535 So. 2d 414
Animosity developed between two young kids. Shawn was 13, Jeremy 14. J was teasing S on the clothing he was wearing, S said "kiss my ass", J told him to move to another bus stop and kicked him in the rear.
-There was a fight scheduled for a previous day, a small fight started but no blows exchanged, bus came and they stopped arguing.
-It was known a fight would take place on this day, a time and place had been set for the fight.
-The boys met, there and was a pushing match between the two boys. There was a headlock, and a beating took place.
-Shawn ended up with an eye injury.
-S' Parents and Shawn brought action for injuries sustained to their son's eye during altercation with another J.
Was D liable in tort for using excessive fight in a physical fight?
No, child voluntarily participated in altercation and that neither boy used excessive or unnecessary force.
-When two parties expressly or impliedly agree to fight, the consent of one is not vitiated, such that he may recover for his injuries, merely because the other strikes the first blow.
-Although there was peer pressure here, peer pressure does not vitiate consent.
-Trial court's finding that injured boy voluntarily participated in altercation with another boy, and therefore was precluded from recovering for injuries sustained in fight, was supported by the evidence which indicated that injured boy left safety of home to meet the other, prepared to engage in fisticuffs, and in anger, and challenged the other to fight, though the other boy instigated bad feelings and committed two batteries on injured boy prior to fight.
-Trial court's finding that no unnecessary or excessive force was employed by either boy engaged in fight, so that injured boy could not recover damages, was supported by evidence that altercation was a fistfight and no weapons were involved, injured boy was only a little smaller than the other, and serious injury to boy arose only after boy charged back at the other boy after he was pushed into ditch.