Villegas v. Villegas, 96-2773

• Court: Court of Appeal of Florida (US)
• Writing for the Court: THOMPSON; PETERSON; DAUKSCH; DAUKSCH
• Citation: 696 So.2d 380
• Parties: 22 Fla. L. Weekly D1187 Brittany VILLEGAS, et al., Appellants, v. Paul VILLEGAS and Sheila Villegas, Appellees.
• Docket Number: No. 96-2773,96-2773
• Decision Date: 09 May 1997

Page 380

696 So.2d 380 22 Fla. L. Weekly D1187 Brittany VILLEGAS, et al., Appellants,
v.
Paul VILLEGAS and Sheila Villegas, Appellees. No. 96-2773. District Court of Appeal of Florida,
Fifth District. May 9, 1997.
Rehearing Denied July 9, 1997.

Appeal from the Circuit Court for Orange County; George A. Sprinkel, IV, Judge.

Gregory A. Page and Lee N. Bernbaum of Page, Eichenblatt, Perkins & Nation, P.A., Winter Park, for Appellants.

John S. McEwan, II of Sanders, McEwan, Martinez, Luff & Dukes, P.A., Orlando, for Appellees.

THOMPSON, Judge.

We affirm the final summary judgment. See Snow v. Nelson, 475 So.2d 225 (Fla.1985); Carey v. Reeve, 56 Wash.App. 18, 781 P.2d 904, 908 (1989) ("Whether the duty owed by the [grandparents] to third parties was either as parents, standing in loco parentis; a duty created by Restatement (Second) of Torts § 316 [parent's duty to control child's conduct]; a 'special relationship' duty created by Restatement (Second) of Torts § 315; or even under a duty because they voluntarily assumed responsibility for the child, the standard is the same.")

AFFIRMED.

PETERSON, C.J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge, dissenting.

I respectfully dissent.

Brittany suffered partial amputation and disfigurement of her hand when she unwittingly (she was two years old) stuck her hand into the spinning wheel of an exercise bicycle being operated by another child, age five. Appellees were in charge of caring for the children, were in control of the exercise bicycle and were aware of the danger posed by the bicycle in the presence of little children.

In my opinion the trial court erred in entering summary judgment against the child and her parents. There are serious questions of fact left unresolved and only a jury should rule on those disputed issues of material fact. It is reasonably foreseeable that a 5 year old child will climb upon a stationary bicycle and pedal it, if allowed to do so. It is also reasonably foreseeable that a two year old will be fascinated by a shiny spinning wheel and reach out to touch it. The caretakers of these children are alleged to have failed to act reasonably to prevent this accident and injuries. This case is hardly distinguishable from Springtree Properties, Inc. v. Hammond, 692 So.2d 164 (Fla. 1997) as it relates to the issue regarding foreseeability. Brittany and her parents should not be denied their rightful recompense.

I would reverse the summary judgment.

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