Opinion
No. 79-747.
July 25, 1980. Rehearing Denied September 25, 1980.
Appeal from the Circuit Court, Hillsborough County, Robert W. Rawlins, Jr., J.
Britt Whitaker, Tampa, for appellants/cross-appellees.
Nelson Gilreath, Jr., Tampa, for appellees/cross-appellants.
This action arose in part out of a previous lawsuit between these parties, wherein appellants were granted an easement of necessity over a strip of appellees' land, the two being next-door neighbors. Appellees brought the present action for damages resulting from the misuse and abuse of the right-of-way privilege, and for an order terminating the easement. The judgment of the trial court ordered appellants to pay $2,500.00 in damages to appellees, but refused to terminate the easement. Both parties have appealed. We vacate the award of damages and affirm the balance of the judgment.
The record reveals that soon after the earlier litigation was concluded appellants were called to Canada to care for Mr. Thibeault's terminally ill parents. In their absence, they permitted their adult son and his wife to reside in their home. The conduct of the younger Thibeaults was over-exuberant at best and simply outrageous at worst, and was particularly abusive toward appellees.
When news of such conduct eventually and indirectly reached the elder Thibeaults in Canada, Mr. Thibeault immediately came home and "cleaned house", laying down stringent ground rules for the young people. In addition, Mr. Thibeault empowered another neighbor, Mr. Little, to evict the young people if there was any problem behavior or any complaints. As soon as Mr. Thibeault had returned to his tragic vigil in Canada, the appellees asserted that the offensive activities of the son, his wife and guests resumed at an even more frenzied pace. Appellees admit they never reported these activities either to the appellants or Mr. Little prior to the institution of this action. Mr. Little testified that after Mr. Thibeault straightened the young people out he thereafter never saw or heard of any problem behavior or activities.
Upon the commencement of this action, appellants immediately came home and evicted the younger Thibeaults, who had not been joined as parties to the litigation.
We are of the opinion that when appellees elected not to pursue their grievances against the actual tortfeasors, they assumed the burden of establishing that appellants were somehow vicariously responsible for the torts of their son. In no event could that burden be discharged by merely showing the parent-child relationship, and particularly not where, as here, the son was an adult. Thorne v. Ramirez, 346 So.2d 121 (Fla. 3d DCA 1977); Bullock v. Armstrong, 180 So.2d 479 (Fla. 2d DCA 1965). Yet the record reveals no other basis for holding appellants liable for the misconduct of their son and his wife. Of a certainty, the naked fact that appellants own the premises in question would not render them liable, even if the activities thereon were deemed a nuisance. See, generally, 23 Fla.Jur. 508 et seq. §§ 21-23.
Accordingly, the portion of the final judgment awarding appellees a money judgment and costs against appellants is vacated and set aside. In all other respects the judgment is affirmed.
DANAHY, J., concurs.
GRIMES, Acting C.J., dissents with opinion.
This was not the ordinary dispute between neighbors. On January 23, 1975, the court concluded the first round of this acrimonious litigation by entering a final judgment granting the Thibeaults a way of necessity over the Seiferts' land, but at the same time enjoining the Thibeaults, "their heirs, assigns, guests or invitees," from trespassing on the balance of the Seiferts' land, including the Seiferts' portion of a common boathouse. The record reflects that when the Thibeaults left for Canada shortly thereafter, their son and daughter-in-law moved into the house and embarked on a course of conduct which Judge Ott has charitably referred to as outrageous. The occupants of the Thibeault property carried on various forms of activity which clearly constituted a nuisance, and they made continued trespasses upon the Seiferts' land. They even permitted the sinking of a boat in the boathouse, thereby rendering the Seiferts' side unusable.
While the Thibeaults denied ever seeing a copy of a petition of complaints being circulated by the neighbors, Mrs. Thibeault was overheard telling a friend that they had received the petition. In any event, when the Thibeaults got wind of the petition, they came to Florida to clean up the premises. While the objectionable activities were then temporarily discontinued, as soon as the Thibeaults left for Canada, the same pattern of conduct recurred. After the Thibeaults returned to Canada, there is no indication that they ever sought to determine whether there had been a recurrence of the objectionable conduct.
The Thibeaults had a duty to take reasonable steps to see that those they permitted to occupy their premises did not harass the Seiferts and violate the injunction. I believe the evidence taken as a whole supports the court's determination holding the Thibeaults responsible for the continuing violations of the injunction and the offensive conduct of the occupants of their premises which occurred for more than a two year period. Consequently, I would affirm the judgment in its entirety.