Snow v. Nelson
| Decision Date | 30 August 1985 |
| Docket Number | No. 65391,65391 |
| Parties | 10 Fla. L. Weekly 454 Robert E. SNOW, et al., Petitioners, v. Chris NELSON, et al., Respondents. |
| Court | Florida Supreme Court |
Arnold R. Ginsberg of Horton, Perse & Ginsberg and Huggett & Martucci, Miami, for petitioners.
Victor Lance of Gilmour, Morgan & Rosenblatt, Miami, for respondents.
This cause is before us on a certification by the district court of appeal that the case passes upon a question of great public importance and warrants a reexamination of the principles announced in Gissen v. Goodwill, 80 So.2d 701 (Fla.1955). Snow v. Nelson, 450 So.2d 269 (Fla. 3d DCA 1984). We have jurisdiction. Art. V, § 3(b)(5), Fla. Const.
The case involves the question of parental responsibility for injuries inflicted by a minor child. The facts are fully set forth in the opinion below. For our purposes, it is enough to say that an older, larger child seriously injured a younger, smaller child while involved in play. The parents of the injured child brought a tort suit based on vicarious liability and direct negligence of the parents, alleging that the tortfeasor child had a known propensity to be rough with smaller children by pushing or hitting them and that his parents were aware of this propensity. At the close of the evidence, the trial court reserved its ruling on the defendants' motion for a directed verdict until after the jury had retired and then granted the motion. The jury found the defendant parents seventy-five per cent at fault with total damages of $135,000.
We addressed the same issue of parental responsibility in a factual setting remarkably similar to the present case in Gissen. It was alleged in Gissen that the parents negligently failed to restrain a child who they knew had dangerous tendencies and propensities of a mischievous and wanton nature. The specific alleged tortious act was that the child willfully, deliberately, intentionally and maliciously closed a door with such force and violence as to sever a finger on the victim's hand. We first recognized the "basic and established law that a parent is not liable for the tort of a minor child because of the mere fact of paternity." Gissen at 703. Nevertheless, we also recognized four broadly defined exceptions wherein a parent may incur liability: (1) where the parent entrusts the 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) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible. The exception at issue here, as in Gissen, is number four. In Gissen we read the exception narrowly, holding that the cause of action must allege that the child had a habit of engaging in a particular act or course of conduct which led to the plaintiff's injury. Consequently, because there was no allegation that the child in Gissen had a...
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