Richard v. Mangion

535 So.2d 414 (1988)

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Nature of the Case

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Facts

The sons of P and D fought at an outdoor hangout known as the 'rope swing' located at the rear of some residential lots in their neighborhood. During the fight, Jeremy (D) struck Shawn (P) in his right eye, causing hemorrhaging in the eye. He underwent two operations, and P incurred over $15,000 in related medical expenses. Shawn was thirteen-years-old, and Jeremy was fourteen at the time of the fight. Animosity between the boys developed after Jeremy made a derogatory comment to Shawn one morning regarding the trousers he was wearing. Jeremy told him to move to another bus stop and kicked Shawn in his buttocks. Prior to the main event, the boys had been scheduled to fight one day, but Shawn did not show up. The next day Jeremy and several boys and girls walked over to Shawn's bus stop to ask Shawn why he hadn't appeared. No actual blows were exchanged. When they saw the school bus coming, both boys stopped, and Jeremy made a sudden move, Shawn raised his hands or fists in a defensive gesture, and Jeremy kicked Shawn in his groin. Shawn ran home while the others boarded the school bus. P (the father) came running up, stopped the bus, and confronted Jeremy. They once again scheduled a fight but no fight occurred. Eventually, another fight was scheduled, and Jeremy testified he was not going to show up until a friend told him Shawn was waiting at the rope swing. No one was there, so Jeremy went to Shawn’s house who went to the rope swing. Jeremy asked Shawn if he wanted to fight, and Shawn did not answer, but Jeremy started to push Shawn. The fight began in earnest. There was no definitive evidence on who started the fight. The trial court determined that both voluntarily participated even though Jeremy was the initial aggressor. The action was dismissed, and P appealed.