ALFRED PEROTTA ET AL., APPELLANTS,
v.
TRI-STATE INSURANCE COMPANY, ETC., APPELLEES

Fla. 3d DCA | 1975-06-24
No. 74-1428
Before HENDRY, HAVERFIELD and NATHAN, JJ.
317 So. 2d 104 Florida District Court of Appeal, Third District (1975) Caution
Cited by 16 cases

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Synopsis

The Perottas appeal a summary judgment in a personal injury case arising from a rescue at the Sawyers' home. Alfred Perotta was injured while rescuing the Salvatores' young daughter from the Sawyers' pool during a wedding reception. The court affirmed summary judgment, finding that the parents' failure to supervise the child was an active and efficient intervening cause that broke the causal chain between any alleged negligence by the Sawyers and Perotta's injury.


Holding

The court held that the parents' failure to control and supervise their young child in the known pool area constituted an active and efficient intervening cause that broke the chain of proximate causation between any negligence by the Sawyers and Perotta's injury. Therefore, the question of proximate cause was properly determined by the court as a matter of law, and summary judgment was appropriate.


Headnotes

[1] The rescue doctrine allows an injured rescuer to recover from the person whose negligence created the peril necessitating the rescue.

[2] A homeowner owes a duty of reasonable care to a social guest, including maintaining the premises in a reasonably safe condition.

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Key Quotes

“The rescue doctrine, herein involved, generally is that one who is injured in reasonably undertaking a necessary rescue, may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue.”

Establishes the legal framework under which Perotta sought recovery for his rescue attempt.

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Facts & Procedural History

The Perottas attended a wedding reception at the Sawyers' home. The Salvatores brought their two-and-a-half-year-old daughter Terri, who was not expre…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Alfred Perotta and Marie, his wife, appeal from an adverse summary judgment terminating a personal injury lawsuit against William Sawyer and Edith, his wife, and the Sawyers’ insurance carrier, Tri-State Insurance Company.

The ultimate issue presented is whether the trial court erred in finding there was no genuine issue of material fact and, therefore, as a matter of law, the Sawyers and their insurance company were entitled to a summary judgment in their favor. The facts are not materially in dispute. The Perottas were invited and attended a wedding reception at the Sawyers’ home in honor of the Sawyers’ daughter. Also invited were Mr. and Mrs. Salvatore who brought with them their two and one-half year old daughter, Terri. There was no express invitation extended to the Salva-tores’ daughter, although there were older children on the premises. The wedding reception was being held in the afternoon. To accommodate the guests, all of the areas of the house were opened which included a screened patio/pool area with tables nearby for such guests. The pool itself, which was inside the screened area, had a string of fish net between two posts along the length of the pool on the side closest to the house. The two ends of the pool had no barriers. For some length of time Terri was supervised in the patio/pool area by her parents and grandparents; however, during a lapse of attention by the parents, Mrs. Salvatore observed Terri walking precariously on the coping tile at the edge of the pool. Mrs. Salvatore “yelled a warning to Terri.” Then Terri started to run, slipped and fell into the pool. Alfred Perotta, observing the incident, ran to little Terri’s rescue, & jumped into the pool to save her, but unfortunately he landed in the shallow end thereof, causing injuries to himself. Terri was extricated, unharmed from the pool by Perotta.

The rescue doctrine, herein involved, generally is that one who is injured m reasonably undertaking a necessary rescue, may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue. 57 Am. Jur.2d, Negligence, § 227 et seq. There may well be an issue of fact as to whether Terri was a social guest or uninvited licensee. Assuming she was a social guest, the Sawyers owed a duty of reasonable care under the circumstances and a duty to maintain the premises in a reasonably safe condition. In any event, irrespective of the duty herein involved, in order for the Sawyers to be liable for the injury of Per-otta, it must be shown that the Sawyers’ negligence was the proximate cause of the injury. Perotta does not complain of any visible or latent defect in the pool or pool area, but contends that the Sawyers should have barricaded the pool. We do not agree. Here the parents’ failure to control and supervise their two and one-half year old child when they placed the child in the pool area, which they not only observed on the day of the incident but knew was there before they brought the child on the premises, constituted an active and efficient intervening cause. 59 Am.Jur.2d, Parent and Child, § 14, p. 97 states:

“A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent’s duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repository of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary.”

Under the facts in this case and in view of the active and efficient intervening cause, we find that the question of proximate cause was a proper one for the court to determine. Kwoka v. Campbell, Fla.App. 1974, 296 So. 2d 629. We are of the opinion, therefore, that there is no genuine issue of material fact raised and that the trial court was correct in entering summary judgment as a matter of law.

Affirmed.


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Citator

Cited By

  • Kinya v. Lifter, Inc., 489 So. 2d 92 (Fla. 3d DCA 1986)
    …e 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 Lifter was not negligent; therefore, they never reached the issue of the parents’ comparative negligence. The trial'court did not…
  • Walt Disney World Co. v. Marietta Goode, 501 So. 2d 622 (Fla. 5th DCA 1986)
    …that implies a duty on the part of the owner of premises to warn parents of young children that the latter may drown in water over their heads. That is an obvious danger parents are responsible to know. See, e.g., Perotta v. Tri-State Insurance Co., 317 So. 2d 104 (Fla. 3d DCA 1975), cert. denied, 330 So. 2d 20 (Fla.1976). In the instant case, Mrs. Goode, the mother, had actual knowledge of the existence of the moat, having taken the swan boat ride earlier in their visit. . Interestingly enough, Disney has n…
  • …ervise the two-year-old child, when they were on notice of the propensity of the child to play in and about the sand pile, was the proximate cause of her demise.1 Orefice v. Albert, 237 So. 2d 142 (Fla.1970); Perotta v. Tri-State Insurance Company, 317 So. 2d 104 (Fla. 3d DCA 1975); 59 Am.Jur.2d, Parent and Child, § 14. In view of our ruling as to the proximate cause being a bar to this action, the other points raised in the several briefs have not been considered. Therefore, the summary judgments here unde…

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