## Facts

- Raphael Klepper sued George W. Breslin and Alma Conway Breslin for the wrongful death of Klepper’s four-year-old son, Scott Robert Klepper, alleging Alma negligently operated George’s automobile.
- The accident occurred in a strictly residential area in Duval County, Florida, where small children were common and “Children Slow” warning signs were posted.
- Alma Breslin backed out of her driveway and drove along the neighborhood street; testimony conflicted about her speed.
- Several hundred feet before the impact, Alma saw three small children and a dog playing in a park area immediately adjacent to the roadway.
- Two children appeared to be several feet off the roadway, with a five-year-old apparently holding back Scott’s two-year-old brother.
- Scott (age four) was standing near a fence about 18 feet from the paved roadway; there was no sidewalk.
- A dog ran into the road in front of Alma’s car; Alma swerved to the right to avoid hitting the dog and briefly checked whether she had struck it.
- After avoiding the dog, Alma assumed the children remained in a place of safety where she had last seen them.
- Scott then suddenly ran into the street and appeared to stumble and fall in front of the automobile; he was fatally injured.
- At the defendants’ request, the trial court instructed the jury on sudden emergency, unavoidable accident, the “darting out” concept, and contributory negligence based on the mother’s alleged failure to supervise the children.
- The jury returned a verdict for the defendants, and the trial court denied the father’s motion for a new trial.

## Issues

1. Whether the trial court should have directed a verdict for the plaintiff on the defendants’ negligence rather than submitting negligence and causation to the jury.
2. Whether the trial court committed reversible error by instructing the jury on sudden emergency, unavoidable accident, “darting out,” and contributory negligence of the child’s mother based on supervision.

## Decision

- The Supreme Court of Florida affirmed the judgment for the defendants.
- The court held the evidence allowed differing inferences on the driver’s conduct and on causation, so negligence was not established as a matter of law and a directed verdict was not required.
- The court upheld giving the challenged instructions because the record could support findings that the child’s movement into the roadway was sudden and that the dog created an unexpected situation affecting the driver’s reactions.
- The court found no reversible error in the instructions when considered with the full charge and the evidence presented.

## Legal Principles

- When evidence permits different reasonable conclusions about a driver’s speed, lookout, control, and the timing of a child’s entry into the roadway, negligence and proximate cause are questions for the jury.
- A driver is not automatically negligent when a child, previously in a place of apparent safety and showing no clear intention to enter the street, suddenly runs into the vehicle’s path at a point where stopping or avoiding impact may be impossible.
- Sudden emergency and unavoidable accident instructions may be given when supported by evidence of a sudden, unexpected event confronting the driver.
- Instructions are reviewed as a whole; an instruction is not reversible error unless it misstates the law or is likely to mislead the jury on the issues being tried.
- In a wrongful-death claim arising from a child’s injury, the jury may consider whether a parent’s negligent supervision contributed to the occurrence when the evidence supports that contention.

## Conclusion

Klepper v. Breslin affirmed a defense verdict in a residential child-fatality auto case where the evidence allowed the jury to decide whether the driver acted reasonably after a dog suddenly ran into the road and the child then ran into the street and fell. The Florida Supreme Court rejected the father’s claim to a directed verdict and held that the trial court did not commit reversible error by instructing on sudden emergency, unavoidable accident, “darting out,” and alleged contributory negligence based on the mother’s supervision.


Klepper v. Breslin, 83 So. 2d 587 (1955)