Nielsen v. City of Sarasota, No. 30

CourtCourt of Appeal of Florida (US)
Writing for the CourtSMITH, FRANK A.; KANNER, C. J., and ALLEN
Citation110 So.2d 417
PartiesKenneth NIELSEN, a minor, by his mother and next friend, Clara Nielsen, and Clara Nielsen, individually, Appellants, v. CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Postmerican Legion, a Florida corporation, Appellees.
Decision Date11 March 1959
Docket NumberA,No. 677,No. 30

Page 417

110 So.2d 417
Kenneth NIELSEN, a minor, by his mother and next friend, Clara Nielsen, and Clara Nielsen, individually, Appellants,
v.
CITY OF SARASOTA, a municipal corporation of the State of Florida, and Sarasota Bay Post No. 30, American Legion, a Florida corporation, Appellees.
No. 677.
District Court of Appeal of Florida,
Second District.
March 11, 1959.
Rehearing Denied April 20, 1959.

Icard, Merrill & Cullis, Sarasota, for appellants.

Dexter, Conlee & Bissell, Sarasota, for appellee, City of Sarasota.

Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellee, Sarasota Bay Post No. 30, American Legion.

SMITH, FRANK A., Associate Judge.

This was a suit brought to recover for personal injuries to the minor plaintiff. The appeal is by the plaintiff from a summary judgment entered on behalf of the appellees.

The second amended complaint alleged injuries to the minor plaintiff when he fell from the grandstand at a ball park owned by the City of Sarasota. At the time of the accident a game was being sponsored by Sarasota Bay Post No. 30, American Legion. The complaint set up the claim that the defendants had a duty to safeguard the patrons; that the grandstand was defectively constructed or maintained; that there was no adequate supervision for small children; and that the minor plaintiff slipped or stumbled and fell a distance of about fifteen feet to the ground, sustaining serious injuries. The mother of the minor plaintiff also stated a claim since she had legal custody of him.

Motion to dismiss, to strike, and for more definite statement were filed on behalf

Page 418

of each of the appellees. These motions were denied with insignificant exceptions as to the motion to strike on behalf of the City of Sarasota.

On motion of the City of Sarasota summary judgment was entered in favor of the City as to the claim of the child's mother. This was apparently on the ground stated in the motion that written notice of the injury had not been given to the City within thirty days as required by statute. The thirty day period was up August 5th and actual notice was given August 31, 1956. The Court refused to apply this to the minor plaintiff because of the injuries he received, holding in effect that a reasonable time was allowed for notice after he regained consciousness and further holding that the minor plaintiff should not be prejudiced by the failure of his mother to give notice.

Answers were filed on behalf of both defendants, and in time the case came on for hearing on motions for summary judgment filed by both defendants, based on affidavits, interrogatories, and depositions. The Court entered summary judgment, holding that there was no genuine issue of material fact and that the defendants were entitled to judgment, that there was no showing either of negligence or that the injury was the proximate result of the alleged negligence. This appeal was instituted and cross-assignments of error were filed by the appellees.

On the day of the accident, Sarasota Bay Post No. 30, American Legion was sponsoring a baseball game at Payne Park, a municipal park of the City of Sarasota. There was no payment for lease or use of the City's facilities. The minor plaintiff, Kenneth Nielsen, then just under six years of age, attended the game with his sister, Karen Nielsen, then about fourteen, and another boy. There was no charge for attendance of children but adults were charged for admission. Kenneth was permitted to play underneath the grandstand for a time but at about the fourth inning his sister called to him to come up where she was. She was sitting at the second row of seats from the top. Kenneth proceeded up an aisle and was approaching his sister from her left, walking along the footboard for the next row of seats above and behind her. Kenneth fell through the open space between the footboard where he was walking and the next higher row of seats. He fell about fifteen feet to the ground, struck or brushed against a man standing below the grandstand, struck his head on the ground, and sustained serious injury requiring a brain operation.

The record shows that there were no witnesses to the fall, except Karen Nielsen, Kenneth's 14 year old sister, her girl...

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8 practice notes
  • Cassel v. Price, No. XX-15
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1981
    ...conclusion. See 23 Fla.Jur., Negligence, §§ 129, 133; Loftin v. McGregor, 152 Fla. 813, 14 So.2d 574 (1943); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2nd DCA 1959), cert. dism d., 117 So.2d 731 (Fla. 1960); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 Page 261 (Fla......
  • Goode v. Walt Disney World Co., No. 81-1431
    • United States
    • Court of Appeal of Florida (US)
    • December 22, 1982
    ...speculation that the negligence of the defendant was causally related to the death. Appellee relies on Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959), to support the summary judgment. In Nielsen, a six-year-old child was at a baseball game with his fourteen-year-old sister. W......
  • Nielsen v. City of Sarasota, No. 30
    • United States
    • United States State Supreme Court of Florida
    • February 3, 1960
    ...upon the factual summary related by the Court of Appeal in the opinion submitted for review. It appears as Nielsen v. City of Sarasota, 110 So.2d 417. A summary judgment against the mother individually is not submitted Page 733 for review. With reference to the claim of the minor, the trial......
  • Alls v. 7-Eleven Food Stores, Inc., No. 78-155
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 1979
    ...defendant. Fields v. Quillian, 74 So.2d 230 (Fla.1954); Andrews v. Goetz, 104 So.2d 653 (Fla. 1st DCA 1958); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959). It is, of course, a principle of appellate law that a trial court can be right for any reason which appears in the reco......
  • Request a trial to view additional results
8 cases
  • Cassel v. Price, No. XX-15
    • United States
    • Court of Appeal of Florida (US)
    • April 7, 1981
    ...conclusion. See 23 Fla.Jur., Negligence, §§ 129, 133; Loftin v. McGregor, 152 Fla. 813, 14 So.2d 574 (1943); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2nd DCA 1959), cert. dism d., 117 So.2d 731 (Fla. 1960); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 Page 261 (Fla......
  • Goode v. Walt Disney World Co., No. 81-1431
    • United States
    • Court of Appeal of Florida (US)
    • December 22, 1982
    ...speculation that the negligence of the defendant was causally related to the death. Appellee relies on Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959), to support the summary judgment. In Nielsen, a six-year-old child was at a baseball game with his fourteen-year-old sister. W......
  • Nielsen v. City of Sarasota, No. 30
    • United States
    • United States State Supreme Court of Florida
    • February 3, 1960
    ...upon the factual summary related by the Court of Appeal in the opinion submitted for review. It appears as Nielsen v. City of Sarasota, 110 So.2d 417. A summary judgment against the mother individually is not submitted Page 733 for review. With reference to the claim of the minor, the trial......
  • Alls v. 7-Eleven Food Stores, Inc., No. 78-155
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 1979
    ...defendant. Fields v. Quillian, 74 So.2d 230 (Fla.1954); Andrews v. Goetz, 104 So.2d 653 (Fla. 1st DCA 1958); Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959). It is, of course, a principle of appellate law that a trial court can be right for any reason which appears in the reco......
  • Request a trial to view additional results

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