasco of Podhurst Orseck, P.A., Miami, for appellants.
Carlos A. Velasquez and Alejandro Larrazabel of Velasquez Dolan Arias, P.A., Fort Lauderdale, for appellees.
Dorothy V. DiFiore of HD Law Partners, Tampa, and Caryn L. Bellus of Kubicki Draper, P.A., Miami, for Amicus Curiae the Florida Defense Lawyers' Association.
William and Marcia Perez ("the Perezes"), as Personal Representatives of the Estate of Daniel Alejandro Perez ("Danny"), appeal a final judgment in favor of Enrique Rodriguez, Sr. ("Mr. Rodriguez") and Lori Baglio Rodriguez ("Mrs. Rodriguez"). Mr. and Mrs. Rodriguez cross-appeal orders denying each of their motions for attorney's fees and costs. We affirm on all issues raised by the parties, but we write to address the grant of summary judgment on a negligent supervision claim brought against Mrs. Rodriguez.
The instant appeal arises from a wrongful death action brought against the Rodriguezes by the Perezes after their son, Danny, was killed by injuries sustained in a tragic accident when Danny fell off of an all-terrain vehicle ("ATV") driven by the Rodriguezes' son, Ricky, who was not injured. Both boys were sixteen at the time of the incident, and neither boy was wearing a helmet.
The facts that follow were revealed largely through the deposition testimony of various parties and experts involved in the case. The ATV that the boys were riding is owned by Mr. Rodriguez. It is capable of traveling up to approximately 65 miles per hour and was designed for a single rider. The ATV was a surprise gift for Ricky. Mr. Rodriguez never rode on the subject ATV, and Mrs. Rodriguez rode on it with Ricky twice, but did not wear a helmet on those occasions. Prior to the incident, no one other than Mrs. Rodriguez rode as a passenger on the ATV.
Ricky was required to ask for permission before riding his ATV and was not allowed to ride it unless one of his parents was home. Before the incident, Ricky had not disobeyed his parents with regard to the ATV. The Rodriguezes moved into a new home in Southwest Ranches approximately two days before the incident, but had stored Ricky's ATV as well as another ATV at their new home for several months prior to the move. At their previous home in Davie, the ATV keys were kept in a desk drawer with a lock and key. Thus, prior to the move, Ricky could not access his ATV unless one of his parents drove him to their Southwest Ranches home. Once they moved into the Southwest Ranches home, the ATV keys were kept in an unlocked drawer in Mrs. Rodriguez's office.
On the day of the incident, Danny's father dropped him off at the Rodriguezes' new home. Ricky's mother was home at the time, but his father was not. Danny had been a guest at the Rodriguezes' prior residence approximately five times in the past. At some point on the fateful day, while the boys were swimming, Danny requested to ride the Rodriguezes' ATVs, but Ricky said no, indicating that he was not allowed. Ricky's mother then served lunch to the boys and told them to get out of the pool and call Danny's parents. She was leaving soon to run errands and did not want the boys home alone together. She left the boys at the house around 3:30 p.m. A few minutes later, she called Ricky and confirmed that Danny had called his father, and Ricky assured her that Danny would leave when they finished eating lunch. Prior to that day, Mrs. Rodriguez had never left Ricky at home alone with a friend.
Approximately forty-five minutes later, the boys went into the garage, at which point Danny again requested to ride the ATVs and Ricky, this time, was agreeable. Ricky had one helmet, but it did not fit Danny, so he did not wear it. Ricky did not wear the helmet because he did not want the helmet to hit Danny in the head, since Danny would not be wearing a helmet.
Danny wanted to ride one ATV while Ricky rode the other, but Danny was wearing shorts and Ricky didn't want him to burn his legs on the exhaust. As a result, they agreed that Danny would ride on the back of Ricky's ATV, since his legs would not hit the exhaust while riding as a passenger. While traversing neighboring lots, Danny let go a few times before the accident, and Ricky instructed him to hold on tight, with Danny's arms around Ricky's waist.
When the accident occurred, the boys were riding on a grassy shoulder off of 172nd Avenue. Ricky felt Danny's grip release and Danny fell off of the ATV. Ricky then ran to him and began administering CPR. Sadly, Danny never regained consciousness. An internal autopsy was not performed, but a forensic pathologist performed an external examination and determined that Danny died from blunt force trauma to the head. He opined that fractures to Danny's skull and neck were caused by his head striking soft ground. It is unclear why Danny fell off of the ATV. The investigating detective opined that the ATV was traveling at approximately 20–30 miles per hour at the time of the accident and that the accident was not the result of driver error.
Following the accident, the Perezes filed a complaint against the Rodriguezes asserting, among other claims, a count for negligent supervision against Mrs. Rodriguez. Mrs. Rodriguez moved for final summary judgment contending that, in accordance with Florida law, she was under no duty to supervise the sixteen-year-olds. As to this issue, the trial court granted summary judgment, reasoning as follows:
At the hearing the Defendants[ ] contest[ed] the Plaintiffs' assertion that because the boys were minors, the Defendants[ ] were negligent in supervising them. The Plaintiffs claim that the Defendants owed their son a duty of reasonable care as a social visitor in their home, and that when Ricky's mother received Danny at the door she undertook a duty to supervise him as a minor in her care. The Plaintiffs also claim that the Defendants failed to supervise their own son Rick[ ]y on the day of the accident. Florida courts have recognized that adults have a duty, as ordinary prudent persons, to watch over and supervise children too young to exercise judgment to care for themselves and protect them from foreseeable hazards and harm. Orlando Sports Stadium, Inc. v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981). This Court finds that a 16–year–old is not "too young to exercise judgment." Thus, the Defendants should not be held liable for the supervision of the Plaintiffs' son when he was a visitor in their home.
On appeal, the Perezes argue that the trial court erred in entering summary judgment on the negligent supervision claim because material issues of fact precluded summary judgment. We must disagree.
"The existence of a duty of care is generally a question of law to be determined by the court...." Schwartz v. Wal–Mart Stores, Inc., 155 So.3d 471, 473 (Fla. 5th DCA 2015). "The general rule is that a party has no legal duty to ‘prevent the misconduct of third persons.’ " K.M. ex rel. D.M. v. Publix Super Markets, Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA 2005) (quoting Michael & Philip, Inc. v. Sierra, 776 So.2d 294, 297 (Fla. 4th DCA 2000) ). " ‘Florida courts have long been loath[ ] to impose liability based on a defendant's failure...
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...(citing Gissen v. Goodwill , 80 So.2d 701 (Fla. 1955)). There are four recognized exceptions to this rule. Source Perez v. Rodriguez , 204 So.3d 92, 95 (Fla. 4th DCA 2016). NEGLIGENCE CASES §2:110 Florida Causes of Action 2-60 See Also Fina v. Hennarichs , 19 So.3d 1081, 1084 (Fla. 4th DCA ......