THOMAS ROBERT GALE, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, ROBERT GALE, AND ROBERT GALE, INDIVIDUALLY, APPELLANTS,
v.
FRED TUERK AND ADRIANA TUERK, APPELLEES

Fla. 4th DCA | 1967-06-20
No. 545
CROSS, J., and MacMILLAN, HUGH, Associate Judge concur.
200 So. 2d 261 Florida District Court of Appeal, Fourth District (1967) Positive Treatment
Cited by 16 cases

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Synopsis

The court reversed the dismissal of a negligence action brought by an 11-year-old guest injured at a birthday party when struck in the eye by a sea grape shot from a slingshot provided by the defendant hostess. The court held that the defendant, as a licensor, owed the young licensee a heightened duty of care including a duty to refrain from wanton or willful conduct, and that the complaint adequately stated a cause of action by alleging the defendant knowingly allowed dangerous activity involving children.


Holding

The court held that a licensor owes a licensee a duty to refrain from wanton negligence or willful misconduct, and this duty is heightened when the licensee is a child whose tender years and immaturity must be considered. The plaintiffs stated a sufficient cause of action by alleging the defendant knowingly allowed dangerous activity with dangerous implements in violation of this duty.


Key Quotes

“A licensor owes a licensee a duty to refrain from wanton negligence or willful misconduct which would injure him and to refrain from intentionally exposing him to danger.”

Establishes the core duty owed by a host to a social guest, which is the basis for the negligence claim.

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Facts & Procedural History

The defendant Adriana Tuerk invited 11-year-old Thomas Robert Gale to a birthday party at her home where approximately 15 boys of similar age attended…

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Opinion of the Court
WALDEN, Chief Judge.

WALDEN, Chief Judge.

This is a negligence action. Appellants were the plaintiffs and appellees, the de*262fendants. The trial court dismissed plaintiffs’ third amended complaint with prejudice. Plaintiffs appeal. We reverse.

Our task on appeal is to determine if plaintiffs’ third amended complaint states a cause of action. In this connection we are limited to a review of the material contained within the four corners of the complaint and must accept the well plead allegations of the complaint as true. Maloy, Fla.Appellate Proc. & Prac., § 10.06.

Plaintiffs allege that, at the invitation of the defendant, the minor plaintiff, Thomas Robert Gale, age 11 years, attended a birthday party given by the defendant at her home for her son. There were approximately 15 boys of like age in attendance.

Defendant personally planned and supervised the party and guests. She presented each of the guests with a metal slingshot as a birthday party favor. She was physically present and aware that the children were shooting sea grapes at one another with these slingshots.

The gravamen of the complaint reflects that, despite her knowledge of the danger involved, the defendant recklessly, wantonly and willfully allowed the children to continue to shoot sea grapes at each other, in her physical presence, without warning the children of the danger or in any way restraining them. She, in fact, encouraged this dangerous activity by allowing the children to proceed to a playhouse on the beach which was used as a “fort” in their sea grape battle. One of the sea grapes struck the right eye of plaintiff, causing injury and subsequent blindness in that eye.

It is well settled that, when a person is a social guest of another, the relation created between the parties is one of li-censor and licensee. 23 Fla.Jur., Negligence, § 56; 18 Fla.Law & Practice, Negligence, § 11. And this relation exists even though the injury complained of is unconnected to the condition of the premises. See annotation, 79 A.L.R.2d 990.

A licensor owes a licensee a duty to refrain from wanton negligence or willful misconduct which would injure him and to refrain from intentionally exposing him to danger. 23 Fla.Jur., Negligence, § 52. Violation of this duty renders the licensor liable to the licensee for his proper damages.

Of course, the precise standard of care or the duty to which a licensor must adhere varies according to the circumstances, one of the most pertinent of which is the age and immaturity of the licensee. It was correctly stated in Adler v. Copeland, Fla.App.1958, 105 So.2d 594, 596, that:

“ * * * The application of this rule is not difficult when the licensee is a mature adult with an understanding and awareness of danger. However, in applying the standards of duty, consideration must be given to the immaturity of the deceased, a five-year-old child. Cf. Burdine’s, Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462; Jackson v. Pike, Fla.1956, 87 So.2d 410. Actions on the part of a landowner which would not be considered a breach of duty toward an adult licensee may be considered willful and wanton acts of negligence when applied to an infant. The degree of care should be commensurate with the attendant facts and circumstances, and in this instance, one of those facts was the tender years of the deceased child. * * * ”

Applying these rules to the complaint at hand, we conclude that plaintiffs have stated a cause of action sufficient to survive a motion to dismiss.

Reversed.

CROSS, J., and MacMILLAN, HUGH, Associate Judge concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • HIX v. Billen, 284 So. 2d 209 (Fla. 1973)
    …and McCAIN, JJ., and GROSSMAN, Circuit Judge, concur. BOYD, J., dissents. . Citing Anno. 79 A.L.R.2d 990; W. Prosser, Law of Torts, 2d ed., § 77 (p. 445) ; Restatement of Torts, § 341 and specific cases set forth in the opinion. . Gale v. Tuerk, 200 So. 2d 261 (Fla.App.4th 1967) ; Wagner v. Owens, 155 So. 2d 181 (Fla. App.2d 1963) (a guest helping to repair an outboard motor) ; Pinson v. Barlow, 209 So. 2d 722 (Fla.App.2d 1968) (helping with the family pickling) ; and like cases.…
  • Graham v. The Great Atl. & Pac. TEA Co., Inc., 240 So. 2d 157 (Fla. 4th DCA 1970)
    …of fact contained in the complaint. We consider here only whether those facts, if proved, would entitle plaintiff to the relief for which she asks. Petterson v. Concrete Construction, Inc., Fla.App.1967, 202 So. 2d 191; Gale v. Tuerk, Fla.App.1967, 200 So. 2d 261; C. D. Utility Corporation v. Maxwell, Fla.App.1966, 189 So. 2d 643; Bailey v. Folks, Fla.App.1966, 182 So. 2d 477. An examination of the plaintiff’s second amended complaint in light of these principles reveals that the following sequence of event…
  • James J. Pinson and wife v. Richard Barlow and wife, 209 So. 2d 722 (Fla. 2d DCA 1968)
    …f being a mere licensee was only owed the duty by the defendants to refrain from wanton negligence or willful misconduct which would injure the licensee and to refrain from intentionally exposing the licensee to danger. Gale v. Tuerk, Fla.App. 1967, 200 So. 2d 261. We, therefore, must determine if there is any genuine issue of a material fact as to whether the defendants were guilty of any negligence. The only possible suggestion of a duty to the plaintiff-wife under the facts of this case would be a duty on…

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