Alegre v. Shurkey

• Citation: 396 So.2d 247
• Decision Date: 06 April 1981
• Docket Number: No. UU-433,UU-433
• Parties: Honesto ALEGRE et al., Appellants, v. Larry C. SHURKEY et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 247

396 So.2d 247

Honesto ALEGRE et al., Appellants, v. Larry C. SHURKEY et al., Appellees.

No. UU-433.

District Court of Appeal of Florida, First District.

April 6, 1981.

Chalmers H. Barnes, of Barnes & Barnes, Jacksonville, for appellants.

Emory P. Cain, Jacksonville, for appellees.

SMITH, Judge.

The trial court dismissed appellants' complaint, for failure to state a cause of action, in which they sought damages for injuries received by their daughter in falling from a type of playground equipment known as "monkey bars" placed by appellees upon their property, and which was being used by appellants' minor child with the implied permission of appellees, since the child was in the yard playing with appellees' child.

The complaint is in two counts, the first seeking recovery upon a theory of negligence in allowing the ground surface under the monkey bars to become hard-packed, and in failing to provide some cushioning surface for the prevention of injuries to children who might fall while playing on the monkey bars. The second count alleges substantially the same facts, but adds additional allegations based upon the attractive nuisance doctrine. Both counts contain essentially the same allegations with respect to the negligence of appellees. Paragraph 5 of count one provides:

5. Defendants Shurkey were negligent by failing to provide a surface under the monkey bars which could possibly have absorbed the impact of a child falling from a height of six to seven feet. Defendants knew or should have known that a packed earth surface presents a serious hazard for children who might fall while playing on the monkey bars. Defendants knew or should have known that falls from this type of playground equipment are a regular occurrence and defendants should therefore have provided some cushioning surface underneath the monkey bars.

As to Count One, appellants' argument focuses primarily upon a decision from the New York courts, Hunt v. Board of Education of Schenectady, 43 App.Div.2d 397, 352 N.Y.S.2d 237 (1974), in which the appellate court reversed the trial court's dismissal of the complaint, holding that a jury question was presented on the issue of whether or not the defendant school was negligent in placing a set of "monkey bars" over an artificially hardened, "black top" surface. However, we consider that the facts in this case are distinguishable from those in Hunt, and moreover, we further conclude that a determination of this question in Florida is controlled by Hillman v. Greater Miami Hebrew Academy, 72 So.2d 668 (Fla.1954).

In Hillman, the injured child was playing on monkey bars constructed on the playground of a private school. The plaintiffs contended that the monkey bar equipment in question was negligently maintained, in that it was constructed so that it extended over the trunk of a coconut palm tree, and that the defendant had failed to keep it supervised by one competent to look after children of tender age to prevent them from falling from it. In affirming dismissal of the complaint for failure to state a cause of action, the court said (Id. at 669):

The vice of the complaint in question consisted in the fact that it sought to make appellee an insuror of the safety of minor children who used its playground equipment while the law contemplates that it furnish them a reasonably safe place to play commensurate with their knowledge and impulses. There is no allegation in the amended complaint that the monkey bar contained latent defects, that it was negligently constructed or operated or that there was any present danger that one of tender years could not readily comprehend. It was approved standard playground equipment and no amount of superintendence would have prevented the accident. (citations omitted)

We consider that the facts alleged in Hillman present an even stronger case than this one, and the trial judge correctly held that Count One was insufficient to state a cause of action. See also Elmore v. Sones, 140 So.2d 59 (Fla. 2nd DCA 1962); and Solomon v. City of North Miami Beach, 256 So.2d 399 (Fla. 3rd DCA 1972).

As to Count Two, the dismissal was correct because the complaint does not specifically allege, nor can it reasonably be inferred from facts pleaded, that the monkey bars presented an inherently dangerous condition, or a trap without which the attractive nuisance theory does not apply. See Edwards v. Maule Industries, Inc., 147 So.2d 5 (Fla. 3rd DCA 1962).

AFFIRMED.

SHIVERS, J., concurs. ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge, concurring in part and dissenting in part.

While I agree with the majority in affirming the dismissal of Count II, I must respectfully take issue with the majority's affirming the dismissal of Count I, which alleged, in effect, that Annette Alegre was lawfully on the premises by invitation, ¹ and that while there she was injured by falling from monkey bars onto hard-packed earth, a condition created by defendants which they should have known was dangerous. It was not alleged that Annette, because of her age, was unable to comprehend the dangerousness of the condition.

On first impression, the majority's reliance on Hillman v. Greater Miami Hebrew Academy, 72 So.2d 668 (Fla.1954), would appear controlling. Yet, it is difficult for me to determine on what basis the Hillman court decided the action before it was deficient. Did the court hold only that it was essential for the plaintiffs to allege that a child of tender years could not have comprehended the patent, dangerous condition of monkey bars perched from the trunk of a palm tree? Or did the court consider that because the plaintiff did not allege the existence of a latent defect in the equipment, the child should have been able to see what was there to be seen by the ordinary use of his senses, and if it was there to be seen, it was therefore deemed in law to have been seen?

If Hillman restricted its decision to holding only that the complaint was wanting due to its failure to allege the child's lack of awareness, it would seem that the complaint could have been amended to permit the plaintiffs to make such allegations. One case, involving an attractive nuisance, Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla. 4th DCA 1967), quashed on other grounds, 216 So.2d 221 (Fla.1968), has recognized that a complaint containing a similar defect could be amended so that the necessary facts might be alleged. It has long been acknowledged that a child of tender years may be incapable of comprehending a patent risk and that a greater degree of care may be owed to the invitee-child by the business owner than to an adult of normal intelligence. See Burdine's, Inc. v. McConnell, 146 Fla. 512, 1 So.2d 462 (1941); City of Jacksonville v. Stokes, 74 So.2d 278 (Fla.1954); McCain v. Bankers Life & Casualty Co., 110 So.2d 718 (Fla. 3d DCA 1959). This rule was an exception to the patent danger doctrine, in effect at the time Hillman was decided, which stated that no duty was owed by the owner or possessor of land to an invitee in situations where the danger was obvious, reasonably apparent, or as well known to the person injured as it was to the owner or occupier. Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366 (1942); Hall v. Holland, 47 So.2d 889 (Fla.1950). And, those cases involving the exception generally held that the question of whether or not the child comprehended the risk was one for decision by a jury not a judge. E. g. Burdine's, Inc. v. McConnell, supra; McCain v. Bankers Life & Casualty Co., supra. Even more significantly, it has been recognized that a three-year old child is incapable as a matter of law of conduct amounting to contributory negligence. Winner v. Sharp, 43 So.2d 634 (Fla.1949).

If, however, Hillman required the plaintiffs to allege that the hazard was latent, I think it would have been impossible for the plaintiffs either in Hillman or in the case at bar to have made such allegations. The injury suffered by the child, as stated in the complaint before us, was attributable not to a defect hidden from the eye of one of normal intelligence, but was one rather attributable to the defendants' conduct defendants who knew or should have known that the condition, the placement of elevated monkey bars directly above a hard, earth packed surface, presented a serious hazard to children playing on such equipment. Yet, I seriously doubt that a plaintiff-invitee is now required to plead that a latent defect caused his injuries. The no-duty doctrine, barring recovery if the danger was open, has now, in my judgment, been superseded by the adoption of comparative negligence in Florida by Hoffman v. Jones, 280 So.2d 431 (Fla.1973), later amplified by Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), as to assumption of the risk. Blackburn held that the affirmative defense of implied secondary assumption of risk is merged into the defense of contributory negligence, and that principles of comparative negligence apply in all cases where contributory negligence was formerly asserted. Thus, in any situation whenever implied secondary assumption of the risk is now raised, the reasonableness of the plaintiff's conduct in meeting a patent risk is an issue to be determined by the jury in its apportionment of the respective parties' negligence. Id. at 293. Yet, Blackburn also states that if assumption of risk has a distinct purpose apart from contributory negligence, its continued existence remains unaffected by the adoption of the comparative negligence doctrine. Id. at 289.

As Blackburn observes, assumption of risk involves two separate and distinct doctrines: primary and secondary assumption of risk. Primary assumption of risk is not an affirmative defense, but is a way of expressing the idea that if the defendant owes no duty to the plaintiff, he cannot be negligent, whereas secondary assumption of risk is an affirmative defense to an established...