Gissen v. Goodwill

80 So. 2d 701
CourtSupreme Court of Florida
DecidedApril 29, 1955
StatusPublished
Cited by39 cases

This text of 80 So. 2d 701 (Gissen v. Goodwill) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gissen v. Goodwill, 80 So. 2d 701 (Fla. 1955).

Opinion

80 So.2d 701 (1955)

Julius GISSEN, Appellant,
v.
Albert GOODWILL and Mrs. Albert Goodwill, Appellees.

Supreme Court of Florida. Special Division A.

April 29, 1955.

*702 Louis Vernell and Sherman & Bellman, Miami Beach, for appellant.

Dixon, DeJarnette, Bradford & Williams, Miami, for appellees.

KANNER, Associate Justice.

The trial court entered judgment against the appellant, Julius Gissen, for his failure to state a cause of actionable negligence against the appellee parents, Albert Goodwill and Mrs. Albert Goodwill, for injury inflicted by their minor child, Geraldine Goodwill, upon the appellant. The appeal is from this judgment.

This Court has dismissed the minor child as a party to this appeal for lack of jurisdiction. Gissen v. Goodwill, Fla., 74 So.2d 86.

It is averred in the second amended complaint that at the time of the appellant's injury, he was employed as a clerk at the Gaylord Hotel in the City of Miami Beach, Florida, and the appellees were residing as business invitees at the same hotel; that the minor child, Geraldine Goodwill, 8 years of age, "did wilfully, deliberately, intentionally and maliciously" swing a door "with such great force and violence against the plaintiff so that the middle finger on plaintiff's left hand was caught in the door and a portion of said finger was caused to be instantaneously severed and fell to the floor." It is further averred that

"owing to a lack of parental discipline and neglect in the exercise of needful paternal influence and authority, the defendants, Albert Goodwill and Mrs. Albert Goodwill carelessly and negligently failed to restrain the child, Geraldine Goodwill, whom they knew to have dangerous tendencies and propensities of a mischievous and wanton disposition; that said parents had full knowledge of previous particular acts committed by their daughter about the hotel premises, such as striking, knocking down and damaging objects of furniture and furnishings and disturbing and harassing the guests and employees of the hotel and that the defendant Geraldine Goodwill did commit other wanton, wilfull and intentional acts of a similar nature to the act committed against the plaintiff, such as striking guests and employees of the aforesaid hotel, which acts were designed or resulted in injury, so that the child's persistent course of conduct would as a probable consequence result in injury to another. Said parents, nevertheless, continually failed to exercise any restraint whatsoever over the child's reckless and mischievous conduct, thereby sanctioning, ratifying and consenting to the wrongful act committed by the defendant, Geraldine Goodwill, against the plaintiff herein."

This is a case of first incidence in this Court's jurisdiction, posing as it does the problem of whether the specific set of circumstances here can render the parents of the minor child accountable at law for the tort alleged to have been committed by the child.

*703 It is basic and established law that a parent is not liable for the tort of his minor child because of the mere fact of his paternity. 39 Am.Jur., sec. 55, p. 690; and 67 C.J.S., Parent and Child, § 66, p. 795. However, there are certain broadly defined exceptions wherein a parent may incur liability: 1. Where he intrusts 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 a child, in the commission of a tortious act, is occupying the relationship of a servant or agent of its parents. 3. Where the parent knows of his child's wrongdoing and consents to it, directs or sanctions it. 4. Where he 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. 39 Am.Jur., secs. 56, 57, 58, 59, pp. 692-697; 67 C.J.S., Parent and Child, §§ 67, 68, pp. 797-800; and Steinberg v. Cauchois, 249 App.Div. 518, 293 N.Y.S. 147.

Analyzing this problem in the light of the exceptions for parent liability enumerated, one may note that the exceptions relating to instrumentality intrusted to a child, to master and servant or agent relationship, and to parental consent or sanction of a tortious act by the child do not bear upon the circumstances here involved. It is only the fourth category which may be logically analyzed for the purpose of determining whether legal culpability might be attached to the parents of the child here concerned, and it is on this exception to the general rule that the appellant relies.

It is the position of the appellees that the appellant has not succeeded in alleging sufficiently that the appellee parents failed in the duty imposed upon them to exercise parental discipline and control over their 8 year old daughter with relation to a specific act which she was in the habit of doing and which caused the injury complained of; and that the failure so to do is fatal and thereby actionable negligence is not charged.

In the Restatement of the Law, sec. 316, pp. 858, 859, on the subject of Torts, dealing with the duty of the parent to control the conduct of his child, it is said, "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

"(a) knows or has reason to know that he has the ability to control his child, and

"(b) knows or should know of the necessity and opportunity for exercising such control."

An analysis of cases related to or bearing upon the type of case that we have here is necessary in order to determine whether the second amended complaint states a cause of action or whether it is deficient for the reason urged by the appellees.

In the case of Bateman v. Crim, D.C. Mun.App., 34 A.2d 257, the question concerned the liability of the parents of two boys, 10 and 12 years of age, who, while playing on the sidewalk with a football, collided with plaintiff, injuring her. The court instructed verdict for the parents, which verdict was affirmed on appeal. Plaintiff claimed that a parent's failure to exercise proper supervision, notwithstanding lack of evidence of prior unrestrained conduct, renders liability to parents for acts of a minor which would have been averted through adequate supervision and that whether proper supervision had been employed was in such case a question of fact for the jury. Nevertheless, the court stated that there was no evidence that either boy had previously played with a football on public streets or conducted himself in a disorderly manner; and that in order to attribute to a parent responsibility for injuries resulting from his minor child's wrongful deed, parent's negligence in exercising parental restraint must have some specific relation to the act complained of, and that such was lacking in this case.

The parents were charged, in the case of Steinberg v. Cauchois, 249 App.Div. 518, *704 293 N.Y.S. 147, with negligence in permitting their minor child to operate a bicycle on the sidewalk in violation of a city ordinance, with the result that the infant plaintiff was struck and injured by the bicycle.

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80 So. 2d 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gissen-v-goodwill-fla-1955.