Alves v. Adler Built Industries, Inc., 77-1363, 77-1364, 78-45 and 78-106

77-1363, 77-1364, 78-45 and 78-106 | Fla. Dist. Ct. App. | Jan 9, 1979

366 So. 2d 802" court="Fla. Dist. Ct. App." date_filed="1979-01-09" href="https://app.midpage.ai/document/alves-v-adler-built-industries-inc-1607906?utm_source=webapp" opinion_id="1607906">366 So. 2d 802 (1979)

Elvin ALVES and Alicia Alves, Appellants,
v.
ADLER BUILT INDUSTRIES, INC., a Florida Corporation, North Causeway Townhouses, Inc., a Florida Corporation, and Morton Adler, Individually, Appellees.

Nos. 77-1363, 77-1364, 78-45 and 78-106.

District Court of Appeal of Florida, Third District.

January 9, 1979. Rehearing Denied February 12, 1979.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Robert Sussman, Hialeah, for appellants.

Frates, Floyd, Pearson, Stewart, Richman & Greer and Scott D. Sheftall; Marlow, Shofi, Ortmayer, Smith & Spangler; Adams & Ward and Amy Shield Levine, Miami, Sidney B. Shapiro, North Miami Beach, for appellees.

Before HENDRY, BARKDULL and KEHOE, JJ.

PER CURIAM.

These consolidated appeals question the propriety of three summary judgments in a negligence action. Joyce Alves, a two-year-old child, drowned while playing in and about a sand pile adjacent to a lake on property next to her parents' home.

We affirm because the negligence of the defendants, if any (which we do not rule upon), was not the proximate cause of the accident. The negligence on the part of the parents in failing to properly supervise 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" court="Fla." date_filed="1970-07-01" href="https://app.midpage.ai/document/orefice-v-albert-1824679?utm_source=webapp" opinion_id="1824679">237 So. 2d 142 (Fla. 1970); Perotta v. Tri-State Insurance Company, 317 So. 2d 104" court="Fla. Dist. Ct. App." date_filed="1975-06-24" href="https://app.midpage.ai/document/perotta-v-tri-state-insurance-company-1718238?utm_source=webapp" opinion_id="1718238">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 under review are hereby affirmed.

Affirmed.

KEHOE, J., dissents.

NOTES

[1] Chuck K. Davis (the construction superintendent) took the child home on at least one occasion and gave her to her mother. Vincent Pepe (the watchman) took her home a couple of times and told the people the child was near the water. Bertram M. McCall (a laborer) took her home from the site on at least two or three occasions.