JASON LEE BARFIELD, A MINOR, BY AND THROUGH HIS FATHER AND NATURAL GUARDIAN, AND ROGER BARFIELD, INDIVIDUALLY, APPELLANTS,
v.
JOSEPH LANGLEY, CHARLOTTE LANGLEY AND SUMMIT HOME INSURANCE COMPANY, APPELLEES
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A genuine issue of material fact exists regarding whether the defendant breached her duty of care and whether her conduct was the proximate cause of the child's injury.
[1] A person who gratuitously agrees to care for another's child has a legal duty to exercise reasonable care in protecting the child from reasonably foreseeable harm.
[2] Genuine issues of material fact regarding a breach of duty and proximate cause preclude summary judgment in a negligence action.
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Join FLexlaw to unlock all legal intelligenceCharlotte Langley agreed to babysit the plaintiffs' children. Her son invited a friend with a BB gun over, and the children were allowed to play with …
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HOBSON, Acting Chief Judge.
The plaintiffs, Jason Barfield, a minor, by and through his father, Roger Barfield, and Roger Barfield, individually, appeal a final summary judgment order entered in favor of the defendants, Joseph and Charlotte Langley, husband and wife, and their insur er, Summit Home Insurance Company, in a personal injury action. We reverse and remand because genuine issues of material fact exist.
The following factual picture, including its pertinent conflicting portions, may be drawn from the evidence adduced through discovery prior to rendition of the final summary judgment order: Charlotte Langley agreed with Jane Barfield, Roger’s wife, to take care of the Barfields’ children, Jason, then age eight, and Allison, then age three, at the Langleys’ home in Lakeland, Florida, during the afternoon of November 22, 1980. After Charlotte picked up Jason and Allison that afternoon at the Barfields’ house and returned with them to the Lang-leys’ home, Charlotte’s son Joey, then age nine, phoned his friend Shane Peacock, then age nine, and told him to come over with his BB gun.
After hanging up the phone, Joey went outside with his own BB gun in Jason’s company in order to wait for Shane. Charlotte and Joey testified in respective depositions that she did not know that he took his BB gun outside with him. But Jason said that she did know that Joey took his gun outside with him.
Shortly thereafter, Shane arrived at the Langleys’ residence with his BB gun. Charlotte said that he left the gun on the porch pursuant to her command that he do so if he wanted to play outside with Jason and Joey. Shane also stated in a deposition that he left his gun on the porch when he arrived. However, he indicated that he did so without being instructed to do so by Charlotte. Moreover, he said that just before leaving the Langleys’ home to play in a field with Jason and Joey, he retrieved it and told Charlotte that he had it with him. He added that Charlotte knew that both he and Joey were using their guns, but did not say anything about their using them.
Approximately one-half hour after his arrival, Shane fired his BB gun from a foxhole in the direction of another foxhole in which Jason and Joey were situated. The pellet ricocheted off of a board located near Jason and Joey’s foxhole and struck Jason by the right eye, causing permanent injury.
Appellants subsequently filed a complaint against appellees, alleging negligence. The court below expressly found in its final summary judgment order that no genuine issues of material fact need to be decided by the trier of fact. We disagree.
It is axiomatic that an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care. See, e.g., Banfield v. Adington, 104 Fla. 661, 140 So. 893 (1932); Fidelity & Casualty Co. of New York v. L.F.E. Corp. and J.E. Greiner Engineering Services, Inc., 382 So. 2d 363, 367 (Fla. 2d DCA 1980); Kaufman v. A-1 Bus Lines, Inc., 416 So. 2d 863 (Fla. 3d DCA 1982); Padgett v. School Board of Escambia County, 395 So. 2d 584 (Fla. 1st DCA 1981). See generally, Fla. Jur. Negligence, § 13; Restatement Torts 2d, §§ 323, 324A (1965). The evidence shows here that Charlotte agreed to take care of Jason 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 protect them from foreseeable hazards and harm.
A genuine issue of material fact exists here for the trier of fact in regards to whether Charlotte breached her duty.
Assuming that the trier of fact finds that Charlotte did breach her duty, there also exists a genuine issue of material fact for the trier of fact with respect to whether her conduct was the proximate cause of Jason’s injury. The court below found in its final summary judgment order that the shot fired from Shane’s BB gun was “the sole and proximate cause” of Jason’s injury. By so finding, the court erred. As our state supreme court remarked in Gibson v. Avis Rent-A-Car Systems, Inc., 386 So. 2d 520, 522 (Fla.1980):
While the holding of the courts below that [the third party’s] conduct was the sole cause may be seen as correct from the standpoint of physical causation, the question of whether to absolve a negligent actor of liability is more a question of responsibility. [Citations omitted.] If an intervening cause is foreseeable, the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact. [Citations omitted.]
Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
DANAHY and SCHOONOVER, JJ„ concur.
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L.A. Fitness Int'l, LLC v. Julianna Tringali Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008)…that an action undertaken for the benefit of another, even gratuitously, be performed in accordance with an obligation to exercise reasonable care. See Vendola v. S. Bell Tel. & Tel. Co., 474 So. 2d 275, 278 (Fla. 4th DCA 1985); Barfield v. Langley, 432 So. 2d 748, 749 (Fla. 2d DCA 1983). This principle can be found at Restatement of Torts (Second) § 323, which states: One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection…
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Vendola v. S. Bell Tel. & Tel. Co., 474 So. 2d 275 (Fla. 4th DCA 1985)…hese calls, Southern Bell exposed itself to that venerable principle of law that an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care. Barfield v. Langley, 432 So. 2d 748 (Fla. 2d DCA 1980). As long ago as 1909 our Supreme Court held that where a water company undertakes to render the public service of furnishing water for fire protection in a city, an individual may maintain an action against the company for damage…
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Eleonora Bianca Roos v. Morrison, 913 So. 2d 59 (Fla. 1st DCA 2005)…te court decisions of Bessett and Sisam). Florida law clearly recognizes that “an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care.” Barfield v. Langley, 432 So. 2d 748, 749 (Fla. 2d DCA [*65] 1983) (relying on various cases, including Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932), and Padgett v. Sch. Bd. of Escambia County, 395 So. 2d 584 (Fla. 1st DCA 1981)). This principle was recognized by the Florida…
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
- Gibson v. AVIS Rent-A-Car Sys., Inc., 386 So. 2d 520 (Fla. 1980)
- Banfield v. Addison S. Addington and Daisy T. Addington, 104 Fla. 661 (Fla. 1932)
- Padgett v. The Sch. Bd. OF Escambia Cnty., 395 So. 2d 584 (Fla. 1st DCA 1981)
- The Fid. & Cas. Co. OF NEW York v. L. F. E. Corp. & J. E. Greiner Eng'g Scis., Inc., 382 So. 2d 363 (Fla. 2d DCA 1980)
- Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981)
- Rae Kaufman v. A-1 BUS Lines, Inc., 416 So. 2d 863 (Fla. 3d DCA 1982)
- L. D. H. v. State, 416 So. 2d 863 (Fla. 3d DCA 1982)