Cassel v. Price

• Citation: 396 So.2d 258
• Decision Date: 07 April 1981
• Docket Number: No. XX-15,XX-15
• Parties: Kenneth F. CASSEL and Shirley Ann Cassel, Personal Representatives of Kenneth Reagan Cassel, Deceased, Appellants, v. J. Frank PRICE, Fred D. Higginbotham, and Fred Crews, their successors and assigns, as Trustee for First United Pentecostal Church, also known as Jacksonville Christian Academy and Preferred Risk Mutual Insurance Company, Appellees.
• Court: Court of Appeal of Florida (US)

Page 258

396 So.2d 258

Kenneth F. CASSEL and Shirley Ann Cassel, Personal Representatives of Kenneth Reagan Cassel, Deceased, Appellants, v. J. Frank PRICE, Fred D. Higginbotham, and Fred Crews, their successors and assigns, as Trustee for First United Pentecostal Church, also known as Jacksonville Christian Academy and Preferred Risk Mutual Insurance Company, Appellees.

No. XX-15.

District Court of Appeal of Florida, First District.

April 7, 1981.

David R. Lewis, of Lewis, Paul, Isaac & Castillo, and Mary L. Nelson, of Penland, McCranie & Shad, Jacksonville, for appellants.

William R. Swain and William T. Stone, of Webb, Swain & Watson, Jacksonville, for appellees.

LARRY G. SMITH, Judge.

Appellants appeal a final summary judgment finding no liability in their suit seeking damages for the death of their eleven year old son, who died as a result of a fall from a mulberry tree on the grounds of appellees' private church school, at which the child was a student. Appellants contend that the trial court erred in rejecting their claim of liability based upon the attractive nuisance doctrine, as well as upon ordinary negligence principles arising from the relationship between the school and the deceased child as a "business invitee"; and they further contend that although their second amended complaint was couched in terms broad enough to sustain their claim based upon the "business invitee" theory, the trial court further committed error in denying their motion to file an amended complaint, containing a second count based upon the school-student relationship. Our conclusion, from examination of the pleadings and record, and consideration of the briefs of the parties, is that there is no view of the facts affording a reasonable conclusion of negligence on the part of the defendant, and the summary judgment finding no liability must therefore be affirmed.

The facts of the case, as stated by appellants, are fairly simple and mostly undisputed. The decedent was an eleven year old student enrolled at the private school. He was in a car pool with two other students and was to be picked up at the end of the school day by the mother of the other two children. On the fatal day, at the close of the school day, that mother arrived to pick up the three boys, when it was learned that one of the other children was being kept after school for a short period by his teacher, apparently for disciplinary reasons. The driving mother decided to run a shopping errand, and at the request of the decedent and the other child, left them at the school grounds to play. After her departure, the two boys crossed the road or drive-way separating the school building from other school grounds, and the decedent climbed a large mulberry tree on the school property, near the area used by the school for parking and school recreation. While in the tree, the deceased child was picking mulberry blooms and throwing them to his companion on the ground, when he apparently lost his balance and fell to the ground. Upon falling, according to allegations of the complaint and a supporting affidavit filed in opposition to the motion for summary judgment, the deceased child struck his head on a broken piece of concrete block which, along with other old and broken pieces of brick and block left over from the school's building program, had been used by the school to fill in depressions around the tree. This filled area was covered over with a thin covering of dirt which originally hid all of the broken brick and block, but may have, by the passage of time, become thinned out further. ¹ The injuries received by the child when it struck the debris proved to be fatal.

The first complaint consisted of two counts: The first count was founded upon attractive nuisance, and lack of supervision by the school; and the second count was founded upon the alleged failure of the defendant to maintain the premises in a safe condition, and failure to warn the deceased minor of the dangerous, unsafe conditions created by the condition of the ground underneath the tree. Upon motion, this complaint was dismissed and an amended complaint was filed. This complaint contained one count alleging negligence based upon the duty of the school to provide a safe place to play; a second count founded upon negligent supervision; and a third count alleging the existence of an insurance contract of which the deceased child was a beneficiary. A motion to dismiss this complaint was also granted. Finally, a second amended complaint was filed. This complaint contained only one count, based upon the "attractive nuisance" theory, alleging in substance that the mulberry tree was an attractive nuisance, and that the partially covered pieces of brick or concrete lying beneath the tree constituted a latent danger or hidden trap, as a consequence of which the child received his fatal injuries.

The motion to dismiss this second amended complaint was denied, and trial was scheduled for the week of May 12, 1980. On March 28, 1980 defendants filed a motion for summary judgment in which it was contended, among other things, that although the debris beneath the tree had been covered with sand, it was nevertheless open and visible; that there was no trap or hidden danger upon the premises, and thus no basis for recovery on the attractive nuisance doctrine; and that the defendants were entitled to summary judgment as a matter of law. On April 15, 1980, prior to ruling on defendants' motion for summary judgment, appellants filed a motion to further amend their complaint, seeking to add a count alleging negligence on the part of the school based upon its duty toward the deceased student as a business invitee. The trial judge entered a final summary judgment, founding his decision upon a determination that a tree is not an attractive nuisance, and that no cause of action on that theory could be supported based upon the undisputed facts. He further ruled that by filing the second amended complaint the plaintiffs appeared to have abandoned their count or claim based upon the business invitee relationship, and that in view of the lateness of the request for amendment, it should be denied.

Appellants obviously seek to draw inferences and conclusions from the undisputed facts in such a way as to support their contention that a jury issue is presented. However, there is no actual disputed fact in this case, with the sole exception of the extent to which the broken pieces of brick or concrete block were exposed and visible, if at all, through the thin covering of sand. For reasons which we will discuss, we find that this did not present a "genuine issue of material fact" precluding entry of a summary judgment for defendants.

We begin our discussion with the observation that issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, but these issues become questions of law if the facts point to but one possible conclusion. See 23 Fla.Jur., Negligence, §§ 129, 133; Loftin v. McGregor, 152 Fla. 813, 14 So.2d 574 (1943); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2nd DCA 1959), cert. dism d., 117 So.2d 731 (Fla. 1960); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla. 1977); Seaboard Coast Line Railroad Company v. Griffis, 381 So.2d 1063 (Fla. 1st DCA 1979).

Unfortunately, these often-repeated maxims offer little guidance for decision in the difficult cases, and this is particularly so when, as here, the ruling of the court has the effect of adjudicating the rights of those seeking redress for the tragic death of an innocent child. However, so long as our system of laws recognizes a dividing line between conduct which may properly require a party to be subjected to the burden of trial and the risk of an adverse jury verdict for damages, and conduct which will not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line. Russell v. Jacksonville Gas Corporation, 117 So.2d 29 (Fla. 1st DCA 1960).

Despite the difficulties, and added complexities brought about by the adoption of the comparative negligence rule ², the trial and appellate courts of Florida continue to find cases requiring a court determination of no liability. ³ Furthermore, it is evident that a court may determine as a matter of law "that reasonable men could not differ," without the appellate judges themselves in a given case agreeing unanimously, and such a determination may also be made even in the face of a contrary decision by a jury composed, ostensibly, of "reasonable men." ⁴

Summary judgment, although sparingly used in negligence cases, ⁵ is nevertheless a proper and necessary means for accomplishing the purpose of terminating litigation short of a jury trial, which satisfies the constitutional "right of access" to the courts as a means of resolving civil disputes. ⁶

There is much discussion of the "attractive nuisance" doctrine in the briefs and we are required to rule on that asserted theory of liability. The trial judge's discussion of the law (as above indicated) is confined solely to that theory of liability. Appellants urge however, that their second amended complaint (admittedly couched in attractive nuisance terms) contains allegation of fact sufficient to require consideration under other theories of liability, and we agree. ⁷ Therefore, notwithstanding the trial judge's ruling that appellants "abandoned" their claim based upon negligent breach of defendant's duties to the minor child as a "business invitee," to have the play and recreation areas of the school grounds in a reasonably safe condition, we have considered the arguments presented by appellants on that ground also. ⁸

Since we have determined that the trial court's ultimate disposition of the case was correct, we affirm, even though we base our decision in part on reasons not stated in the judgment. 3 Fla.Jur.2d, Appellate Review...