ROBERT C. GATES, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, DONALD J. GATES, AND DONALD J. GATES, INDIVIDUALLY, APPELLANTS,
v.
IRVING FIEN, D/B/A FINE POTATO CHIP CO. AND D/B/A WISE POTATO CHIPS, AND HARRY E. HAYTOCK, APPELLEES
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The court affirmed a summary judgment dismissing a negligence action brought by a minor injured when he jumped onto the rear of a moving truck. The court held that the truck driver had no duty to avoid injuring a trespasser of whose presence he was unaware and who could not reasonably be foreseen.
The court held that summary judgment was proper because the driver had no reason to know of the minor's presence on the truck and there were no peculiar circumstances that should have reasonably alerted the driver to the possibility of child trespassers. A defendant must be aware of a trespasser's presence to have a duty to avoid causing willful or wanton injury, unless there are peculiar circumstances suggesting children are likely to trespass.
“The defendant must be aware of the trespasser in order to avoid causing wilful or wanton injury 'unless there is something peculiar in the situation which should reasonably lead him to know that children are trespassing.'”
Establishes the standard for a defendant's duty to a child trespasser—awareness or peculiar circumstances indicating the likelihood of child trespassers.
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Join FLexlaw to unlock all legal intelligenceRobert C. Gates, a minor, was injured when he jumped upon the rear of a moving truck driven by Irving Fien. There was no evidence that the driver knew…
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This case involves the validity of a summary final judgment releasing the driver of a truck and his employer from a cause of action, wherein it was alleged that the minor plaintiff was injured when he jumped upon the rear of the truck [while it was moving] and was subsequently injured.
The record fails to reveal that the driver had any reason to believe that the minor plaintiff was on the truck; no such event had occurred in the past, and the circumstances fail to reveal any reason why he should have known that the minor plaintiff was going to trespass on his vehicle. We affirm the summary final judgment upon the reasoning of the Second District Court of Appeal in Green v. Manly Const. Co., Fla.App.1964, 159 So.2d 881, wherein in a similar situation they said:
“ * * * The defendant must be aware of the trespasser in order to avoid causing wilful or wanton injury ‘unless there is something peculiar in the situation which should reasonably lead him to know that children are trespassing.’ * *
“Since there was no showing that the defendant driver did know of the minor plaintiff’s presence, and since the record before the trial court does not disclose any peculiar factor which reasonably should have placed the defendant on notice, plaintiffs’ allegations to the contrary constituted no more than a bare conclusion of the pleader. * * * ”
Also see: Ravey v. Healy, 279 Mich. 323, 272 N.W. 692; Meade v. Purity Bakeries Corporation, 115 N.J.L. 471, 180 A. 856; Pinto v. Mr. Softee of New York, Inc., 22 A.D.2d 874, 254 N.Y.S.2d 683; White v. Edwards Chevrolet Company, 186 Va. 669, 43 S.E.2d 870.
Therefore, for the reasons above stated, the summary final judgment here under review be and the same is hereby affirmed.
Affirmed.
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Citator
Cited By
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Verta Fernandez v. Ovidio Edmund Kaba, 360 So. 2d 34 (Fla. 3d DCA 1978)…he plaintiff. It affirmatively appears without genuine issue of material fact that the defendant driver was not guilty of actionable negligence. See Swift v. Century Insurance Company of New York, 264 So. 2d 88 (Fla.3d DCA 1972); and Gates v. Fien, 219 So. 2d 477 (Fla.3d DCA 1969). See also Preger v. Gomory, 55 So. 2d 541 (Fla.1951); Bell v. A. A. Holiday Rent-A-Car, Inc., 304 So. 2d 535 (Fla.3d DCA 1974); and Jackson v. Haney, 124 So. 2d 719 (Fla.2d DCA 1960). Affirmed. KEHOE, J., dissents.…
Authorities Cited
- Green v. Manly Constr. Co., 159 So. 2d 881 (Fla. 2d DCA 1964)