Quest v. JosephQuest v. Joseph
Defendant, Edward Quest, appeals an adverse final judgment and the withholding of execution of judgment on his third party claim for contribution in an action for damages arising out of a motor vehicle pedestrian accident.
On the day in question, plaintiff Daren Joseph, a minor, was riding a tricycle (known as a Big Wheel) down a slight incline of the driveway at his home and into the street, at which time he was struck by a vehicle owned by Edward Quest and driven by his wife, Marion. Leon Joseph, individually and on behalf of Daren, sued Quest, his wife, and their liability insurer for damages as a result of the accident. Eyewitness testimony was conflicting as to whether Daren darted out of the driveway into the path of the oncoming Quest vehicle or whether he had been in the street for a number of seconds before the accident. Nevertheless, it was uncontroverted that Daren‘s mother knew he was riding his Big Wheel down the driveway and into the street. Quest alleged that Daren‘s mоther was negligent in her supervision and filed a third party complaint for contribution against her. The cause was tried by jury which apportioned the negligence amongst the parties as follows:
Leon Joseph 10% Daren Joseph 10% Marion Quest 55% Ellen Joseph 25%
In addition, the jury assessed Daren Joseph‘s total damages at $150,000 and those of his father, Leon, at $17,000. The trial cоurt entered final judgment1 accordingly awarding Daren the net sum of $135,000, his father, Leon, $13,600 and Quest, on his third party complaint, $37,150. However, execution on the $37,150 judgment was stayed until Quest paid the $135,000 and $13,600 judgments. Quest appeals and alleges that the court (1) improperly apportioned the jury verdict, and (2) should have permitted a reduction or set-off of the award against him in the main claim by that amount he recovered on his third party claim against Ellen Joseph. Leon Joseph cross-appeals and urges as error the entry of judgment against his wife, Ellen, for contribution.
The dispositive issue in the case at bar is that presented on cross-appeal, whether or not a right of contribution existed from Ellen Joseph, the mother of the minor child Dаren.
Joseph argues that his wife Ellen is immune from liability by virtue of the family immunity doctrine and therefore cannot be considered a joint tortfeasor from whom Quest is entitled to contribution. See 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979). Nevertheless, our Supreme Court in Shor v. Paoli, 353 So.2d 825 (Fla. 1978), held that the common law doctrine of interspousal immunity does not prevent a tortfeasor from seeking contribution from another tortfeasor under the Uniform Contribution Among Joint Tortfеasors’ Act (
“The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury. “In the case at bar it was determined that both Paoli and Shor caused the injury. Shor‘s husband collected 100% of his damages from Paoli. To say that Shor doesn‘t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.” ... 353 So.2d at 826
Likewise, the instant case does not present a situation where the minor Daren Joseph is suing his mother Ellen for negligence or Leon is suing Ellen as his wife. She as well as Quest was found by the jury to have been negligent, thus having caused Daren‘s injuries. To hold that Ellen does not have to contribute and account for her wrongdoing would be unfair to Quest and a windfall to Ellen. Under the facts of this case we find that Quest is entitled to contribution and judgment was properly entered in his favor on his third party complaint. To the extent that 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), supra, (which we believe is distinguishable on the facts) is inconsistent with the present holding, we hereby rеcede from the holding in 3-M
We next considered Quest‘s arguments on appeal that the trial court improperly apportioned the jury verdict and erred in failing to permit a reduction in the judgment against him.2
Quest having admitted that the abovе arguments have been decided adversely to his position, we find no merit therein. See Metropolitan Dade County v. Asusta, 359 So.2d 58 (Fla. 3d DCA 1978); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976).
For the reasons stated, the judgments on the complaint and cross-complaint are affirmed.
Affirmed.
ON REHEARING EN BANC
Before HUBBART, C.J., and BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN and PEARSON, JJ.
SCHWARTZ, Judge.
Based on the fact that the panel opinion conflicts with and specifically recedes from our prior decision in 3-M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), upon our own motion we orderеd and have heard reargument en banc.
As the panel opinion indicates, our holding to this effect is founded upon the determination in Shor v. Paoli, 353 So.2d 825 (Fla. 1977), that the doctrine of interspousal immunity does not include or preclude a contribution action by a defendant-tort-feasor against the spouse of the injured plaintiff. In Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla. 1980), the supreme court emphatically reiterated this principle in a dеcision which was significantly rendered after it had similarly readhered to the immunity rule itself. Raisen v. Raisen, 379 So.2d 352 (Fla. 1979). Florida is thus a member of the small but growing minority of jurisdictions which have adopted the doctrine that family immunity is merely a bar to the right to sue another and does not affect the status of the negligent family member as a joint-tortfeasor, which, under
The decision in 3-M was not directly contrary to this line of reasoning. Although the opinion admittedly did not articulate this factor, it was based upon the fact that,
In Florida, the responsibility to exercise care so as to avoid exposing one‘s child to the risk of injury4 has been long recognized in a variety of contexts. While the pаrent‘s negligence is of course not imputed to the child in the child‘s independent case for his own damages, e.g., Burdine‘s Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941); Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 So. 183 (1905), inadequate supervision by the plaintiff-parent constitutes a defense — of contributory or comparative negligence — to the parent‘s derivative action for loss of services or expenses caused by the child‘s injury, Jacksonville Electric Co. v. Adams, supra; and in an action tо recover for the child‘s wrongful death. E.g., Winner v. Sharp, 43 So.2d 634 (Fla. 1949); Martinez v. Rodriquez, 410 F.2d 729 (5th Cir.1969); Humphrey v. City of Homestead, 224 So.2d 739 (Fla. 3d DCA 1969), cert. denied, 232 So.2d 178 (Fla. 1969). Indeed, in Alves v. Adler Built Indus. Inc., 366 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 342 (Fla. 1979), we went so far as to hold that the parents’ negligent supervision was
39 Am.Jur. Parent and Child, § 46 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 fоr 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 arе bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary. * * *’
In 25 Am.Jur. Highways 231, it is reported:
`Effect of Negligence of Parent or Custodian. — It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against the known hazards incident to their presence on a street or other public way, and tо permit or suffer such a child to go or be upon a highway unattended may constitute negligence on the part of the parent or custodian, although it does not do so under all circumstances.’
* * * * * *
In applying these general rules `it is a question of fact for the jury to decide whether such lack of supervision was negligence under all the circumstances.’ [e.s]
Furthеrmore, our courts have established the right of the child himself directly to sue another entrusted with his care, such as a school or teacher, for negligent supervision. E.g., Barrera v. Dade County School Board, 366 So.2d 531 (Fla. 3d DCA 1979), and cases cited. Significantly, as the court noted in Benton v. School Board of Broward County, 386 So.2d 831, 834 (Fla. 4th DCA 1980), this duty has been compared and likened to that owed by “a reasonable and prudent parent.” In the light of these decisions, we must conclude that the only reason that there are no Florida child-v.-parent-negligent-supervision-cases is not that there is no parental “duty” to supervise but that all such actions, on whatever basis, have been barred by intrafamily immunity.
This conclusion is supported by the facts that Holodook has not only been subject to searching criticism within New York itself, see Fuchsberg, J., specially concurring in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978), but that it seems to stand entirely alone among the decided cases on the decisive question. While there is an obvious conflict as to whether a child may maintain an action against his parent for negligently supervising him, the issue has invariably been framed as involving the extent to which the immunity doctrine should be abolished. Compare, e.g., Gibson v. Gibson, 3 Cal.3d 914, 92 Cal. Rptr. 288, 479 P.2d 648 (1971) (abolition of parental immunity, including supervision); with Schneider v. Coe, 405 A.2d 682 (Del. 1979) (preserving immunity for supervision); see generally, Note, The “Reasonable Parent” Standard: An Alternative to Parent-Child Tort Immunity, 47 Univ.Colorado L.Rev. 795, 802-15 (1976); Annot., Negligent Parent-Child Injury-Liability, 41 A.L.R.3d 904, 976-80 (1972). Even those cases which have cited Holodook with approval, e.g., Schneider v. Coe, supra, Pedigo v. Rowley, supra, have relied upon its arguments5 only to justify the refusal to abolish immunity in this area.6 This approach
Mrs. Joseph also contends, however, that there are good reasons why a contribution action should not lie in any parent-child case.7 She suggests that, unlike the husband-wife case which involves adults,8 a child is not capable of himself maintaining an action for his own benefit, and must do so through his “next friend,” typically of course, his parent. See, Youngblood v. Taylor, 89 So.2d 503 (Fla. 1956);
We first note that the alleged chilling effect of a potential contribution claim upon the child‘s case is speculative in the extreme. If the parent is insured, no actual familial “harm” would be done by such a claim, see, Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471 (Fla. 1977); if he or she is not insured it is unlikely that a contribution claim would be pursued. Even if it were, the parent would always be motivated to recover from the third party the net amount represented by the degree of negligence for which he is responsible. See, Noelchek v. Gesuale, supra, 385 N.E.2d at 1274, 413 N.Y.S.2d at 346; Holodook v. Spencer, supra, 324 N.E.2d at 347-48, 364 N.Y.S.2d at 872-73 (Jasen, J., dissenting). In any event, we do not believe that the supreme court would permit the conjectural possibility of potential deterrence to negate the very basis of the Shor decision, the notion that parties should be liable to the extent of their wrongdoing,9 but nо further, and thus that to deny contribution would both unfairly penalize the third-party and confer an unjustified windfall upon the also negligent family member. This principle, which also answers the “family unit” argument, was well-expressed in the dissenting opinion in Pedigo v. Rowley, supra, which, after quoting at length from Shor, states at 610 P.2d 567:
The inequity possible under the holding of the majority in this case is immediately evident. If the third party is minimally negligent — for example, 10% — and the immune parent is primarily at fault — for example, 90% — the third party will, according to the majority, be saddled with the entire judgment while the seemingly culpable parent bears no loss whatsoever. If the parent and the child are truly one economic unit, as the majority approvingly asserts by its quotation from the Holodook case, the parent profits by his own wrongdoing.
Accord, Rozell, Contribution Among Joint Tortfeasors When One Tortfeasor Enjoys A Speсial Defense Against Action by the Injured Party, 52 Cornell L.Q. 407, 411 (1967).
Moreover, even if we considered that the parade of horribles presented by the mother‘s counsel is not a fanciful one, we would
For these reasons the judgment below, as to both the appeal and cross-appeal, is again
Affirmed.12
Notes
It is fair to say that the Holodook conclusion was largely influenced by the court‘s wish to avoid what it considered the undesirable effects of permitting a contribution action, which it thought would inevitably follow a recognition of the “duty” to supervise. It is an anomaly that, as a result no contribution action lies in New York, where there is no immunity, while it may be maintained (as we hold) in Florida, whеre family immunity thrives. Raisen v. Raisen, supra.
Moreover, it is more than ironic that, twisting and turning within the conceptual restraints imposed by Holodook, the New York court in Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978), based on the same considerations of fairness to the original defendant which impelled Shor, approved a contribution action based on the parents’ negligent supervision of the child in the operation of a motor vehicle, while simultaneously maintaining the inability of the child to sue directly. But see the cogent contrary view expressed in the dissenting opinion of Judge Cooke, 413 N.Y.S.2d at 351-52, 385 N.E.2d at 1278-79.