CUSICK EX REL. CUSICK v. City of Neptune Beach, 1D99-2884.

• Decision Date: 06 July 2000
• Docket Number: No. 1D99-2884.,1D99-2884.
• Citation: 765 So.2d 175
• Parties: Tommy CUSICK, a minor, by and through his parent and next friend, Terri CUSICK v. CITY OF NEPTUNE BEACH, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

765 So.2d 175

Tommy CUSICK, a minor, by and through his parent and next friend, Terri CUSICK v. CITY OF NEPTUNE BEACH, a municipal corporation, Appellee.

No. 1D99-2884.

District Court of Appeal of Florida, First District.

July 6, 2000.

Richard A. Staggard of Anderson & Howell, P.A., Jacksonville Beach, for Appellants.

Sonya H. Hoener of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for Appellee.

ERVIN, J.

This is an appeal from a final summary judgment entered in a premises liability action which determined that appellee, City of Neptune Beach, owed no duty of care to appellant Terri Cusick, the parent of Tommy Cusick, a minor child who had fallen from a tree in a city-owned public park onto a bench underneath the tree and sustained serious injuries. We disagree with the lower court's decision, and reverse and remand.

The salient facts are recited in the summary judgment order as follows:

(A) The Defendant owned and maintained a park that was open to members of the public, including the minor Plaintiff.

(B) A large tree was in the park. The Defendant placed a common style park bench beneath the tree prior to August 5, 1998.

(C) Prior to August 5, 1998, the Defendant knew that children, including the minor Plaintiff, repeatedly climbed the tree. There is evidence that prior to August 5, 1998 an effort had been made to construct a "fort" like structure in the tree and boards had been nailed onto the tree to facilitate climbing.

(D) At least one of the Defendant's employees, prior to August 5, 1998, was of the opinion that the bench posed a hazard to a child should the child fall from the tree. He expressed those concerns to his superiors who had authority to remove the bench and recommended that the bench be removed from underneath the tree. The bench was not removed.

(E) On August 5, 1998, the minor Plaintiff, who was approximately eight (8) years old, fell from the tree, struck the bench while falling, and sustained injuries as a result of striking the bench.

(F) There is no evidence that a child fell and struck the bench prior to August 5, 1998.

The lower court correctly recognized that the issue to be decided was "whether the Defendant breached a duty owed to the Plaintiff by failing to remove the bench once it had notice that children were climbing the tree and that a child who climbed the tree would likely be injured as a result of striking the bench." In deciding that no such duty was owed, the lower court concluded that the case was controlled by Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981), which held that summary judgment was appropriately granted to a private church school because the school had no responsibility to plaintiffs for the death of one of the defendants' students who fell from a tree on school grounds. The City in particular relies on the following passage from Cassel:

Hard-packed earth, rocks, and projecting or sparsely buried roots from the tree itself abound in nature. It is also a fact of life that innumerable objects are commonly found under trees. Fixed objects such as flower gardens with brick borders, rock gardens, curbs, driveways, sidewalks, fences, benches, and, particularly in play areas, moveable objects such as lunch boxes, roller skates, baseball bats and bicycles. The consequences of a fall of sufficient height from any tree, particularly if a vital part of the body such as the head strikes the ground, can be disastrous, as in the present case, without negligence or fault of any kind on the part of any other person. To impose upon the landowner the duty to anticipate and guard against the consequences of a falling child striking a hard ground surface, or some hard object on the surface of the ground, particularly in the absence of actual notice or knowledge of injuries produced by the same circumstances on the owner's premises in the past, would impose an unreasonable and prohibitively burdensome duty upon the owner which we find no justification in the law to impose.

Id. at 264-65 (emphasis added).

Implicit throughout the opinion was the assumption that if the court were to rule otherwise, the owner would be made the virtual insurer of the safety of children who were permissively on the church's property. A superficial reading of the above language, moreover, suggests that property occupiers owe no duty whatsoever to anyone injured by falls from trees, regardless of the possessors' prior knowledge of hazardous conditions. We decline, however, to read Cassel so broadly. Elsewhere the opinion intimates that the owner or possessor could be held accountable if the evidence revealed that he or she was aware that others had suffered similar accidents. Id. at 266. In the case on review, as in Cassel, there is no such evidence. Nevertheless, Cassel involves one important distinguishing factor not present in the case at bar: The increased hazard to which the child there was exposed, a piece of concrete rock, was partially concealed by a covering of dirt; hence, the enhanced risk of injury was neither known or obvious to either the possessor of the land or its invitees, differing from the situation before us, in which the hazard, a park bench, was clearly obvious to both the City and its invitees alike. Consequently, we are not bound by the holding in Cassel, because the doctrine of stare decisis applies a rule of law established in an earlier case only to a later case that involves a factual situation similar to that in the former. Forman v. Florida Land Holding Corp., 102 So.2d 596 (Fla.1958).

It is also interesting to note that one day before this court filed its opinion in Cassel, we decided Alegre v. Shurkey, 396 So.2d 247 (Fla. 1st DCA 1981), holding that private, residential landowners owed no duty of care to a child who had been injured following a fall from monkey bars onto "hard packed earth." Although Alegre upheld the denial of liability, it is nonetheless important to our decision, because its subsequent history reveals that public possessors of land owe a greater duty of care to invitees than private occupiers. In Alegre the dissent argued that the adoption of comparative negligence in Florida by Hoffman v. Jones, 280 So.2d 431 (Fla.1973), superseded the former doctrine of no duty, as applied to patent hazards, and that Florida courts had been inconsistent in applying the no-duty doctrine in situations involving obviously dangerous conditions. Alegre, 396 So.2d at 250 (Ervin, J. dissenting). The dissent pointed out that Section 340 of the Restatement of the Law of Torts had formerly approved the common law rule exempting landowners from any duty of care for bodily harm suffered on their property by licensees, despite the owners' knowledge of the condition and recognition of the risk involved. Section 340 was superseded by Section 343A, which provided, in part:

(1) 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]mphasis supplied[.])

The dissent continued:

Comment f to Section 343A explicitly states that the occupier is not absolved from any duty owed to an invitee merely because the risk is patent. Note the following: "[T]he fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk.... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances." An evergrowing number of cases have adopted the provisions of Section 343A. See cases cited, Annot., 33 A.L.R.3d 230, 254-262, s 4[c] (1971). Additionally, an evergrowing number of Florida district courts of appeal opinions post-dating Hoffman and Blackburn [v. Dorta, 348 So.2d 287 (Fla.1977)] have held that the obviousness of a dangerous condition is an issue of comparative negligence and is not an absolute bar to either an invitee's or a tenant's recovery.

Alegre, 396 So.2d at 251.

In 1984, the Third District Court of Appeal, in Ameller ex rel. Ameller v. City of Miami, 447 So.2d 1014 (Fla. 3d DCA 1984), adopted the rationale of the...