ORLANDO SPORTS STADIUM, INC., PETE ASHLOCK AND RUSSELL COE, OPERATING AS P & R RACING; PETE ASHLOCK, INDIVIDUALLY; AND RUSSELL COE, INDIVIDUALLY, APPELLANTS,
v.
SUSAN L. GERZEL, JOHN F. EPPRIGHT, ROBERT R. GERZEL AND LYNN EPPRIGHT, APPELLEES
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The court reversed the dismissal of a third-party complaint seeking contribution from parents whose negligent supervision of their young children allegedly combined with the defendants' negligence to cause the children's injuries at a motorcycle race. The court held that parents owe a duty of reasonable care to supervise and protect their children from foreseeable hazards, and that tortfeasors may seek contribution from parents whose negligence contributes to a child's injury.
The court held that parents owe a duty as ordinary prudent persons to use reasonable care to watch over, supervise, and protect children in their custody from foreseeable hazards. Tortfeasors may seek contribution from parents whose negligence combines with the tortfeasor's negligence to cause injury to a child, and the trial court's dismissal of the counterclaim and third-party complaint was reversed.
[1] A tortfeasor may seek contribution from a parent whose negligence contributed to the injury of their child.
[2] The duty to supervise and protect children too young to care for themselves requires parents to exercise reasonable care to protect them from foreseeable hazards.
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Join FLexlaw to unlock all legal intelligence“parents and others having the immediate custody and control of children too young to exercise judgment to care for themselves, have a duty as ordinary prudent persons to use reasonable care to watch over, supervise and protect them from foreseeable hazards and harm”
Establishes the core holding that parents owe a general duty of reasonable supervision and protection of their children
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Join FLexlaw to unlock all legal intelligenceTwo minors were injured when they wandered from a spectator area onto a motorcycle race track at appellants' facility and were struck by a motorcycle.…
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COWART, Judge.
Two minors, by and through one parent each, sued alleging that appellants provided a spectator area at motorcycle races which permitted the minors to wander onto the race track where they were struck by a motorcycle and injured. Damages were claimed for the minors’ injuries and by the parents, individually, for medical expenses and loss of their children’s services. Appellants counterclaimed against the plaintiff-parents and filed third-party complaints against the minors’ non-party parents for contribution1 claiming the parents negligently failed to supervise and protect their children.
The trial court dismissed the counterclaims and third-party complaints on the authority of 3-M Electric Corporation v. Vigoa, 369 So. 2d 405 (Fla.3d DCA 1979).
The trial court felt bound by S-M but could not agree that a proper result was being reached. The court reasoned that if the doctrine of comparative negligence (Hoffman v. Jones, 280 So. 2d 431 (Fla.1973)), was to be fairly applied in this case, the rationale of Shor v. Paoli, 353 So. 2d 825 (Fla.1977) (permitting a negligent tortfeasor to seek contribution from a wife whose negligence contributed to the injuries caused her husband), should be extended and applied to permit a third person, whose negligence combines with that of parents to, cause injury to a child, to have contribution from the parents when necessary in order to permit the third person tortfeasor to reduce his financial exposure to the level of his prorata share of the total negligence causing the injury.
We agree with the trial judge. Since the trial judge’s reliance on 3-M, that decision has been overruled, Quest v. Joseph, 392 So. 2d 256 (Fla.3d D.C.A.1981).
This court has held that there is no logical distinction between the interspousal immunity involved in Shor and the parent-child relationship and therefore, has recognized a tortfeasor’s right of contribution from a mother who was allegedly negligent in operating the vehicle in which her child was injured. Withow v. Woods, 386 So. 2d 607 (Fla. 5th DCA 1980).
Both the spousal negligence in Shor and the parental negligence in Woods involved the failure of a general duty required of all people, that of properly operating a motor vehicle. See also Mantilla v. Hassanien, 396 So. 2d 1135 (Fla.3d DCA 1981).
However here, as in Quest, the asserted liability of the parents is based on the alleged failure to properly supervise and protect their children, a duty pertaining exclusively to parents. While we are apprehensive as to the result of some applications of the principle,2 we are compelled to recognize that parents and others having the immediate custody and control of chil dren too young to exercise judgment to care for themselves, have a duty as ordinary prudent persons to use reasonable care to watch over, supervise and protect them from foreseeable hazards and harm. In doing so, we note with approval the excellent opinion of Judge Schwartz on rehearing en banc in Quest.
This decision passes upon the question as to whether, and under what circumstances, an action for contribution lies against the parents of an injured child. We hereby certify that we believe this to be a question of great public importance so that appel-lees, if they wish, may timely invoke the discretionary jurisdiction of our Supreme Court to review this decision. Art. V, § 3(b)(3), Fla.Const. (1980); Fla.R.App.P. 9.030(a)(2)(A)(v) and 9.120.
Accordingly, the order dismissing the counterclaim and the third-party complaint for contribution from the parents is
REVERSED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur. . § *768.31(2)(a), Fla.Stat. (1979).
. See Annot., 41 A.L.R.3d 904 (1972) [liability of parent for injury to unemancipated child caused by parent’s negligence].
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Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla. 3d DCA 1986)…testimony is immaterial because the jury did not address the question of the Kinyas’ negligence. The court’s instruction on the Kin-yas’ duty of care is a correct statement of the law and was properly given. Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981); Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1980); Perotta v. Tri-State Insurance Company, 317 So. 2d 104 (Fla. 3d DCA 1975). The Kinyas cannot legitimately claim that they were harmed by the instruction. The jury found that Li…
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Barfield v. Langley, 432 So. 2d 748 (Fla. 2d DCA 1983)…on on the afternoon in which the injury occurred. Thus, she had a duty as a matter of law to exercise a reasonable degree of care in protecting him from reasonably foreseeable harm. As our sister court held in Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370, 371-72 (Fla. 5th DCA 1981): [P]arents and others having the immediate custody and control of children too young to exercise judgment to care for themselves, have a duty as ordinary persons to use reasonable care to watch over, supervise and protec…
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City OF Jacksonville v. Raulerson, 415 So. 2d 1303 (Fla. 1st DCA 1982)…for themselves, have a duty as ordinary prudent persons to use reasonable care to watch over, supervise, and protect them from foreseeable hazards and harm. Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1981); Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981). The negligence of parents in failing to supervise children under some circumstances can be the sole legal cause of their injury or death. Alves v. Adler Built Industries, Inc., 366 So. 2d 802 (Fla. 3d DCA), cert. denied, 378 So.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Shor v. Paoli, 353 So. 2d 825 (Fla. 1977)
- Quest v. Joseph, 392 So. 2d 256 (Fla. 3d DCA 1980)
- 3-M Elec. Corp. v. Vigoa, 369 So. 2d 405 (Fla. 3d DCA 1979)
- Withrow v. Woods, 386 So. 2d 607 (Fla. 5th DCA 1980)
- Evelio Mantilla & Am. Motorists Ins. Co. v. Olimpia Hassanien and Mohamed Nabil Hassanien, 396 So. 2d 1135 (Fla. 3d DCA 1981)