JULIUS SPECTOR ET AL., APPELLANTS,
v.
HAROLD NEER ET AL., APPELLEES
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The court affirmed dismissal of a negligence action brought by property owners against parents for damages caused by fire set by the parents' minor child. The court held that while parents may be liable for certain torts of their minor children under specific exceptions, the plaintiff's complaint failed to adequately allege facts supporting those exceptions.
The trial court properly dismissed the complaint because it failed to adequately allege facts supporting the recognized exceptions to parental immunity for a minor child's torts. While parents may be liable when they entrust a child with a dangerous instrumentality or fail to exercise parental control, the complaint did not allege either exception sufficiently—specifically, it did not allege the child had a habit of setting fires or that there was a connection between parental failure and the resulting injuries.
[1] A parent is not liable for the torts of their minor child solely due to the parent-child relationship.
[2] A parent may be liable for a minor child's torts if the parent entrusts the child with an instrumentality that poses a danger due to the child's age, judgment, or experie…
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Join FLexlaw to unlock all legal intelligence“It is basic and established law that a parent is not liable for the torts of his minor child because of the mere fact of his paternity. However, under Gissen v. Goodwill, Fla.1955, 80 So.2d 701, certain broadly defined exceptions exist under which a parent may incur liability.”
Establishes the general rule of parental immunity and the exceptions available
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Join FLexlaw to unlock all legal intelligenceJulius Spector, Louis Spector, and Elmore Spector (owners of a lot and dwelling house) and South Store Corporation (landlord) sued Harold Neer and Rit…
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Julius Spector, Louis Spector and El-more Spector, d/b/a Spector & Sons, as owners of lot and dwelling house, and South Store Corporation, as landlord, sued the defendants, Harold Neer and Rita Neer, parents of a minor child, Hurley Neer, along with the parents’ insurance company, Lititz Mutual Insurance Company, alleging negligence against Harold Neer and Rita Neer for allowing their minor child to be entrusted with matches which resulted in damage by fire to a dwelling house in which the said parents were living. The trial court granted defendants’ motion to dismiss the plaintiffs’ amended complaint with leave to amend. Plaintiffs, however, failed to file a second amended complaint and stood on their original amended complaint. A final judgment of dismissal was entered against the plaintiffs.
*690Appellants contend that the trial court committed error in dismissing the amended complaint because it did state a cause of action against the parents of the minor child; that the amended complaint contained allegations as to the parents’ negligence was sufficiently pled and that there were issues for the jury to decide; that Spector & Sons did have a cause of action against the Neers as no privity was needed since Spector & Sons was a third-party beneficiary to the leasehold agreement between the South Store Corporation and Spector & Sons.
It is basic and established law that a parent is not liable for the torts of his minor child because of the mere fact of his paternity. However, under Gissen v. Goodwill, Fla.1955, 80 So.2d 701, certain broadly defined exceptions exist under which a parent may incur liability. The pertinent exceptions under the instant case are: (1) Where parent entrusts his child with an instrumentality which, because of the lack of age, judgment or experience of the child, may become a source of danger to others. (2) Where parent fails to exercise parental control over his minor child, although he knows or in the exercise of due care should have known that injury to another is a probable consequence.
Although the above exceptions are viable, the plaintiffs’ amended complaint does not sufficiently state a cause of action. The fact that Hurley had a habit of doing the particular type of wrongful act which resulted in the injuries is not alleged, nor does the amended complaint state that Hurley ever set fire to anything. A connection between the alleged failure of parental control and the resultant injuries is never made, and more particularly, the amended complaint never charges actionable negligence. It is clear, therefore, from a reading of the amended complaint that the parents do not fall within the exceptions of Gissen because the amended complaint is insufficient to state a cause of action under these rules.
Appellants’ second contention that a cause of action or privity was shown between Spector & Sons and the Neers need not be decided because the above mentioned failure of the amended complaint to state a cause of action under the Gissen exceptions renders this point moot.
Affirmed.
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Gargano v. Liberty Mut. Ins. Co., 384 So. 2d 220 (Fla. 3d DCA 1980)…action of negligent entrustment of a motor vehicle to a minor child resulting in damages caused by the minor’s negligent operation of the motor vehicle necessarily arises from the ownership, operation, or use of said motor vehicle, Spector v. Neer, 262 So. 2d 689 (Fla. 3d DCA 1972), and, accordingly, falls squarely within the above exclusion in the subject policy. Hanover Insurance Co. v. Grondin, 119 N.H. -, 402 A. 2d 174 (1979); Lumbermens Mutual Casualty, Co. v. Kosies, 124 Ariz. 136, 602 P. 2d 517 (Ct.Ap…
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S. Am. Fire Ins. Co. v. Maxwell, 274 So. 2d 579 (Fla. 3d DCA 1973)…uld have known that injury to another is a probable consequence. Gissen v. Goodwill, Fla.1955, 80 So. 2d 701; Bullock v. Armstrong, Fla.App.1965, 180 So. 2d 479; [*581] Seabrook v. Taylor, Fla.App.1967, 199 So. 2d 315; Spector v. Neer, Fla.App.1972, 262 So. 2d 689. The first category exception is the one upon which appellees rely to attach legal culpability to the parents of the child here concerned. This exception to the parent-child tort rule would appear to be based on the direct negligence of the parent.…
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Snow v. Nelson, 450 So. 2d 269 (Fla. 3d DCA 1984)…continued, “that the child here involved had a propensity to swing or slam doors at the hazard of persons using such doors,” id., and, with a 4-0 ruling, affirmed the trial court’s dismissal of the complaint, see id. at 706; accord Spector v. Neer, 262 So. 2d 689 (Fla. 3d DCA 1972).6 The supreme court’s analysis was not well received by contemporary commentators, one noting that [*274] the result is a rather inequitable one. While the parent, in this state, is not liable for the torts of his minor because o…
Authorities Cited
- Townsend v. State, 80 So. 2d 701 (Fla. 1955)