City of Jacksonville v. Raulerson, ZZ-214

• Decision Date: 08 June 1982
• Docket Number: No. ZZ-214,ZZ-214
• Citation: 415 So.2d 1303
• Parties: CITY OF JACKSONVILLE, a body politic and corporate, Appellant, v. Sean Michael RAULERSON, a minor, by Peggy Ann Raulerson Eckerson, as natural guardian and next friend, Appellee.
• Court: Florida District Court of Appeals

Page 1303

415 So.2d 1303

CITY OF JACKSONVILLE, a body politic and corporate, Appellant, v. Sean Michael RAULERSON, a minor, by Peggy Ann Raulerson Eckerson, as natural guardian and next friend, Appellee.

No. ZZ-214.

District Court of Appeal of Florida First District.

June 8, 1982.

Rehearing Denied July 22, 1982.

Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Donald R. Hazouri, Asst. Counsels, Jacksonville, for appellant.

Dana G. Bradford, II, and Michael G. Tanner of Mahoney, Hadlow & Adams, Jacksonville, for appellee.

PER CURIAM.

Jacksonville appeals from the money judgment in the amount of $50,000 entered on a jury verdict of $125,001 for Sean Michael Raulerson, a 10-year-old boy whose eye was burned by lime spilling from a machine used to line the ballpark baselines in Jacksonville's Glynlea Recreational Park. Sean's mother and next friend also appeals in Sean's behalf from the circuit court's remission of the judgment to $50,000, the statutory limit of Jacksonville's liability. Sec. 768.28, Fla.Stat. (1979).

We first address the troubling question, raised by this Court but not by the parties at any stage, of whether it is sufficiently clear in this record that the real party plaintiff in interest is the minor Sean, rather than his mother the nominal plaintiff. Beyond mere questions of tidiness in the captions and preliminary recitals of pleadings and case reports, we are concerned to assure that Sean or his mother, whoever is the real plaintiff in interest, is bound by this judgment, and that the other is not. See Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Brown v. Caldwell, 389 So.2d 287 (Fla. 1st DCA 1980); Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA 1975).

The form of an action by a child having no appointed guardian should be, as now stated in the caption of this opinion, "SEAN MICHAEL RAULERSON, a minor, by PEGGY ANN RAULERSON ECKERSON, as natural guardian and next friend, plaintiff." But the complaint in this case established the form of the action, both in the caption and in the body of the complaint, as that of "PEGGY ANN RAULERSON, as natural guardian and next friend of SEAN MICHAEL RAULERSON, a minor, plaintiff." (Ms. Raulerson's later marriage to Eckerson, and her adoption of his surname, is inconsequential to the problem now discussed.) Though both the caption and text of plaintiff's complaint say that Ms. Raulerson's interest in the litigation is only to represent her son, whose age disability prevents him from suing alone, we were concerned that the complaint apparent designation of Ms. Raulerson as plaintiff, albeit as natural guardian and next friend of her son, jeopardized Sean's recovery in this action for the personal injuries proved. See also Sanderson's Administrators v. Sanderson, 17 Fla. 820 (1880).

The record in this case shows beyond doubt that Sean is the real party plaintiff in interest, and that his mother asserted no claim for medical bills or other damages she conceivably may have sustained individually. The proof of damages was limited to damages sustained by and properly recoverable for Sean. Sean's identity as the real party plaintiff in interest was underscored in an exchange between Sean's counsel and the trial judge during counsel's opening statement to the jury:

JUDGE COX. Counselor, let me make a correction. The actual true plaintiff is the minor who is suing by and through his mother as his next friend.

MR. BRADFORD: As next friend, yes, sir.

THE COURT: Let's not have any confusion about who the real plaintiff is.

MR. BRADFORD: That's exactly right. The real plaintiff is the boy, and the mother is there for the reason Judge Cox just told you. She's not advancing any claim of her own. She's not involved in the claim.

Due to the trial court's alertness, important subsequent proceedings were conformed to the reality that "the 'next friend,' who in this instance was the plaintiff's mother, does not become a party to the suit." Brown, supra, 389 So.2d at 288. Though the ambiguous caption was not corrected, the jury's verdict in form and fact was rendered for Sean. The judgment entered on the verdict was for Sean.

We willingly regard the quoted exchange between Judge Cox and plaintiff's counsel as tantamount to amending plaintiff's pleadings to correct a misnomer or ambiguous description in the pleadings of the party plaintiff. Fla.R.Civ.P. 1.190(e). No prejudice to the City of Jacksonville or to any other party occurred or has been asserted. We now correct the caption of the case to complete the clarification, and pass on to the merits.

The City of Jacksonville contends that the injury received by the minor was not foreseeable and was the result of an independent, efficient, and intervening cause. We affirm for the reason that under the circumstances of this case, those issues were properly submitted to the jury to be decided.

The evidence at trial included the following. The minor plaintiff sustained the injury at a public park owned by the City. Sean was a member of Southside Youth Athletic Association ("SYAA"), which sponsored a league and baseball games at the park. City crews routinely maintained the baseball fields at the park. Further, the City promulgated the rules of play and provided the umpires for the baseball games. SYAA also participated in the preparation of the playing fields including the lining of the playing field with lime. The equipment and supplies, including two "field liner" machines containing lime, used to prepare the fields were stored in a building located on the grounds. On the day of the accident, an employee of SYAA had obtained the equipment and put it in the back of a truck. He then drove over to the playing field, leaving the equipment unattended on the truck while he raked the field. Shortly thereafter, while the baseball field was being prepared for the evening game, Sean's grandmother left him unattended at the park. Sean was not a member of either team scheduled to play that night. Sean had previously helped in the lining of the fields in the presence of umpires.

Upon arriving at the park, Sean saw the truck containing the equipment and went over and attempted to remove a "field liner" machine which contained lime. As he attempted to remove the machine from the truck, he turned it over spilling some of the lime onto his face and into his left eye. Although two SYAA coaches immediately washed the eye with water and drove him home, the lime burns resulted in a permanent impairment of vision of the left eye.

The City had in the past furnished lime for use on the field. In some instances SYAA had obtained lime from a nearby nursery. Although we cannot be completely sure from the evidence that the lime in question was furnished by the City, there is ample evidence to support a jury's conclusion that it was furnished by the City.

In the seven years prior to Sean's accident, eight employees of the City had sustained eye injuries while using lime to line playing fields. No permanent disability or loss of vision was reported in any of those incidents. The City had been using lime for more than 30 years. There was no evidence of any minors ever having been previously injured by lime on a city playing field. There was evidence that an inert marble dust was available as an alternative to the use of the lime and that the City planned to switch to that substance but continued to use the lime in stock until it was used up.

The City has raised three points on appeal: (1) that the injury to the minor was unforeseeable; (2) that the injury was the result of an independent, efficient and intervening cause; and (3) that the minor himself was guilty of negligence as a matter of law.

We do not disagree with the argument put forward by appellant that legal cause exists only where injuries are the reasonably foreseeable result of a negligent act and that generally, foreseeability is a question of law initially. However, when reasonable persons can differ as to whether a particular injury is foreseeable, it becomes a jury question. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977). We find that the evidence presented made foreseeability a jury question. The jury could reasonably have found that the lime was an inherently dangerous substance which was dispensed by the City. There was evidence that Sean had helped in the lining of the field in the presence of city employees. City employees had previously been injured through the use of the lime. Therefore, it was within the province of the jury to determine that it was reasonably foreseeable that the use of the lime would result in an eye injury to a child which occurred and which could have been reasonably prevented by an available alternative to the use of lime. The jury's finding of no contributory negligence on the part of Sean should likewise be undisturbed. While it may appear to some that Sean contributed to his own injury by taking it upon himself to climb on the unattended truck and lift the machine, reasonable men could also conclude that, under the circumstances, children of Sean's age, capacity, and intelligence who previously worked with the machine could have been expected to do the same. Thus, the jury's verdict should be sustained.

The appellee cross appeals challenging the trial court's limitation of damages to...