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Attorney(S)

Louis Vernell and Sherman Bellman, Miami Beach, for appellant. Dixon, DeJarnette, Bradford Williams, Miami, for appellees.

Judges

KANNER, Associate Justice.

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Smart Summary

Summary: Julius Gissen v. Albert Goodwill and Mrs. Albert Goodwill (Supreme Court of Florida, Apr. 29, 1955)

Factual and Procedural Background

The appellant, Julius Gissen, alleged in a second amended complaint that while employed as a clerk at the Gaylord Hotel in Miami Beach he was injured when an eight‑year‑old child, Geraldine Goodwill, "wilfully, deliberately, intentionally and maliciously" swung a door with great force, severing a portion of his middle finger. The appellees, Albert Goodwill and Mrs. Albert Goodwill, were alleged to be the child's parents and to have been residing as business invitees at the same hotel. The complaint further alleged that the parents knew of prior acts by the child — described as striking, knocking down and damaging furniture and disturbing guests and employees — and that, owing to a lack of parental discipline and failure to restrain the child, the parents "sanction[ed], ratif[ied] and consent[ed] to" the wrongful act.

The trial court entered judgment against Gissen for failure to state a cause of action against the appellee parents. The appeal was taken to the Supreme Court of Florida, Special Division A. The Court dismissed the minor child as a party to the appeal for lack of jurisdiction. The Supreme Court considered whether the second amended complaint sufficiently alleged parental negligence that would render the parents liable for the tort of their minor child.

Legal Issues Presented

Whether, under the allegations of the second amended complaint, the parents can be held legally accountable for the tort allegedly committed by their eight‑year‑old child.
Whether the complaint sufficiently alleged parental negligence in failing to exercise control over the child so as to state a cause of action against the parents (i.e., whether the allegations meet the applicable exception to the general rule that parents are not liable for their child's torts).

Arguments of the Parties

Appellant's Arguments

The appellant relied on the exception to the general rule of parental nonliability that makes parents responsible where they fail to exercise parental control and thereby render injury to another a probable consequence. The complaint alleged lack of parental discipline, prior mischief by the child on hotel premises, and that the parents knew of the child's dangerous tendencies.

Appellees' Arguments

The appellees contended that the appellant failed to allege sufficiently that the parents breached their duty to exercise discipline and control with respect to a specific act or a habitual course of conduct by the child; in particular, they argued that the complaint did not allege that the child was in the habit of committing the specific type of wrongful act that caused the injury (i.e., swinging or slamming doors at others).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
39 Am.Jur., sec. 55 (and secs. 56–59)	General proposition that a parent is not liable for the torts of his minor child by mere fact of paternity; enumerates exceptions (instrumentality entrusted, master‑servant relationship, parental consent/sanction, failure to exercise control).	Used to state the general rule and to list the recognized exceptions; the Court focused on the exception for failure to exercise parental control.
67 C.J.S., Parent and Child, § 66 (and §§ 67–68)	Same subject matter as Am.Jur.: parents' nonliability generally and recognized exceptions.	Relied on as an authoritative secondary source confirming the categories of parental liability and narrowing the issue to the fourth category (failure to exercise control).
Restatement of the Law (Torts), § 316	Sets forth the parent's duty to exercise reasonable care to control a minor child to prevent intentional harm or unreasonable risk of bodily harm, conditioned on (a) the parent's ability to control the child, and (b) the parent's knowledge or reason to know of the necessity and opportunity for exercising such control.	The Court adopted and applied the Restatement's formulation to frame the elements that must be alleged to hold parents liable for failure to control their child.
Bateman v. Crim, D.C. Mun.App., 34 A.2d 257	Held that, absent evidence of prior unrestrained conduct, parental negligence must have some specific relation to the act complained of; mere lack of supervision without such relation is insufficient.	Used to support the principle that parental negligence must be specifically related to the act that caused the injury; cited as authority for requiring that negligence have a specific relation to the complained act.
Steinberg v. Cauchois, 249 App. Div. 518, 293 N.Y.S. 147	Reversed judgment against parents where evidence did not show sufficient notice to parents that the child was accustomed to the hazardous conduct (riding bicycle on sidewalk); insufficient notice precluded liability.	Cited as an example where alleged prior conduct was held insufficient to charge parents; used in analysis of necessity of notice or knowledge of habitual dangerous conduct.
Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (155 A.L.R. 81)	Held parents may be liable when their negligence renders injury possible and where failure to restrain is tantamount to sanction or consent; emphasized foreseeability that injury would naturally and probably result from parents' negligence and that mere knowledge of disposition is insufficient without failure to control.	Used to illustrate the doctrine that parental liability arises where parents know of a habit and fail to control it so that injury is a natural and probable consequence; Court relied on this as an instructive precedent for framing the required showing.
Norton v. Payne, 154 Wn. 241, 281 P. 991	Parents held responsible for a child's dangerous habit of striking smaller children with sticks where parents knew of the habit and did not correct or restrain it; parental encouragement or failure to restrain constituted negligence.	Used to support the proposition that knowledge of a dangerous habit plus failure to correct it may constitute parental negligence sufficient to state a cause of action.
Martin v. Barrett, 120 Cal.App.2d 625, 261 P.2d 551	Affirmed dismissal where complaint alleged child was careless and reckless but did not allege a specific known course of habitual wrongful acts by the minor and parents' failure to guard against them.	Applied to emphasize necessity of alleging a specific habitual course of conduct by the child to charge the parents with liability.
Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675	Reversed dismissal where parents employed a babysitter without warning of their son's habitual violent attacks; held a parent's negligence that made it probable the child would cause injury could render the parent liable.	Illustrated that failure to warn or to guard against a known habitual conduct can support a cause of action against parents; used as supporting authority for the habit‑based exception.
Buelke v. Levenstadt, 190 Cal. 684, 214 P. 42	Quoted in Ellis for the rule that a parent may become liable where the parent's negligence made it possible and probable that the child would cause the injury.	Cited as precedent underlying the proposition applied in certain California cases that parental negligence rendering probable the injury can impose liability.
Ryley v. Lafferty, D.C., 45 F.2d 641	Overruled demurrer where complaint alleged child's vicious habit of inveigling and beating smaller boys, parents' knowledge and encouragement, and failure to restrain; held parents liable where torts were habitual with parents' knowledge and encouragement.	Used to demonstrate that habitual tortious behavior known to and encouraged by parents can render parents answerable in damages.

Court's Reasoning and Analysis

The Court began by stating the general rule that parents are not liable for the torts of their minor children merely because of the parent‑child relationship, then identified four categories of recognized exceptions (instrumentality entrusted, master/servant relationship, parental consent/sanction, and failure to exercise parental control). The Court determined that only the fourth category — parental failure to exercise control where such failure makes injury to others a probable consequence — was relevant to the facts alleged here.

The Court adopted the Restatement (Torts) § 316 formulation of the parent's duty, which conditions liability on (a) the parent's ability to control the child and (b) the parent's knowledge or reason to know of the necessity and opportunity to exercise that control. Against that legal framework the Court examined the authorities it cited, extracting a common theme from those cases: parental liability has most often been recognized where the child engaged in a habitual course of similar wrongful acts (a "habit" or persistent course of conduct) of which the parents had knowledge, encouraged, or failed to correct, thereby making injury a natural and probable consequence.

Applying that distilled principle to the allegations of the second amended complaint, the Court found the complaint deficient because it did not allege that the child had a habit or propensity to commit the particular type of wrongful act that caused appellant's injury (i.e., swinging or slamming doors in a manner hazardous to others). The Court emphasized that an isolated, unexpected act by a child that is unrelated to prior acts cannot, without more, be attributed to parental negligence. Because the complaint did not allege a course of similar prior acts or a known habit of swinging doors, the Court held that the complaint failed to show that the injury was a natural and probable consequence of parental negligence in failing to restrain the child.

Holding and Implications

HOLDING: The judgment of the court below is AFFIRMED.

Implications: The Court concluded that, on the allegations in the second amended complaint, the appellant did not state a cause of action against the appellee parents because the complaint failed to allege that the child habitually committed the specific type of wrongful act that resulted in injury, and therefore failed to establish that the injury was a natural and probable consequence of parental negligence. The direct effect is that the appellant's claim against the parents was dismissed and the lower court's judgment in favor of the parents was affirmed. The opinion applies existing principles and cases to the facts of this complaint and does not purport to establish a new legal doctrine beyond reaffirming the requirement that parental liability for a child's tort generally rests on a showing of knowledge of, and failure to control, a habitual or predictable course of wrongful conduct.

Decision Authors and Concurrence: Opinion by Associate Justice Kanner. MATHEWS, C.J., and TERRELL and SEBRING, JJ., concurred. The minor child was dismissed from the appeal for lack of jurisdiction (Gissen v. Goodwill, 74 So.2d 86).

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JULIUS GISSEN, APPELLANT, v. ALBERT GOODWILL AND MRS. ALBERT GOODWILL, 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, wilful 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.

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, 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. Complaint further alleged that the adult defendants knowingly permitted their minor child to operate his bicycle on the sidewalk in a careless, negligent, and reckless manner after they had received notice of his conduct in thus operating his bicycle on prior occasions, failing to take any steps after such notice to prevent such conduct, and thus making it probable that the infant plaintiff's injuries would result. On appeal, the judgment against the parents was reversed, the court stating that the evidence was insufficient to charge the adult defendants with liability for damages resulting from the tort of their infant son, and that sufficient notice was not brought home to the parents that their son was accustomed to riding his bicycle on the sidewalk.

In Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 52, 155 A.L.R. 81, the appellate court reversed a judgment for the defendant parents where it was alleged that plaintiffs' child was beaten and thrown down a steep embankment by defendants' minor child, that defendants' child had a vicious, malignant disposition and habit of assaulting and mistreating smaller children and that defendants knew of such habit and encouraged their son in such conduct by resenting any resistance or admonition by others. The court stated that at common law no liability is imposed on the parents for the torts of their child because of the mere parent and child relationship, but that the parents may be liable when their negligence renders possible the injury. Such injury, said the court, "must have been the natural and probable consequence of the parents' negligent act, that is a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such negligent act." The court stated in effect that mere knowledge by the parents of the child's mischievous and reckless disposition does not suffice to make the parents liable for the child's torts, but that such liability emanates from their failure to exercise due control over the child when they know or in the exercise of proper care should know that injury to another is a natural and probable consequence; that since such failure to restrain the child is tantamount to parents' sanction or consent, plaintiffs' averments in the statement of claim are sufficient to charge the parents with negligence based on their full knowledge and approval of the tortious acts of their minor son, and that they therefore may be answerable in damages for the injuries thereby incurred.

In the case of Norton v. Payne, 154 Wn. 241, 281 P. 991, 992, action was brought by infant, aged 5, by his guardian for injuries sustained when he was struck in the eyeball with a stick by defendants' child, aged 7, who had the habit of striking smaller children in the face with sticks. It was alleged that parents knew about and encouraged her habit of striking other children with sticks. The appellate court reversing the lower court's dismissal of the case said, "* * * we think parents should be held responsible and liable for a dangerous habit of a child of which they have knowledge and take no steps to correct, or restrain. It is that which constitutes the negligence on the part of the parent." It was pointed out by the court that, although the evidence in the case is that the father did not know that the child was committing this particular tort, the parents did nevertheless know that such child was in the habit of perpetrating this particular kind of tort and that the father encouraged her in so doing, the implication being that since he made no effort to restrain the child, he must therefore be deemed to have consented to its commission by her at any time.

The lower court's dismissal for failure to state a cause of action in the case of Martin v. Barrett, 120 Cal.App.2d 625, 261 P.2d 551, was affirmed by the appellate court. The question was on the sufficiency of a complaint which alleged that defendants' child, aged 12, was a careless, unreasonable, aggressive and reckless person; that he was immature and lacked the judgment to be entrusted with an air rifle; that his parents negligently permitted him to use it by shooting it from his porch, injuring plaintiffs' child, aged 5, who was playing in the back yard. The court held that before a cause of action may be stated against the parents for the tort of a child there must be alleged a specific known course of conduct by the minor involving his habitual, intentional, and specific wrongful acts against others and the parents' failure to take proper precautions to guard them against such acts.

In the case of Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675, 679, it is alleged that the parents, employing plaintiff for the first time as a baby sitter for their 4 year old son and knowing that their son habitually engaged in violently attacking and throwing himself forcibly and violently against other people, violently shoving and knocking them, nevertheless failed to warn the plaintiff of such habitual conduct on the part of their infant; and that shortly after plaintiff entered on her duties in the home, the son attacked and injured her. The appellate court reversed the lower court's dismissal of the complaint, holding that a cause of action had been stated, and said, "While it is the rule in California, as it is generally at the common law, that there is no vicarious liability on a parent for the torts of a child there is `another rule of law relating to the torts of minors which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child, where the parent's negligence made it possible for the child to cause the injury complained of, and probable that it would do so.' Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42, 44".

In the case of Ryley v. Lafferty, D.C., 45 F.2d 641, it was alleged in substance that the defendant's child had a vicious and malignant disposition and habit of inveigling smaller boys into secluded places and there beating, bruising, maiming, and punishing them; that defendant parents at time in question well knew of such vicious habit and disposition; that, notwithstanding such knowledge, they permitted continuance of their son's act; that defendant father encouraged his son in such conduct by resenting any resistance or admonition by others when such acts were committed, and failed to protect other children from such acts. The demurrer to the complaint was overruled. The court declared that parents are liable for the torts of the minor child if committed habitually with parents' knowledge and encouragement and without effort to restrain the child; and further that parents' encouragement of tort with knowledge of the child's peculiar habits and vicious disposition would constitute participation in tort and thereby negligence.

Emphasis, whenever used, is supplied.

One common factor from the foregoing cases appears salient in the assessment of liability to the parents, that the child had the habit of doing the particular type of wrongful act which resulted in the injury complained of. In the instant case, the cause of action sought to be established fails in that the negligence charged with relation to parental restraint is not claimed to flow from the commission of an act or course of conduct which the child habitually engaged in and which led to the appellant's injury. It is nowhere claimed that the child here involved had a propensity to swing or slam doors at the hazard of persons using such doors. The deed of a child, the enactment of which results in harm to another and which is unrelated to any previous act or acts of the child, cannot be laid at the door of the parents simply because the child happened to be born theirs. However, a wrongful act by an infant which climaxes a course of conduct involving similar acts may lead to the parents' accountability. A deed brought on by a totally unexpected reaction to a situation which is isolated of origin and provocation could not have been foretold or averted and hence could not render the parents responsible.

Therefore, from the allegations of the second amended complaint, it is not made to appear that the injury claimed to have been sustained by the appellant was a natural and probable consequence of negligence on the part of the appellee parents.

The judgment of the court below is affirmed.

MATHEWS, C.J., and TERRELL and SEBRING, JJ., concur.

GISSEN v. GOODWILL