WILLIAM AND JEAN TOUT, APPELLANTS,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, ETC., APPELLEE
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Hartford Insurance, as subrogee for a home seller, sued tenants William and Jean Tout for fire damage under a subrogation theory. The trial court struck the Touts' exculpatory clause defense and entered judgment against both defendants. The appellate court affirmed the striking of the exculpatory clause but reversed as to Mr. Tout, finding he could not be held liable for his wife's negligence in leaving the stove on without evidence he had a duty to superintend her cooking activities.
The court affirmed the trial court's striking of the exculpatory clause, holding that a limitation of liability for negligent acts cannot be inferred unless expressed in unequivocal terms, and that such agreements are void under Florida law. However, the court reversed the judgment as to Mr. Tout, holding that absent knowledge of the other spouse's propensities for negligence, one spouse cannot be held liable for the other's negligent acts merely by failing to superintend those activities.
[1] An exculpatory clause in a land sale contract permitting a tenant to rent the premises prior to closing will not be construed to relieve the tenant of liability for their…
[2] A statute abrogating the common law rule of spousal liability for torts renders a husband not liable for the torts of his wife.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a limitation of liability for one's negligent acts cannot be inferred unless such intention is expressed in unequivocal terms”
Establishes the standard for enforcing exculpatory clauses—they must explicitly address negligence, not merely allocate general risk of loss.
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Join FLexlaw to unlock all legal intelligenceThe Touts contracted to purchase a home from Michael Greenwald with a clause allowing them to rent the premises before closing. The contract contained…
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NESBITT, Judge.
The Touts, defendants below, appealed from a final judgment entered in favor of Hartford Accident & Indemnity Company (Hartford), as subrogee for Michael S. Greenwald (Greenwald).
The Touts entered into a land sale contract for the purchase of a home owned by Greenwald. The contract permitted the Touts to rent the premises at a stipulated monthly sum prior to closing. Additionally, the contract between the Touts and Green-wald contained the following exculpatory clause: “Seller assumes risk of loss from fire or otherwise until closing .. ..” While the Touts were in possession as tenants, a fire broke out in the kitchen of the premises resulting in damage in the amount of $9,068.96, which was paid to Greenwald by Hartford under a homeowner’s insurance policy it had issued. Hartford then initiat ed this subrogation action against the Touts to recover the amount paid.
The testimony of the parties reveals that on November 1, 1976, while preparing the evening meal, Mrs. Tout realized she was late picking up her child from school. Mr. Tout, who was home at the time, drove his wife to pick up their child. Unfortunately, Mrs. Tout had neglected to turn off the electric range before leaving and upon their return they discovered the kitchen ablaze. In their answer to the sub-rogation claim filed by Hartford, the Touts asserted the exculpatory clause cited above as an affirmative defense. Hartford’s motion to strike this defense was granted, which the Touts alleged to be error. We disagree.
While the ruling of the trial court is supportable on Section 83.47(l)(b), Florida Statutes (1975), which makes agreements to limit or preclude liability void, see also Fuentes v. Owen, 310 So. 2d 458, 459 (Fla. 3d DCA 1975), we prefer to rest our affirmance of this portion of the challenged order on the ground that a limitation of liability for one’s negligent acts cannot be inferred unless such intention is expressed in unequivocal terms. Ivey Plants, Inc. v. F.M.C. Corporation, 282 So. 2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So. 2d 731 (Fla.1974).
The issue proceeded to trial where a jury rendered a verdict against both Mr. and Mrs. Tout. Mr. Tout’s motion for directed verdict at the close of all evidence was denied. Mr. Tout argues that this, too, was error because the common law rule rendering a husband liable for the torts of his wife has been abrogated. § 741.23, Fla. Stat. (1975). Mr. Tout’s argument, based upon the cited statute, is unassailable. Nonetheless, Hartford attempts to support the verdict and judgment appealed upon the assertion that Mr. Tout was aware of Mrs. Tout’s cooking activities and failed to superintend or secure thé premises before they jointly left to retrieve their son from school. It is Hartford’s position that this was sufficient to create an inference of his active negligence. We disagree.
Mr. Tout, undeniably, disclaimed any responsibility for the superintendence of his wife’s activities, stating: “That is not my department.” Absent a showing that one spouse has knowledge of the propensities of the other which may give rise to negligence, we think that it would be an unwarranted and pernicious rule which imposed liability upon one like Mr. Tout, who was under no legal duty to manage or superintend his wife’s preparation of the evening meal. See Restatement (Second) Torts, §§ 308, 314, 315 (1965). Accordingly, the denial of Mr. Tout’s motion for directed verdict was error. For the foregoing reasons, the judgment appealed from is affirmed in part and reversed in part with directions to delete Mr. Tout from the judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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O'Connell v. Walt Disney World Co., 413 So. 2d 444 (Fla. 5th DCA 1982)…looked upon with disfavor; and any attempt to limit one’s liability for his own negligent act will not be inferred from an agreement unless such intention is expressed in clear and unequivocal terms. Tout v. Hartford Accident and Indemnity Company, 390 So. 2d 155 (Fla.3d [*447] DCA 1980); Ivey Plants, Inc. v. F.M.C. Corporation, 282 So. 2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So. 2d 731 (Fla.1974). Similarly, unless an indemnity agreement clearly and unequivocally provides for indemnification for the i…
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Sanislo v. Give Kids THE World, Inc., 157 So. 3d 256 (Fla. 2015)…evine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984); Goyings v. Jack & Ruth Eckerd Found., 403 So. 2d 1144 (Fla. 2d DCA 1981); and Tout v. Hartford Accident & Indem. Co., 390 So. 2d 155 (Fla. 3d DCA 1980). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we approve the Fifth District’s decision in Give Kids the World and disapprove the decisions of the First, Second, Third, and Fourth District Cou…1 / 2
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Mariette (LeGault) Schryburt v. Olesen, 475 So. 2d 715 (Fla. 2d DCA 1985)…lent concealment and misrepresentation. Under Florida law, a wife is not liable for her husband’s tort when she has no knowledge of his tortious conduct and does not authorize or participate in the act. See Tout v. Hartford Accident & Indemnity Co., 390 So. 2d 155 (Fla. 3d DCA 1980), and Baird v. Johnson, [*717] 235 So. 2d 538 (Fla. 4th DCA 1970). Consequently, the trial court erred in entering judgment against Mariette. The fact that she joined in the sale by signing the deed, standing alone, is insufficient…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205 (Fla. 4th DCA 1973)
- Simonet v. Simonet, 289 So. 2d 731 (Fla. 1974)
- Stella v. Craine, 289 So. 2d 731 (Fla. 1974)
- Fuentes v. Owen, 310 So. 2d 458 (Fla. 3d DCA 1975)