Gresham v. Courson

• Decision Date: 15 June 1965
• Docket Number: Nos. G-54,G-55,s. G-54
• Citation: Gresham v. Courson, 177 So.2d 33 (Fla. App. 1965)
• Parties: Marvin GRESHAM, W. E. Rion, J. N. Anderson, S. K. Lindsey, and Harry Edwards, as and comprising the Board of Trustees for the Alachua General Hospital, and Alachua County, a political subdivision of the State of Florida, Appellants, v. Clifford C. COURSON, as Administrator of the Estate of Dale Warren Courson, deceased, Appellee. Marvin GRESHAM, W. E. Rion, J. N. Anderson, S. K. Lindsey, and Harry Edwards, as and comprising the Board of Trustees for the Alachus General Hospital, and Alachua County, a political subdivision of the State of Florida, Appellants, v. Clifford C. COURSON, Appellee.
• Court: Florida District Court of Appeals

Page 33

177 So.2d 33

Marvin GRESHAM, W. E. Rion, J. N. Anderson, S. K. Lindsey, and Harry Edwards, as and comprising the Board of Trustees for the Alachua General Hospital, and Alachua County, a political subdivision of the State of Florida, Appellants, v. Clifford C. COURSON, as Administrator of the Estate of Dale Warren Courson, deceased, Appellee.

Marvin GRESHAM, W. E. Rion, J. N. Anderson, S. K. Lindsey, and Harry Edwards, as and comprising the Board of Trustees for the Alachus General Hospital, and Alachua County, a political subdivision of the State of Florida, Appellants, v. Clifford C. COURSON, Appellee.

Nos. G-54, G-55.

District Court of Appeal of Florida, First District.

June 15, 1965.

Rehearing Denied Aug. 6, 1965.

Gray, Chandler, O'Neal, Carlisle & Avera, Gainesville, for appellants.

Nichols, Gaither, Beckham, Colson & Spence, Miami, for appellee.

STURGIS, Chief Judge.

On March 1, 1963, Dale Warren Courson, the 11-month-old child of appellee Clifford C. Courson, plaintiff below, died in consequence of having been strangled on a cord around his neck from which was suspended a pacifier. The strangulation occurred in a day nursery maintained at the Alachua General Hospital in Gainesville, Florida, for the convenience of its employees, who paid a fee for the service. Two negligence actions were filed, consolidated for trial in the court below, and resulted in final judgments for plaintiff from which appeals were taken and are consolidated for the purpose of review.

In one case (our file No. G-54) the plaintiff (appellee), as administrator of the estate of his deceased child, was awarded a jury verdict for $25,000.00 damages against the members of the Board of Trustees for the Alachua General Hospital, in their relation as such, and also against Alachua County, a political subdivision of the State of Florida, defendants (appellants), based on a claim for damages to decedent's prospective estate and for his funeral expenses. A motion to vacate said judgment was denied but motion for a new trial was granted contingent upon a remittitur of $20,000.00, to which plaintiff consented.

By the other suit (our file No. G-55) plaintiff Courson, proceeding individually, sued said defendants under Section 768.03, Florida Statutes, F.S.A., for the wrongful death of his said child, claiming damages for the loss of the child's services during minority and for past and future mental pain and anguish of his surviving parents. In this action the jury returned a verdict of $100,000.00 for plaintiff and motions to vacate the judgment, for a remittitur, and for a new trial were denied by an order in which the trial judge said:

'* * * it is the opinion of this Court that this case was very capably and fairly tried by counsel for both sides and the Court feels that the verdict rendered by the jury in this case was a result of careful and deliberate consideration by the jury of the factual disputes that existed as to the material issues in this cause, and it is the position of the Court that these matters were fairly determined by the jury * * *.'

Defendant-appellants' points on appeal (1) challenge the sufficiency of the evidence to sustain the jury's finding of negligence on the part of the defendants, and (2) challenge the verdict of $100,000.00 in the father's action on the ground that it is excessive. We find no merit in the first contention. Our conclusion with respect to the second, however, impels a summary of the facts.

Mr. and Mrs. Courson were married in 1956. He has a Doctor's degree in education and is employed at the P. K. Yonge Laboratory School in Gainesville, Florida. His wife, a medical technician, was employed by the defendant hospital. Their first and only natural child, Dale, was not born until March 24, 1964. In November of 1957 Mrs. Courson, being concerned with her failure to conceive, consulted with a specialist in obstetrics to see what might be done to induce pregnancy; she thereafter had considerable medical treatment and study of her condition, and in April of 1959 underwent surgery to aid her in having children.

In the summer of 1961 the defendant hospital established a day nursery in which a fee was charged to care for children of its daytime employees. The children were divided into three age groups, generally referred to as 'crib babies,' 'toddlers,' and 'older children.' The crib babies were kept separate from the other children in a room equipped with seven baby cribs and a playpen. Normally the day nursery had five employees in all. On the day of the accident there were only four employees working in the nursery, two of whom, Mrs. Rhoda Mullis and Mrs. Betty Smith, were caring for the crib babies at the time the accident to plaintiff's child was discovered.

The events leading up to the accident were as follows:

Mrs. Courson, an employee of the hospital, first brought Dale to the day nursery on Monday, February 25, 1963, and continued to do so each day until his death on the following Friday, March 1. Each morning before leaving him at the nursery she placed a string around his neck with a pacifier attached thereto and it remained there each day until she picked him up after work in the evening. No one at the nursery informed her that the pacifier and string were dangerous and she did not consider them so. She did not instruct any of the nursery personnel to remove them. On February 27, Mrs. Mullis, the employee in charge of the nursery, wrote Mrs. Courson a note asking her not to visit the child during her lunch hour because it upset him.

On March 1 Mrs. Mullis completed feeding Dale at 11:50 a. m. and was preparing to put him in his crib when she was visited by the defendant's Director of Nursing Service, a Mrs. Morrison. About ten minutes later Mrs. Morrison left and Mrs. Mullis then called Mrs. Smith into the crib room, washed Dale's face, and put him down in his crib. When Mrs. Smith came into the crib room Mrs. Mullis took some soiled diapers out of the room and washed them, then checked on the other children in the nursery and about fifteen minutes later returned. At that time Mrs. Smith was changing a baby's clothes. Mrs. Mullis walked over to the crib adjoining Dale's where she picked up a child and took it to a counter in the room to feed it. At about that time a Mrs. Davis came into the crib room and asked Mrs. Smith to see the Courson baby. Mrs. Mullis then heard Mrs. Davis inquire, 'Is he choked?' and immediately looked around and saw Mrs. Smith with the Courson child in her arms. The child was forthwith taken to the emergency room of the hospital for treatment.

Mrs. Davis testified that she visited the nursery around the noon hour to check on her child; that when she went into the crib room Mrs. Smith and Mrs. Mullis were there, Mrs. Mullis preparing to feed a baby; that she asked Mrs. Smith where the Courson child was and seeing that it was lying on its stomach, walked around the crib to see its face, saw the string around its neck and noted that it was caught on a knob on a corner of the crib. She stated that it was only on close inspection when she bent over to see Dale's face that she saw the string and that she then assisted Mrs. Smith in taking the child to the emergency room.

Dr. Murphree, a practicing physician, testified that a few minutes before 12:30 p. m. on that day he observed a visual emergency signal and answered the call by going to the emergency room where he found Dale on the emergency room table; that Dale had no pulse or respiration and there were marks on the front half of his neck; that measures were taken which restored the heart beat and respiration and the child was eventually transferred to the University of Florida Medical Center where he died about 7:00 or 7:30 o'clock the next morning. Dr. Murphree testified that the mark on its neck was obviously from a string of some sort and the cause of death was lack of breating for too long a period of time.

There was in effect on March 1, 1963, a regulation of the Child Care Center Board for Alachua County as follows:

'There shall be adequate and competent adult staff members to care for the children at all times, with a minimum of two adults, two adult members on duty at all times.'

Dr. Edward G. Byrne, the Alachua County Health Officer, testified that in his opinion the nursery area where the children were kept should be under observation at all times and that one adult for eight infant crib children was an adequate ratio. On March 1, 1963, during the critical period involved, there were seven children in the crib room and either Mrs. Mullis or Mrs. Smith was physically present.

Subsequent efforts of Mr. and Mrs. Courson to have other children had proved unsuccessful; however, they adopted a male child (Christopher) who was 9 1/2 months of age at the date of the trial. Following Dale's death Mrs. Courson lost 22 pounds but had regained 8 pounds prior to the trial. Mr. Courson testified that following Dale's death his room at their home was kept locked for three or four months, that his wife was very nervous, easily upset, and cried easily, but that her mental and emotional condition improved after they adopted Christopher.

It is established that Mr. and Mrs. Courson were in a state of emotional shock after learning of Dale's accident and following his death were distraught; that Mrs. Courson required sedatives and tranquilizers in large dosages and could not rest; that they were competent parents and had a happy home. On the date of the trial Mrs. Courson was 33 years of age and Mr. Courson 31.

As hereinabove noted, we conclude that the evidence is sufficient to support the jury's verdict on the issue of liability. Where the exercise of ordinary care is required, negligence is commonly defined as the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or the doing of what a reasonable and prudent person would not have done under...