MARGARET JOANN PADGETT ET AL., APPELLANTS,
v.
THE SCHOOL BOARD OF ESCAMBIA COUNTY, FLORIDA, ET AL., APPELLEES

Fla. 1st DCA | 1981-03-18
No. UU-234
ERVIN, SHAW and WENTWORTH, JJ., concur.
395 So. 2d 584 Florida District Court of Appeal, First District (1981) Caution
Cited by 37 cases

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Synopsis

A minor injured at a school crossing brought a negligence action against the School Board of Escambia County. The trial court dismissed the complaint for failure to allege a duty owed to the plaintiff. The appellate court reversed in part, holding that allegations the school principal negligently operated or failed to operate warning signals at the school crossing stated a valid claim because the school board had voluntarily assumed that duty.


Holding

The court reversed the dismissal as to allegations concerning the principal's negligent operation of or failure to operate the warning signals, holding that these allegations adequately allege a duty because the school board voluntarily undertook to operate the warning lights. Remaining allegations relating to activities not voluntarily assumed by the principal were not actionable.


Headnotes

[1] A party who voluntarily undertakes to perform an act for another, even gratuitously, owes a duty to exercise a reasonable degree of care and skill in its performance.

[2] Once a governmental entity elects to install a traffic warning system, it assumes a duty to operate that system properly.

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Key Quotes

“It is also axiomatic that the law imposes an obligation on everyone who attempts to do anything, even gratuitously, for another to exercise some degree of care and skill in the performance of what he has undertaken.”

Establishes the foundational principle that voluntary undertaking of a duty creates an obligation to exercise reasonable care.

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Facts & Procedural History

David Lee Huddleson, a minor, suffered serious injuries while crossing a street at or near a school crossing in Escambia County. His mother, Margaret …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This appeal is taken from an order dismissing a third amended complaint with prejudice on the ground that the appellants failed to allege any duty owed them by appellee, The School Board of Escambia County. This action was brought by Margaret Joann Padgett on behalf of her minor son, David Lee Huddleson (appellants), to recover damages for serious injuries allegedly caused by defendants that Huddle-son incurred while he was crossing a street at or near a school crossing in Escambia County.

We reverse the order only as to those allegations concerning the principal’s negligent operation of or failure to operate the warning signals at the school crossing, as those allegations adequately allege a duty. The remaining allegations which relate to activities not voluntarily assumed by the principal are not actionable.

The third amended complaint alleged that the School Board, through the acts of its principal, had voluntarily undertaken to operate flashing operating lights at the school crossing. For purposes of a motion to dismiss the allegations of a complaint are taken to be true. It is also axiomatic that the law imposes an obligation on everyone who attempts to do anything, even gratuitously, for another to exercise some degree of care and skill in the performance of what he has undertaken. Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Fla.Jur., Negligence, § 13. See also, Shealor v. Ruud, 221 So. 2d 765 (Fla. 4th DCA 1969), which held that once a city had elected to install a traffic warning system, it had assumed a duty to operate the system properly.

It cannot be determined from the face of the complaint, or as a matter of law, that the principal was not acting within the scope of his employment by his decision to operate the warning lights. There does not appear to be any legal authority precluding agents of the school board from operating traffic control lights. On the contrary, the school board has the authority to operate school crossing lights if it chooses to do so. See Section 232.25, Florida Statu tes. (1975).1 Moreover, Section 316.184, Florida Statutes (1975), which places the duty of installing and maintaining school traffic control devices upon the Department of Transportation and local government authorities, in no way preempts a school board from operating school traffic control devices. And finally, although the principal, as the School Board argues, may have presumptively been without authority to operate the light since the appellants did not allege in their complaint that the school board had adopted a rule pursuant to Section 232.25, which would have given the principal authorization, nevertheless, the failure to so allege does not require dismissal of the complaint. Cases are legion holding a principal liable to a third party for an unauthorized act of an agent when the agent was acting within his or her apparent authority. Further, the legal concepts “scope of employment” and “actual authority” are not mutually inclusive. An agent may still have acted within the scope of his authority even though he deviated from his employer’s instructions. See United States v. Haney Chevrolet, Inc., 371 F.Supp. 381 (M.D.Fla.1974).

Also, conduct may be within the “scope of employment” even if it is unauthorized, if it is of the same general nature as, or sufficiently similar to, authorized conduct, taking into consideration the various factors relevant to the master-servant relationship. Lewis v. Walston & Co., Inc., 487 F. 2d 617 (5th Cir. 1973).

If the school principal here was not acting within the scope of his employment when he operated or failed to operate the warning lights, the appellees could raise this issue in the form of an affirmative defense. The question whether a tort committed by an agent is within the scope of his employment is normally to be determined by the jury. Green Cove Springs v. Donaldson, 348 F. 2d 197 (5th Cir. 1965).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

ERVIN, SHAW and WENTWORTH, JJ., concur. . Section 232.25, Florida Statutes (1975), provides:

[T]he state board or the district school board may, by rules and regulations, subject each pupil to the control and direction of the principal or teacher in charge of the school during the time he is otherwise en route to or from school or is presumed by law t6 be attending school.

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (19 total)

  • Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982)
    …A.L.R.3d 830 (1971).20 Florida courts have specifically recognized that a negligent failure to act in carrying out this duty of the school is actionable. See Ankers v. District School Board, 406 So. 2d 72 (Fla. 2d DCA 1981); Padgett v. School Board, 395 So. 2d 584 (Fla. 1st DCA 1981). The genesis of this supervisory duty is based on the school employee standing partially in place of the student’s parents.21 Mandatory schooling has forced parents into relying on teachers to protect children during school activ…
  • Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)
    …aimed that he did conduct such a check) when, in fact, he never responded to the scene. See id. at 1024 (relying upon Dep’t of Highway Safety & Motor Vehicles v. Kropff, 491 So. 2d 1252 (Fla. 3d DCA 1986), and Padgett v. Sch. Bd. of Escambia County, 395 So. 2d 584 (Fla. 1st DCA 1981)). As we explained long ago in Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla.1960), and subsequently reaffirmed following the 1980 amendments to article V of the Florida Constitution,3 there are two principle circumstance…
    1 / 2
  • Bryant v. The Sch. Bd. OF Duval Cnty., 399 So. 2d 417 (Fla. 1st DCA 1981)
    …to be true, the school board and its agents had a duty to execute and implement board policy without negligence. Hollis v. School Board of Leon County, 384 So. 2d 661, 666 (Fla. 1st DCA 1980). See also Padgett v. The School Board of Escambia County, 395 So. 2d 584 (Fla. 1st DCA 1981). By failing to carry out this duty, appellees could conceivably be deemed negligent. They permitted a chain of events to be set in motion which allegedly culminated in Bryant’s injury. However, any analysis of a negligence actio…

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