Sardell v. Malanio, 35830

• Decision Date: 27 September 1967
• Docket Number: No. 35830,35830
• Citation: 202 So.2d 746
• Parties: Nicholas C. SARDELL and Marie H. Sardell, his wife, Petitioners, v. Gary MALANIO, Respondent.
• Court: Florida Supreme Court

Page 746

202 So.2d 746

Nicholas C. SARDELL and Marie H. Sardell, his wife, Petitioners, v. Gary MALANIO, Respondent.

No. 35830.

Supreme Court of Florida.

Sept. 27, 1967.

Frates, Fay, Floyd & Pearson and Larry S. Stewart, Miami, for petitioners.

Weinstein & Weissenborn, Miami, for respondent.

THORNAL, Justice.

By petition for certiorari we are requested to review a decision of the District Court of Appeal, Third District because of an alleged conflict with a prior decision of this Court on the same point of law.

Our problem involves a consideration of the doctrine of proximate cause as affected by the claimed presence of an effective intervening independent cause in the chain of events producing an injury.

Two minors, Irving Silverman and Gary Malanio, were engaged in 'playing catch' with a football in a Miami street. At the moment in question, Mrs. Sardell was crossing the street. Gary passed the ball to Irving. In an effort to make the catch, Irving collided with Mrs. Sardell knocking her to the ground. Claiming injury, she alleged negligence by Silverman. He is not a party to this proceeding. Alternatively, she alleged that Malanio negligently threw the ball to Silverman in her immediate vicinity without maintaining a proper lookout and failed to warn her that he was throwing the pass when he knew or should have known of her presence. She alleged that this negligence of Malanio caused her injury. The trial judge sustained a motion to dismiss the complaint as it related to Malanio. His order was affirmed on appeal by the D.C.A Sardell v. Malanio, 189 So.2d 393 (3d D.C.A. Fla. 1966). This decision is now here for review.

The District Court of Appeal correctly opined that '(t)o constitute proximate cause, there must be such a Natural, direct and Continuous sequence between the negligent act and the injury that it can reasonably be said but for the act the injury would not have occurred'. Id. at 394. It then apparently reasoned that the act of the catcher was the efficient, intervening independent cause effectively disassociated from the alleged initial negligent act of the passer. It reached this conclusion by observing that the passer had no 'physical control over the pass catcher' and had no reason to expect the collision with the plaintiff 'even if the football was thrown into her immediate vicinity'. Id. Thus the District Court held that the alleged negligence of the catcher effectively isolated the initial alleged negligence of the passer, even though it was clearly set in motion by the original act of passing the ball.

In so concluding, we feel that the District Court overlooked the rule of Loftin v. McCranie, 47 So.2d 298, 302 (Fla. 1950), where this Court held that 'no intervening cause is Efficient unless it is independent of and Not set in motion by the original wrongful act'. (emphasis added). The complaint alleged that the ball was negligently thrown by the passer to the catcher without maintaining a proper lookout and without warning to the plaintiff despite actual or constructive knowledge of her presence. The status of the pleadings compels acceptance of these factual allegations as reflected by ...