Snow v. Nelson
| Decision Date | 01 May 1984 |
| Docket Number | No. 83-737,83-737 |
| Parties | Robert E. SNOW and Cynthia Snow, as parents and natural guardians of Randall K. Snow, a minor, Appellants, v. Chris NELSON and Jeannie Nelson, as parents and guardians of Mark Nelson, a minor, and United Services Automobile Association, Appellees. |
| Court | Florida District Court of Appeals |
Horton, Perse & Ginsberg and Arnold Ginsberg, Huggett & Martucci, Miami, for appellants.
Gilmour, Morgan & Rosenblatt and Victor Lance, Miami, for appellees.
Before HUBBART, FERGUSON and JORGENSON, JJ.
This case involves the question of parental responsibility for injuries inflicted by a minor child. Because we are restrained by supreme court precedent, we affirm the trial court's direction of a verdict for the parents of the alleged tortfeasor. However, because we are unable to reconcile the precedential supreme court holding, or our own, with what we feel to be the dictates of justice and fairness and feel that it is time for a more enlightened approach to the questions involved, we respectfully certify to the Supreme Court of Florida that the present case passes upon a question of great public importance and warrants a re-examination of the principles announced in Gissen v. Goodwill, 80 So.2d 701 (Fla.1955).
Fourteen-year-old Mark Nelson, who was not only older but was also a foot taller than his younger playmate, invited thirteen-year-old Randall Snow to play a game, of Mark's invention, that required two croquet mallets, two tennis balls and a street. The game consisted of each child's hitting his assigned tennis ball with a croquet mallet, repeatedly, until the ball reached a predetermined location down the street, upon which goal being reached, the direction of the race would be reversed and the process repeated until the return of the tennis balls to the point of departure. After the two children had been playing the game for awhile, Mark, who admitted that he saw "a person" in his path at the time, took what he described as a "fast swing" because Randall (who was younger and smaller but apparently faster) was winning. The game ended when Mark's errant swing hit Randall in the eye, resulting ultimately in its removal, as well as in the permanent termination of Randall's senses of smell and taste.
Randall's parents, the Snows, brought a tort action against Mark's parents, the Nelsons, and the Nelsons' liability insurer. The complaint premised recovery both on vicarious liability and the Nelsons' direct negligence in controlling the conduct of Mark. At trial the issues were narrowed to the latter. Testimony revealed that Mark had a propensity to be rough with smaller children (the majority of his playmates), sometimes pushing or hitting them. Mark's father characterized reports to him of these incidents as "kids' tattling." He also testified that he had seen his son playing the game before and that he thought his son played the game frequently. At the close of the evidence the Nelsons and their liability insurer moved for a directed verdict. The trial court reserved its ruling until after the jury had retired, then granted the motion. The jury found Mark's parents seventy-five per cent at fault with total damages of $135,000.
One of the more inscrutable holdovers from the ancient establishments of the common law is the historically ubiquitous idea that a parent who has visited upon the world a tort-inflicting child ought not to be held financially responsible for the torts that the child has in turn visited upon those of us unfortunate enough to have gotten in the way. As Dean Prosser observed, "With the child usually quite irresponsible financially, and the parent not liable at all, the result has been a rather serious problem of uncompensated juvenile depredation ...," W. Prosser, Law of Torts § 123 (4th ed. 1971). 1 Nevertheless, when the Florida Supreme Court first confronted the issue several decades ago, it accepted as "basic and established law that a parent is not liable for the tort of his minor child because of the mere fact of his paternity," Gissen at 703, and sent forth without compensation the hapless gentleman a portion of whose finger had been severed from his hand by the playful antic of eight-year-old Geraldine Goodwill, see id. at 702, 705-06.
There are, however, as is generally true with harsh doctrine created in a distant and dissimilar era, judicial "exceptions" to the rule of parental irresponsibility. These are (1) the entrustment of a child with an instrumentality which, because of the child's lack of age, judgment or experience, may become a source of danger to others; (2) the existence of a relationship between the parent and child that is in fact a master and servant or principal and agent relationship; (3) a parent's knowing of and consenting to, directing or sanctioning a child's wrongdoing and (4) a parent's failing to exercise parental control over a child although the parent knows or in the exercise of due care should have known that injury to another is a probable consequence. E.g., Gissen at 703.
We feel that the facts of this case readily fall within the last and broadest of these "exceptions," which, indeed, is not an exception to vicarious liability but a recognition of direct parental responsibility, the duty of a parent to exercise reasonable control over the conduct of a child:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) of Torts § 316 (1965).
According to the encyclopedists and annotators, the facts recounted in the cases where courts have found evidence sufficient for a determination by the factfinder of parental negligence present a pattern wherein the injury inflicted by the child is one which reasonably should have been foreseen by the parent as likely to flow, as a natural and probable consequence, from the child's course of conduct involving similar acts. See, e.g., 67A C.J.S. Parent & Child §§ 125-26 (1978); Annot., 54 A.L.R.3d 974, 992-1008 (1973 & Supp.1983); 59 Am.Jur.2d Parent & Child § 133 (1971 & Supp.1983). A survey of the various cases, though, reveals that the application of this similar acts rule is at times of sufficient breadth to conclude that if the rule ever existed universally, which is to be doubted, it has been transcended and replaced by a less restrictive case-by-case determination of parental negligence limited only by the broad bounds expressed in the Restatement. 2 Parents, therefore, are "responsible for [the] conduct [of their children] in so far as [they have] the ability to control it," Restatement (Second) of Torts § 316 comment a, and have the "opportunity" and know of "the necessity of so doing," id. comment b. 3 We feel that this broader rule, which we believe to be a requirement of reasonable care in the circumstances short of some form of vicarious liability, 4 is the better rule.
id. Injury to another did result when little Miss Goodwill " 'wilfully, deliberately, intentionally and maliciously' " swung a door " 'with such great force and violence against the plaintiff ... that the middle finger on plaintiff's left hand was caught in the door and a portion of said finger was caused to be instantaneously severed and fell to the floor,' " id.
After examining seven cases that considered direct parental responsibility, 5 the supreme court found that "[o]ne common factor" allowing a finding of parental liability was a determination that "the child had the habit of doing the particular type of wrongful act which resulted in the injury complained of," Gissen at 705. "It is nowhere claimed," the court continued, "that the child here involved had a propensity to swing or slam doors at the hazard of persons using such doors," id., and, with a 4-0 ruling, affirmed the trial court's dismissal of the complaint, see id. at 706; accord Spector v. Neer, 262 So.2d 689 (Fla. 3d DCA 1972). 6
The supreme court's analysis was not well received by contemporary commentators, one noting that the result is a rather inequitable one. While the parent, in this state, is not liable for the torts of his minor because of the mere fact of paternity, nevertheless, it would appear, that if it is plainly shown by the facts, that the child was actually possessed of vicious tendencies and the parents knew or should have known of them, then liability should attach, even though the specific wrongful conduct was not known to be habitual,
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