City of Milton v. Broxson

• Decision Date: 28 October 1987
• Docket Number: No. BK-119,BK-119
• Citation: 514 So.2d 1116,12 Fla. L. Weekly 2484
• Parties: 12 Fla. L. Weekly 2484 CITY OF MILTON, Florida, Appellant, v. Charles Anthony BROXSON, Appellee.
• Court: Florida District Court of Appeals

Page 1116

514 So.2d 1116

12 Fla. L. Weekly 2484

CITY OF MILTON, Florida, Appellant, v. Charles Anthony BROXSON, Appellee.

No. BK-119.

District Court of Appeal of Florida First District.

Oct. 28, 1987.

Rehearing Denied Nov. 24, 1987.

J. Craig Knox and Fred M. Johnson of Fuller & Johnson, P.A., Tallahassee, for appellant.

Robert J. Mayes and Eric H. Faddis of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.

NIMMONS, Judge.

The City of Milton appeals from a final judgment entered upon a jury verdict in favor of the plaintiff/appellee, who was seriously injured by an errantly-thrown softball in a city-owned park. Appellant claims that the trial court erred in denying its motion for summary judgment ¹ and its motions for directed verdict made after the close of the plaintiff's case and after the close of all the evidence. We disagree and affirm.

One evening in June 1980, the almost 18 year-old plaintiff was in attendance at Sander's Creek Park watching a softball game in progress. The plaintiff left his seat in the bleachers and walked over to an area behind the third base dugout. After a few minutes, the plaintiff turned and appeared to be headed back to the bleachers when he was struck in the head by a softball thrown by Robert Nelson, one of the players who was warming up with several other players for the next scheduled game. The area where the plaintiff was injured was adjacent to the bleachers. There were lawn chairs in that area where spectators commonly sat to watch the games. The area in which Robert Nelson and the other players were warming up was in close proximity to the area where the plaintiff was struck. In fact, some of the spectators in lawn chairs were within five feet from some of the players warming up.

There was evidence that there was no area designated for players to warm up while waiting for the prior game to end, that it was a common practice well known to the appellant for the players to warm up in the same area as described above, that spectators had been struck in the past by balls errantly thrown by players warming up in that area, and that the appellant, although having knowledge of such instances and the hazardous nature of such activities, did nothing (until after the subject accident) to prevent the players from warming up in such close proximity to spectators. ²

Appellant contends that it was not legally responsible for the plaintiff's injuries because it had no duty to warn him of dangers or risks which should have been apparent to those attending the softball games at the subject park. Appellant points out the fact that the plaintiff himself had played softball in the past, had previously attended games at that park as a spectator, and was familiar with the risks involved in the positioning of oneself in the subject area while players were warming up.

The plaintiff on the evening in question occupied the position of an invitee vis-a-vis the appellant/City. Since the Florida Supreme Court adopted the "invitation test," an invitee may be either a business visitor or a public invitee. Post v. Lunney, 261 So.2d 146 (Fla.1972); Wood v. Camp, 284 So.2d 691 (Fla.1973); 41 Fla.Jur.2d Premises Liability Section 7. In Florida, the landowner owes the following duties to an invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 970 (Fla.1977); Cassel v. Price, 396 So.2d 258, 264 (Fla. 1st DCA 1981); Emmons v. Baptist Hospital, 478 So.2d 440 (Fla. 1st DCA 1985).

With respect to the landowner's duty to warn the plaintiff, a prerequisite to such duty is that the defendant's knowledge of the danger must be superior to that of the business invitee. Hunt v. Slippery Dip of Jacksonville, Inc., 453 So.2d 139 (Fla. 1st DCA 1984); Emmons, supra. We agree with appellant that, although the appellant had knowledge of the danger to spectators situated in the area where players were allowed to warm up, the appellant's knowledge of such danger was no greater than the plaintiff's knowledge. However, the inquiry does not end there for, as indicated above, the landowner also has the duty to invitees to maintain the premises in a reasonably safe condition, including the elimination of dangerous conditions of which the landowner has actual or constructive notice. Budet v. K-Mart Corporation, 491 So.2d 1248 (Fla. 2d DCA 1986).

In Restatement of Torts, Second, Section 343A, the following is stated:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (e.s.)

This section has been recognized as valid authority in Florida. E.g. Emmons, supra; Lynch v. Brown, 489 So.2d 65 (Fla. 1st DCA 1986).

In Stewart v. Boho, Inc., 493 So.2d 95 (Fla. 4th DCA 1986), our sister court explained ³:

Where an invitee's knowledge of a dangerous condition will adequately protect him from harm, an owner's duty with regard to the condition is limited to giving proper warning, where required. The invitee can be expected to protect himself against such risks. However, where the danger is of such a nature that the owner should reasonably anticipate that it creates an unreasonable risk of harm to an invitee notwithstanding a warning or the invitee's knowledge of the danger, then reasonable care may require that additional precautions be taken for the safety of the invitee. Pittman v. Volusia County, 380 So.2d 1192, 1194 (Fla. 5th DCA 1980), citing and quoting from W. Prosser, Law of Torts, 394-395 (4th Ed 1971) and Restatement of Torts, Second, Sec. 343 A. Concerning such hazards, the owner can be held liable to the invitee for failing to exercise reasonable care, even though the invitee was himself negligent in encountering the known danger, thus subjecting his claim to the defense of comparative negligence. Kolosky v. Winn Dixie Stores, Inc., 472 So.2d 891 (Fla. 4th DCA 1985); Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980).

Id. at p. 96 (footnote omitted).

We believe that it can fairly be said that the hazardous activity which the appellant allowed to continue without taking appropriate steps for the safety of the spectators was of such a nature that the appellant should have reasonably anticipated that such hazardous activity would cause spectator injury notwithstanding the spectators' knowledge of the danger. At least the evidence respecting the above was such that the case was properly permitted to go to the jury. Compare Emmons, supra (under facts of that case, actions of hospital in maintaining the area in and about hospital room did not create unreasonable risk of harm to visitor having knowledge of hazardous condition).

It is well settled that the authority of a trial court to direct a verdict must be exercised with caution and that a verdict should not be directed for a defendant unless it is clear that there is no evidence whatever that could in law support a verdict for the plaintiff. White v. Arvanitis, 424 So.2d 886, 888 (Fla. 1st DCA 1982); Budgen v. Brady, 103 So.2d 672, 674 (Fla. 1st DCA 1958). We conclude that the trial court did not err in denying the motions for directed verdict on the grounds asserted by it that there was no breach of duty by it to the plaintiff.

Appellant also contends that the trial court should have directed a verdict in its favor on the grounds of sovereign immunity. We disagree.

Under the four-category criteria established in Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), the subject recreation park appears to qualify best as a Category 4 function or activity of appellant. This category includes those functions providing professional, educational and general services for the health and welfare of the citizens. ⁴ Id. at 921. In accordance with Trianon Park, the next step is to determine, by the application of the Commercial Carrier ⁵ standards, whether the defendant's acts or omissions were of a planning or operational variety.

While it is a discretionary or planning level decision for a governmental entity to operate a recreational facility to accommodate organized softball games and spectators of such games, once the government decides to operate such a facility, it assumes the duty to operate the facility safely--just as a private individual would be so obligated--without benefit of sovereign immunity. See Avallone v. Board of County Commissioners of Citrus County, 493 So.2d 1002, 1005 (Fla.1986). Appellant urges a different result where, as here, the hazardous condition or activity is not concealed, but instead apparent to the plaintiff. Under current sovereign immunity analysis, as we understand it, this--that is, the plaintiff's awareness of the hazardous condition--becomes a factor only if a Trianon Park Category III or IV function is at the planning level, in which case an exception to planning level immunity may "kick in" under the Neilson trilogy. ⁶ Under those cases, there is immunity for planning level activities unless their performance creates a dangerous condition which is known to the government and not apparent to the public. However, as we have said, the Category IV function in the instant case was at the operational level and the plaintiff's awareness of the hazardous activity or condition is therefore of no moment with respect to the sovereign immunity issue. Rather, the appellant's liability must be determined by the common law standards previously discussed in this opinion governing the duty of landowners to invitees.

AFFIRMED.

JOANOS, J., concurs.

TH...