Perez v. Rodriguez

204 So. 3d 92, 2016 Fla. App. LEXIS 16765
CourtDistrict Court of Appeal of Florida
DecidedNovember 9, 2016
DocketNos. 4D14-935, 4D14-1250, 4D14-3656
StatusPublished
Cited by1 cases

This text of 204 So. 3d 92 (Perez v. Rodriguez) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Rodriguez, 204 So. 3d 92, 2016 Fla. App. LEXIS 16765 (Fla. Ct. App. 2016).

Opinions

CIKLIN, C.J.

William and Marcia Perez (“the Per-ezes”), as Personal Representatives of the Estate of Daniel Alejandro Perez (“Danny”), appeal a final judgment in favor of Enrique Rodriguez, Sr. (“Mr. Rodriguez”) and Lori Baglio Rodriguez (“Mrs. Rodriguez”). Mr. and Mrs. Rodriguez cross-appeal orders denying each of their motions for attorney’s fees and costs. -We affirm on all issues raised by the parties, but we write to address the grant of summary judgment on a negligent supervision claim brought against Mrs. Rodriguez.

The instant appeal arises from a wrongful death action brought against the Rodri-guezes by the Perezes after their son, Danny, was killed by injuries sustained in a tragic accident when Danny fell, off of an all-terrain vehicle (“ATV”) driven, by the Rodriguezes’ son, Ricky, who was not injured. Both boys were sixteen at the time of the incident, and neither boy was wearing a helmet.

The facts that follow were revealed largely through the deposition testimony of various parties añd experts involved in the case. The ATV that the boys were riding is owned by Mr. Rodriguez. It is capable of traveling up to approximately 65 miles per hour and was designed for a single rider. The ATV was a surprise gift for Ricky. Mr. Rodriguez never rode on the subject ATV, and Mrs. Rodriguez rode on it with Ricky twice, but did not wear a helmet on those occasions. Prior to the incident, no one other than Mrs. Rodriguez rode as a passenger on the ATV.

Ricky was required to ask for permission before riding his ATV and was not [94]*94allowed to ride it unless one of his parents was home. Before the incident, Ricky had not. disobeyed his parents with regard to the ATV. The Rodriguezes moved into a new home in Southwest Ranches approximately two days before the incident, but had stored Ricky’s ATV as well as another ATV at their new home for several months prior to the move. At their previous home in Davie, the ATV keys were kept in a desk drawer with a lock and key. Thus, prior to the move, Ricky could not access his ATV unless one of his parents drove him to their Southwest Ranches home. Once they moved into the Southwest Ranches home, the ATV keys were kept in an unlocked drawer in Mrs. Rodriguez’s office.

On the day of the incident, Danny’s father dropped him off at the Rodriguezes’ new home. Ricky’s mother was home at the time, but his father was not. Danny had been a guest at the Rodriguezes’ prior residence approximately five times in the past. At some point on the fateful day, while the boys were swimming, Danny requested to ride the Rodriguezes’ ATVs, but Ricky said no, indicating that he was not allowed. Ricky’s mother then served lunch to the boys and told them to get out of .the pool and call Danny’s parents. She was leaving soon to run errands and did not want the boys home alone together. She left the boys at the house around 3:30 p.m. A few minutes later, she called Ricky and confirmed that Danny had called his father, and Ricky assured her that Danny would leave when they finished eating lunch. Prior to that day, Mrs. Rodriguez had never left Ricky at home alone with a friend.

Approximately forty-five minutes later, the boys went into the garage, at which point Danny again requested to ride the ATVs and Ricky, this time, was agreeable. Ricky had one helmet, but it did not fit Danny, so he did not wear it. Ricky did not wear the helmet because he did not want the helmet to hit Danny in the head, since Danny would not be wearing a helmet.

Danny wanted .to ride one ATV while Ricky rode the other, but Danny was wearing shorts and Ricky didn’t want him to burn his legs on the exhaust. As a result, they agreed that Danny would ride on the back of Ricky’s ATV, since his legs would not hit the exhaust while riding as a passenger. While traversing neighboring lots, Danny let go a few times before the accident, and Ricky instructed him to hold on tight, with Danny’s arms around Ricky’s waist.

When the accident occurred, the boys were riding on a grassy shoulder off of 172nd Avenue. Ricky felt Danny’s grip release and Danny fell off of the ATV. Ricky then ran to him and began administering CPR. Sadly, Danny never regained consciousness. An internal autopsy was not performed, but a forensic pathologist performed an external examination and determined that Danny died from blunt force trauma to the head. He opined that fractures to Danny’s skull and neck were caused by his head striking soft ground. It is unclear why Danny fell off of the ATV, The investigating detective opined that the ATV was traveling at approximately 20-30 miles per hour at the time of the accident and that the accident was not the result of driver error.

Following the accident, the Perezes filed a complaint against the Rodriguezes asserting, among other claims, a count for negligent supervision against Mrs. Rodriguez. Mrs. Rodriguez moved for final summary judgment contending that, in accordance with Florida law, she was under no duty to supervise the sixteen-year-olds. As to this issue, the trial court granted summary judgment, reasoning as follows:

[95]*95At the hearing the Defendants[] contest[ed] the Plaintiffs’ assertion that because the boys were minors, the Defendants[] were negligent in. supervising them. . The Plaintiffs claim that the Defendants owed their son a duty of reasonable care as a social visitor in their home, and that when Ricky’s mother received Danny at the door she undertook a duty to supervise him as a minor in her care. The Plaintiffs also claim that the Defendants failed to supervise their own son Rick[ ]y on the day of the accident. Florida courts have recognized that adults have a' duty, as ordinary prudent persons, to watch over and supervise children too young to exercise judgment to care for themselves and protect them from foreseeable hazards and harm, Orlando Sports Stadium, Inc, v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981). This Court finds that a 16-year-old is not “too young to exercise judgment.” Thus, the Defendants should not be held liable for the supervision of the Plaintiffs’ son when he was a visitor in their home.

On appeal, the Perezes argue that the trial court erred in entering summary judgment on the negligent supervision claim because material issues of fact precluded summary judgment. We must disagree.

“The existence of a duty of care is generally a question of law to be determined by the court....” Schwartz v. Wal-Mart Stores, Inc,, 155 So.3d 471, 473 (Fla. 5th DCA 2015). “The general rule is that a party has no legal duty to ‘prevent the misconduct of third persons,’” K.M. ex rel. D.M. v. Publix Super Markets, Inc., 895 So.2d 1114, 1117 (Fla. 4th DCA 2005) (quoting Michael & Philip, Inc. v. Sierra, 776 So.2d 294, 297 (Fla. 4th DCA 2000)). “ ‘Florida courts have long been loath[ ] to impose liability based on a defendant’s failure to control the conduct of a third party.’ ” Id. (quoting Boynton v. Burglass, 590 So.2d 446, 448 (Fla. 3d DCA 1991)).

It is “ ‘basic and established law that a parent is not liable for the tort of a minor child because of the mere fact of paternity.’” Snow v. Nelson, 475 So.2d 225, 226 (Fla.1985) (quoting Gissen v. Goodwill, 80 So.2d 701, 703 (Fla.1955)). However, there are four broadly defined exceptions wherein a parent may incur liability:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
204 So. 3d 92, 2016 Fla. App. LEXIS 16765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-rodriguez-fladistctapp-2016.