Collias v. Gateway Acad. of Walton Cnty., Inc.

• Decision Date: 11 January 2021
• Docket Number: No. 1D19-262,1D19-262
• Citation: 313 So.3d 163
• Parties: Sophia COLLIAS, a minor, BY AND THROUGH her parents and legal guardians, John COLLIAS and Helen Collias, both individually and as parents of Sophia Collias, Appellants, v. GATEWAY ACADEMY OF WALTON COUNTY, INC., Appellee.
• Court: Florida District Court of Appeals

313 So.3d 163

Sophia COLLIAS, a minor, BY AND THROUGH her parents and legal guardians, John COLLIAS and Helen Collias, both individually and as parents of Sophia Collias, Appellants,

v.GATEWAY ACADEMY OF WALTON COUNTY, INC., Appellee.

No. 1D19-262

District Court of Appeal of Florida, First District.

January 11, 2021

Marcia K. Lippincott, Lake Mary, and Jay W. Manuel, Panama City, for Appellants.

Cecil L. Davis, Jr., of Banker Lopez Gassler P.A., Tallahassee; Charles W. Hall and DeeAnn J. McLemore of Banker Lopez Gassler P.A., St. Petersburg; Sarah Lahlou-Amine of Banker Lopez Gassler P.A., Tampa, for Appellee.

Makar, J.

During gym class on a makeshift running course in her private school's indoor auditorium, seven-year-old second-grader Sophia Collias—on her third lap—was distracted and ran into a pedestal table with a glass edge at mouth level, causing the loss of her permanent teeth and resulting in long-term injuries. She and her parents sued the school alleging various negligence theories including: the breach of a legal duty to maintain a safe premises, creating a hazardous condition by using the auditorium for running and placing the glass top table in the children's running course, failing to warn the children of the risk the table created, failing to properly supervise the children's indoor running class, and so on. After discovery, including the depositions of both Sophia and the PE instructor and an expert affidavit opining on the school's legal duties and shortcomings, the trial judge entered final summary judgment for the school on the basis that the table was an "open and obvious" risk of which Sophia was aware, such that her injury was her fault with no negligence on the school's part. In doing so, the trial judge erred by resolving factual disputes in favor of the school (despite acknowledging divergent testimony), overlooking relevant evidence, and foreclosing alternative negligence theories other than the duty to warn claim.

The standard for summary judgment was recently stated as follows (in a trip and fall case):

The granting of summary judgment is subject to de novo review. The appellate court is required to ‘consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party ... and if the slightest doubt exists, the summary judgment must be reversed.’ In negligence suits particularly, ‘summary judgments should be cautiously granted.’ ‘If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.’ Summary judgment should not be granted ‘unless the facts are so crystallized that nothing remains but questions of law.’

Brookie v. Winn-Dixie Stores, Inc. , 213 So. 3d 1129, 1131 (Fla. 1st DCA 2017) (internal citations omitted). Based upon this standard of review and the discussion that follows, triable issues exist that require submission to a jury.

At the outset, the trial court resolved the entire case on the basis that the pedestal table was an "open and obvious" hazard for which no duty to warn existed. In doing so, it overlooked that other negligence theories—ones not reliant on a duty to warn—remained for adjudication. It also jumped the gun on the duty to warn claim.

First of all, courts hesitate to absolve a property owner of liability on an "open and obvious" theory unless the crystalized and undisputed facts establish, as a matter of law, that a plaintiff knowingly undertook an open and obvious risk for which no warning is necessary. In this case, factual issues exist as to whether the pedestal table was so "open, obvious and ordinary" as to make it—as a matter of law—the type of risk that a seven-year-old child engaging in an indoor running exercise would foreseeably perceive and avoid. Unlike Brookie , where an adult customer tripped over a pallet as he exited a Winn-Dixie grocery store—a pallet he admitted he saw and walked around and avoided twice beforehand—the seven-year-old student in this case cannot be deemed to have the same degree of knowledge as an adult of the risks the pedestal table presented under the circumstances. That's because it has long been recognized in Florida that "[t]hose who invite children, who have not arrived at the age of discretion,¹ to go upon their premises are required to exercise a relatively higher degree of care for their safety than to adults. That degree of care is commensurate with the attending facts and circumstances of each case." Burdine's, Inc. v. McConnell , 146 Fla. 512, 1 So. 2d 462, 463 (1941) ; see also City of Miami v. Ameller , 472 So. 2d 728, 729 (Fla. 1985) (approving the Third District decision adopting Judge Ervin's opinion in Alegre v. Shurkey , 396 So. 2d 247, 249 (Fla. 1st DCA 1981) (Ervin, J., concurring in part, dissenting in part) ("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.")).

This point is important because the second-graders were required to run around the pedestal table despite its potential risk of harm; and the foreseeability of a second-grader becoming distracted while running indoors in a confined area with twenty classmates falls squarely within human experience as the type of situation where common sense dictates a duty to exercise reasonable care. Cf. Brookie , 213 So. 3d at 1137 (noting it would be improper for every business to insure against "unreasonable inattentiveness of invitees"). Given disputed facts about where the pedestal table was placed, whether it had been on the running course before, and the reasonableness of a seven-year-old's potential distraction under the circumstances, it cannot be said that the pedestal table was "open and obvious" as a matter of law. See, e.g. , Moultrie v. Consol. Stores Int'l Corp. , 764 So. 2d 637, 640 (Fla. 1st DCA 2000) (concluding that "there appear to be material issues of fact as to whether the pallet was ‘open and obvious,’ and if so, whether appellee should have anticipated that as a general rule, adult shoppers do not focus on the floor of a store aisle when moving toward merchandise they propose to buy").

Even if the pedestal table was considered an open and obvious danger to a second-grader under the circumstances, it is a separate and independent issue of negligence whether the school created a hazardous condition by using the auditorium for running, placing the glass top table in the pathway of the children's running course, failing to properly supervise the children's indoor running class, and generally failing to maintain a safe premises under the circumstances. Courts statewide have repeatedly held that the "open and obvious danger doctrine" can absolve a property owner on a failure to warn theory, but it does not absolve a property owner's duty to protect invitees from reasonably foreseeable risks, even if the invitees are aware of dangerous conditions, particularly ones they cannot avoid such as entries, passageways, sidewalks, stairs, and so on (here the seven-year-old had no choice but to run close to the pedestal table). Marriott Int'l, Inc. v. Perez-Melendez , 855 So. 2d 624, 631 (Fla. 5th DCA 2003) ("The courts have consistently held that while the open and obvious danger doctrine may in certain circumstances discharge the duty to warn, it does not discharge the landowner's duty to maintain the property in a reasonably safe condition."); Regency Lake Apartments Assocs., Ltd. v. French , 590 So. 2d 970, 973 (Fla. 1st DCA 1991) ("The discharge of the duty to warn does not relieve Regency of its duty to maintain the premises in a reasonably safe condition by correcting or eliminating dangers."); Hancock v. Dep't of Corr. , 585 So. 2d 1068, 1071 (Fla. 1st DCA 1991) ("As the owner and operator of the premises with knowledge of the condition of the broken handrail, the Department also owed a duty to persons such as Hancock to protect them from reasonably foreseeable risks, even though he was aware of the dangerous condition."); see also Aaron v. Palatka Mall, L.L.C. , 908 So. 2d 574, 578 (Fla. 5th DCA 2005) ("When an injured party alleges that the owner or possessor breached the duty to keep the premises in a reasonably safe condition, an issue of fact is generally raised as to whether the condition was dangerous and whether the owner or possessor should have anticipated that the dangerous condition would cause injury despite the fact it was open and obvious.").²

It is only when the risk of harm is so "open and obvious" that "no reasonable person would injure himself" under the circumstances that the duty to warn and the duty to make premises safe are simultaneously met. See, e.g. , Brookie , 213 So. 3d at 1136 ; see also K.G. By & Through Grajeda v. Winter Springs Cmty. Evangelical Congregational Church , 509 So. 2d 384, 385 (Fla. 5th DCA 1987) (finding that "we do not think that a tree with a surrounding brick border constitutes a dangerous condition or concealed peril. There was therefore no duty on the part of the church to warn or take other precautionary measures, such as installing better lighting"). Like the pallet in Brookie , uneven pavement, traffic bumps, and steps of which invitees are aware are matters "of common knowledge or every day life." Moultrie , 764 So. 2d at 640. As in Moultrie , however, "[s]uch is not the case here." Id.

In this case, no question exists that the school had a legal duty to make its premises safe for its students including those portions of its facilities used for physical education activities. See, e.g. , Carr ex rel. Carr v. Sch. Bd. of Pasco Cnty. , 921 So. 2d 825, 826–27 (Fla. 2d DCA 2006) (reversing trial judge's entry of judgment for school board, which overrode jury's...