Carr v. School Bd. of Pasco County

• Decision Date: 03 March 2006
• Docket Number: No. 2D05-2388.,2D05-2388.
• Parties: Michael CARR, by and through Diane Carr, his parent and natural guardian, Appellant, v. SCHOOL BOARD OF PASCO COUNTY, Florida, Appellee.
• Court: Florida District Court of Appeals

921 So.2d 825

Michael CARR, by and through Diane Carr, his parent and natural guardian, Appellant, v. SCHOOL BOARD OF PASCO COUNTY, Florida, Appellee.

No. 2D05-2388.

District Court of Appeal of Florida, Second District.

March 3, 2006.

Morgan L. Gaynor of Mark S. Roman, P.A., Clearwater, for Appellant.

R. Elliott Dunn, Jr., of McClain & Alfonso, P.A., Dade City, for Appellee.

ALTENBERND, Judge.

Michael Carr, by and through his parent and natural guardian, Diane Carr, appeals an order granting the School Board of Pasco County a new trial in his negligence action for bodily injuries. Michael Carr sustained a severe injury to his knee while running on a track during a physical education class at Hudson High School in August 2002. The trial court's order, entered after the jury rendered a verdict in favor of Michael Carr in a bifurcated trial on liability, is unusual. It does not grant a new trial because the jury's verdict was contrary to the manifest weight of the evidence. Instead, it grants a new trial on the theory that the plaintiff presented no evidence that the School Board was on actual or constructive notice of a dangerous condition. The School Board never moved for a directed verdict in this case, and there was ample evidence that the teachers at the track knew or should have known of a dangerous condition. Accordingly, we reverse the order granting new trial. We remand for the trial court to reinstate the jury's verdict and to continue with a trial on the remaining issue of the amount of damages Michael Carr sustained.

At the beginning of the school year in 2002, Hudson High School was participating in the "President's Challenge," a physical activity and fitness awards program. Students were required to participate in various events to test their strength and stamina. One of the events required the students to walk or run a timed mile on the track. Michael Carr participated in this event during the fifth period of the school day.

Michael was fifteen and hoping to earn a position on the school's wrestling team. He decided to do his best in the run in hopes that he would impress the coaches. There were approximately 100 students on the track at the same time for this event. The walkers were expected to stay in the outside lanes, while the faster runners moved to the inside lanes.

When the race started, Michael and several other runners broke out of the pack. On the second lap, as they ran down the backstretch, Michael had already moved into the innermost lane and was running immediately behind another boy. Although the evidence was disputed as to how the accident occurred, it appears that either the runner in front of Michael suddenly moved to the right or another impediment required Michael to suddenly move to the left. A step or two later, Michael ran into a metal bench. He struck the bench with his right knee, displacing his kneecap to the outside of his leg.

The bench was a fifteen-foot, movable aluminum bench used for football practices on the athletic field. There was some dispute among the witnesses who testified at trial as to whether the bench was directly on the track when Michael ran into it or whether it was immediately adjacent to the track. However, a student who witnessed the accident testified that the bench was angled onto the track from the grass and that the accident occurred "more on the concrete than the grass." Further, a teacher who arrived after the accident found the bench angled onto the track with approximately half of the bench on the track. Michael testified specifically that he never left the track and that the portion of the bench he hit was on the track.

One of the physical education instructors testified that the benches were normally kept on the grass six feet from the inside edge of the track, but that the benches were moved when the grass was cut. This instructor noted that the normal location of the benches was chosen "for safety to run on the track." There is no dispute that several teachers were on the field that afternoon to supervise the students on the track, and they would have had ample opportunity to examine the exact location of all objects on or near the track prior to the event. However, no teacher actually testified that he or she saw the bench in a dangerous location prior to the start of the race.

This case was submitted to the jury on the standard premises liability theory explained in Florida Standard Jury Instruction 3.5(f). Thus, the jury was asked to determine whether the School Board negligently failed to maintain its property in a reasonably safe condition, failed to correct a dangerous condition of which it either knew or should have known by the use of reasonable care, or whether it failed to warn Michael Carr of a dangerous condition concerning which the School Board's employees had, or should have had, knowledge greater than that of Michael Carr. The parties agreed upon a general verdict form, and the jury returned a verdict finding the School Board negligent. The jury found no negligence on the part of Michael Carr.

The School Board had not moved for a directed verdict during the trial and did not move for a judgment notwithstanding the verdict after the trial. However, the School Board filed a motion for new trial. It alleged that "the jury's verdict was contrary to the evidence, and contrary to the law," and that "the jury's verdict was contrary to the manifest weight of the evidence, in that the evidence clearly supported a finding of some degree of negligence on the part of Michael Carr, yet the jury found none." The School Board also filed a memorandum in support of the motion for new trial, arguing that Carr had failed to prove the School Board had actual or constructive knowledge of the alleged dangerous condition. After the hearing on the motion for new trial, the trial court took the matter under advisement and inexplicably granted a directed verdict, entering a final judgment in favor of the School Board.

Michael Carr moved for relief from this judgment, pointing out that the School Board had never moved for a directed verdict. The trial court then entered an order granting relief from the judgment but also granting the School Board a new trial. The order explained that the plaintiff presented "no evidence from which a jury might infer actual or constructive notice to [the School Board] of that dangerous condition." Accordingly, the trial court concluded that the verdict was "contrary to the evidence, and to the law."

Although it is common for lawyers to move for a new trial on the grounds that a verdict is "contrary to the evidence, contrary to the law, and contrary to the law and the evidence," or some variable of these grounds, such grounds without greater specification do not appear to have been the reported basis for a new trial on the issue of liability in many years. The most recent cases discussing these grounds appear to be Bailey v. Sympson, 148 So.2d 729 (Fla. 3d DCA 1963), and Bell v. Tarvin, 163 So.2d 300 (Fla. 1st DCA 1964).¹ Our research suggests that this court last relied on these grounds in 1958. See Tampa Sand & Material Co. v. Johnson, 103 So.2d 250 (Fla. 2d DCA 1958).² The supreme court held that these grounds were not sufficient to preserve an issue for review in an older workers' compensation case. See Shell's City, Inc. v. Coles, 145 So.2d 489 (Fla.1962). The demise of these grounds as a basis for a new trial may have occurred in large part due to the supreme court's opinion in Cloud v. Fallis, 110 So.2d 669 (Fla.1959), which clarified that a trial judge had discretion to grant a new trial when the verdict was "against the manifest weight of the evidence." Id. at 673.

As the law has developed since Cloud, a trial judge may grant a new trial on the issue of liability — at least in the absence of specific jury misconduct — when he or she becomes aware of a specific prejudicial legal error or when he or she finds that the jury's verdict is contrary to the manifest weight of the evidence. See Krolick v. Monroe, 909 So.2d 910, 914 (Fla. 2d DCA 2005); see also Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999); Tri-Pak Mach., Inc. v. Hartshorn, 644 So.2d 118 (Fla. 2d DCA 1994). When a trial judge grants a motion for new trial, he or she must articulate the...