Jenkins v. City of Miami Beach
| Decision Date | 14 October 1980 |
| Docket Number | No. 79-1491,79-1491 |
| Citation | 389 So.2d 1195 |
| Parties | Tammy JENKINS, etc., et al., Appellants, v. CITY OF MIAMI BEACH, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Nachwalter, Christie & Falk, Jay M. Levy, Miami, for appellants.
Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellees.
Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
Tammy Jenkins, a young girl, was injured late at night in Stillwater Park. The park is owned by the City of Miami Beach. The injury occurred when a young boy threw a piece of copper coil which he had pulled free from a park water fountain. The coil hit Tammy in the eye. Tammy's mother, as her natural guardian, brought suit against the City. The suit reached its premature end when the trial court entered a summary final judgment in favor of the City. Tammy seeks to revive it here.
In her effort to defeat the entry of the summary final judgment, Tammy contends that (1) the City's failure to supervise the park at night despite its knowledge that it was frequented by minors was the proximate cause of Tammy's injury; and (2) the City's failure to properly maintain the water fountain (allowing the copper coil to become loose enough to be pulled free) was the proximate cause of Tammy's injury, since the young boy's intervening act was arguably foreseeable given the City's admitted knowledge of previous acts of vandalism and "unruly and undisciplined conduct" engaged in by minors in the park at night.
We reject both contentions. Under the four-part inquiry laid down in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), commended to our use in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), it is apparent that the City's decision to provide no supervision in Stillwater Park at night is a planning or discretionary governmental decision for which the City cannot be held liable in tort. 1 Wong v. City of Miami, 237 So.2d 132 (Fla.1970); Hernandez v. City of Miami, 305 So.2d 277 (Fla. 3d DCA 1974). Compare Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla. 3d DCA 1979). 2 However, the very same inquiry requires us to conclude that the City's alleged negligent maintenance of a water fountain in the park is operational level activity for which it can be held liable. Commercial Carrier Corporation v. Indian River County, supra; Cheney v. Dade County, 371 So.2d 1010 (Fla.1979). In the present case, however, liability for the alleged negligent maintenance of the water fountain can only attach if the intervening criminal act of the young boy was foreseeable. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1978); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976); Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980). The City's knowledge of previous acts of vandalism committed in the park makes it foreseeable that willful and malicious destruction of property may occur. The City's knowledge that minors engaged in "unruly and undisciplined conduct" makes it foreseeable that minors will engage in conduct difficult to govern or control. But such foreseeability is, without more, unrelated to the alleged negligence of the City.
The question whether the boy's act, clearly an intervening cause of Tammy's injury, was foreseeable so as to render the City liable can only be answered affirmatively if "the harm that occurred was within the scope of the danger attributable to the defendant's negligent conduct." Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980). The record before us does not reflect that the City had knowledge that its failure to properly maintain the water fountain had in the past led to this type of injury, or that "in the field of human experience," allowing a loose copper coil on the water fountain had so frequently resulted in its being torn free and used to assault others that the City should have expected such a thing to occur in its park. Gibson v. Avis Rent-A-Car Systems, Inc., supra. In short, the boy's intervening act was not, as a matter of law, foreseeable.
Accordingly, the summary final judgment entered in favor of the City of Miami Beach is affirmed.
Affirmed.
The majority is correct that the city's decision to provide no supervision in Stillwater Park is a discretionary decision for which, under Section 768.28, Florida Statutes (1975), no tort...
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