SHIRLEY PASSARO, INDIVIDUALLY, AND AS MOTHER AND NEXT FRIEND OF ERIK PASSARO, A MINOR, APPELLANT,
v.
THE CITY OF SUNRISE, FLORIDA, APPELLEE
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A mother and her three-year-old son were injured when the child fell through bleachers at a city-owned athletic facility due to a missing wooden seat. The trial court granted summary judgment for the City of Sunrise, but the appellate court reversed, holding that genuine issues of material fact existed regarding the negligence of both the City and the mother, as well as comparative negligence, making the case unsuitable for summary disposition.
The court held that genuine issues of material fact existed that were unsuitable for summary judgment disposition. Issues remained regarding the City's negligence in maintaining the defective bleachers, the mother's negligence in supervision despite her proximity to the child, and the comparative negligence of both parties under Florida's comparative negligence statute.
[1] A genuine issue of material fact exists regarding a municipality's negligence in maintaining defective public facilities, even if a plaintiff had prior knowledge of the d…
[2] A plaintiff's knowledge of a defect in public property does not automatically preclude a claim for negligence against the property owner.
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Join FLexlaw to unlock all legal intelligence“In our opinion the case was not suitable for summary judgment disposition because there were existent genuine issues of material fact.”
Establishes the core holding that summary judgment was improper due to unresolved factual issues
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Join FLexlaw to unlock all legal intelligenceIn February 1980, Shirley Passaro took her three-year-old son Erik to an athletic event at Dawson Field, owned and maintained by the City of Sunrise. …
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WALDEN, Judge.
This was an action for personal injuries. Summary final judgment was entered in favor of Defendant, City of Sunrise. Plaintiff appeals. We reverse and remand.
The undisputed facts reveal that in February, 1980, the Plaintiff, Shirley Passaro, took her son, Erik, age 3, to an athletic event at Dawson Field which was owned and maintained by Defendant, City of Sunrise. At that time, one of the wooden seats from the bleachers had been removed, leaving a metal support in place. At that time, while within an arm’s length of the Plaintiff, Shirley Passaro, her son, Erik, stepping where the missing board should have been, fell through the bleachers, striking his head on one of the metal supports.
The Plaintiff had noticed on one prior occasion that the bleacher seat was missing several days before the accident, but the accident happened within seconds of the time she arrived with her son, Erik on this second occasion. Shirley Passaro testified that she was within an arm’s reach of her son the entire time, and in fact, when he fell, hitting his head on the brace, she grabbed him before he ever struck the ground.
Based on the foregoing, Plaintiff, Shirley Passaro, individually, and as mother and next friend of Erik Passaro, a minor, brought suit for damages against the Defendant, City of Sunrise, Florida. The City filed its answer and counter claim wherein it generally denied responsibility, plead that Plaintiff, Shirley Passaro, was guilty of negligence in the care and supervision of her son Erik, which negligence bars or comparatively limits the Plaintiff’s right to recover. In its counter claim the city asked for contribution per Section 768.31, Florida Statutes (1981).
After discovery which revealed the foregoing facts the trial court granted the City’s motion for summary judgment and entered summary final judgment in favor of the Defendant, City of Sunrise, and against the Plaintiff.
In our opinion the case was not suitable for summary judgment disposition because there were existent genuine issues of material fact. Florida Rules of Civil Procedure 1.510(c). There was an issue as to the negligence of the Defendant, City of Sunrise, in maintaining defective bleachers which were open for public use and this is true even though Plaintiff had knowledge of the defect consisting of the missing seat. Pittman v. Volusia County, 380 So. 2d 1192 (Fla. 5th DCA 1980). There was an issue as to the negligence of Plaintiff, Shirley Passaro, in the supervision of her minor son even though she testified that he was within an arm’s length from her at all times. See Orlando Sports Stadium v. Gerzel, 397 So. 2d 370, 371 (Fla. 5th DCA 1981). Even more importantly, there is an issue as to the comparative negligence of the respective parties and the contribution to be made under § 768.31 Florida Statutes (1981). Hoffman v. Jones, 280 So. 2d 431 (Fla.1973) and Goldberg v. McCabe, 313 So. 2d 47 (Fla. 3d DCA 1975).
In our view the foregoing issues are properly issues for the jury.
Reversed and remanded for further proceedings.
HURLEY and DELL, JJ., concur.
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Marion v. City OF Boca Raton, 47 So. 3d 334 (Fla. 4th DCA 2010)…n the steps did not preclude a jury from considering the county’s negligence along with that of the plaintiff under comparative negligence principles, the Pittman court reversed a judgment in favor of the county. See also Passaro v. City of Sunrise, 415 So. 2d 162 (Fla. 4th DCA1982). These same principles apply to the liability of the City for the malfunctioning traffic light. The City had a duty to maintain its traffic control devices. The record does not conclusively refute the allegations that the City wa…
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Mazzeo v. City OF Sebastian, 526 So. 2d 1003 (Fla. 4th DCA 1988)…g. I would, therefore, reverse. See generally Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla.1986); Auburn Machine Works Co. v. Jones, 366 So. 2d 1167 (Fla.1979); Blackburn v. Dorta, 348 So. 2d 287 (Fla.1977); Passaro v. City of Sunrise, 415 So. 2d 162 (Fla. 4th DCA 1982).…
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Kolosky v. Winn Dixie Stores, Inc., 472 So. 2d 891 (Fla. 4th DCA 1985)…s knowledge presents an issue of comparative negligence. Zambito v. Southland Recreation Enterprises, Inc., 383 So. 2d 989 (Fla. 2d DCA 1980). See also Hylazewski v. Wet ’N Wild, Inc., 432 So. 2d 1371 (Fla. 5th DCA 1983); Passaro v. City of Sunrise, 415 So. 2d 162 (Fla. 4th DCA 1982). We note that the jury found Mrs. Kolosky to be fifty percent negligent, quite possibly because of her knowledge regarding the children’s reckless conduct. As noted above, the trial court found defendant’s negligence to be only…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Pittman v. Volusia Cnty., 380 So. 2d 1192 (Fla. 5th DCA 1980)
- Orlando Sports Stadium, Inc. v. Gerzel, 397 So. 2d 370 (Fla. 5th DCA 1981)
- Broadacre Trailer Lodge, Inc. v. FIX, 313 So. 2d 47 (Fla. 2d DCA 1975)
- Burton Goldberg v. McCABE, 313 So. 2d 47 (Fla. 3d DCA 1975)