FREDERICK KITCHENS AND MADELINE KITCHENS, HUSBAND AND WIFE, APPELLANTS,
v.
ASOLO STATE THEATRE, INC., AND STATE OF FLORIDA, DEPARTMENT OF STATE, APPELLEES
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Appellants sought damages for injuries sustained at the Asolo State Theatre from a fall over a camouflaged step. The trial court granted summary judgment based on sovereign immunity, but the appellate court reversed, holding that sovereign immunity does not shield a theater from liability for failing to warn of known dangerous conditions, and remanded to allow an amended complaint.
Sovereign immunity does not extend to a theater's failure to correct or warn of a known dangerous condition that the theater created and that is not readily apparent. Although initial staffing and equipment decisions may be immune planning-level functions, immunity does not protect against failure to warn of subsequently discovered hazards.
[1] Sovereign immunity does not extend to a failure to correct or warn of a known dangerous condition that was created by the entity and is not readily apparent.
[2] A plaintiff should be allowed an opportunity to amend a complaint to allege a cause of action for failure to warn of a known dangerous condition when the action was comme…
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Join FLexlaw to unlock all legal intelligence“While appellee may generally be immune from suit for initial staffing and equipment decisions, see Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), such protection does not extend to a failure to correct or warn of a known dangerous condition which appellee created and which is not readily apparent.”
Establishes the key distinction between immune planning-level decisions and non-immune operational failures to warn of known hazards
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Join FLexlaw to unlock all legal intelligenceAppellants were patrons injured in a fall over a darkened, camouflaged step at the Asolo State Theatre. Another patron had previously fallen over the …
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WENTWORTH, Judge.
Appellants seek review of a final summary judgment entered upon a determination that appellee is immune from suit upon the cause of action alleged. We conclude that appellants should be allowed an opportunity to file an amended complaint, and we therefore reverse the order appealed.
Appellants filed an action for damages resulting from injuries alleged to have occurred while they were patrons in the audience of a theater production at the Asolo State Theatre. It was further alleged that the injuries resulted from a fall over a “camouflaged” step which was not visible in the darkened theater. Appellants asserted that appellee was negligent in failing to provide ushers, handrails, lights, or other safety devices, and in utilizing chairs of a type which are a hazard in a theater. Interrogatories, affidavits, and depositions were filed, and it was thereby indicated that another theater patron had sustained a prior fall similar to that alleged in appellants’ complaint and had advised theater personnel of the incident. It was also indicated that a state safety official had inspected the theater, noted that the darkened step presents a potential safety hazard, and recommended that warning lights be installed.
Appellee moved for summary judgment, asserting that no negligence in the maintenance of the premises had been shown, and that appellee is otherwise “shielded by sovereign immunity.” The court agreed, and in granting summary judgment stated that “the decisions of whether to provide ushers, or handrails and the type of seating in the theater are planning-level functions which are immune from suit.”
While appellee may generally be immune from suit for initial staffing and equipment decisions, see Department of Transportation v. Neilson, 419 So. 2d 1071 (Fla.1982), such protection does not extend to a failure to correct or warn of a known dangerous condition which appellee created and which is not readily apparent. See City of St. Petersburg v. Collom, 419 So. 2d 1082 (Fla.1982); see also Payne v. Broward County, 461 So. 2d 63 (Fla.1984). In the present case there is evidence which might support a determination that appel-lee failed to warn of such a known dangerous condition. Although appellants’ complaint contains no specific allegation in this regard, the action was commenced prior to the Florida Supreme Court’s decisions in Neilson, supra, and Collom, supra; we conclude that in the circumstances presented, as in Perez v. Department of Transportation, 435 So. 2d 830 (Fla.1983), appellants should be allowed an opportunity to allege such cause of action in an amended complaint.
Accordingly, the order appealed is reversed and the cause remanded.
ERVIN, C.J., and BOOTH, J., concur.
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Avallone v. Bd. OF Cnty. Comm'rs OF Citrus Cnty., 493 So. 2d 1002 (Fla. 1986)…nding for Sarasota County, ruled that the presence or absence of lifeguards was a planning level decision for which sovereign immunity barred suit. A variety of other cases have reached similar conclusions. See Kitchens v. Asolo State Theatre, Inc., 465 So. 2d 556 (Fla. 1st DCA) (the state is generally immune from suit for initial staffing decisions at its theater), review denied, 472 So. 2d 1180 (Fla.1985); Higdon v. Metropolitan Dade County, 446 So. 2d 203 (Fla. 3d DCA 1984) (failure by police to prevent ri…
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Feldstein v. The City OF KEY W., 512 So. 2d 217 (Fla. 3d DCA 1987)…h v. City of Daytona Beach, 471 So. 2d 1, 3 (Fla.1983) (inadequately supervised beach vehicular traffic); Department of Transportation v. Brown, 497 So. 2d 678, 680 (Fla. 4th DCA 1986) (dangerous intersection); Kitchens v. Asolo State Theatre, Inc., 465 So. 2d 556, 557 (Fla. 1st DCA 1985) (unlit theatre step); Hodges v. City of Winter Park, 433 So. 2d 1257, 1260 (Fla. 5th DCA 1983) (protruding manhole cover). Moreover, the cases interpreting Collom, and its companion case, Neil-son, uniformly hold that the go…
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Sarasota Cnty. v. Butler, 476 So. 2d 216 (Fla. 2d DCA 1985)…ggest, let alone to establish, that Sarasota County failed to fulfill an operational-level duty. Finally, the appellee signals our attention to Greene v. State, 465 So. 2d 560 (Fla. 1st DCA 1985), and Kitchens v. Asolo State Theater, Inc., et al., 465 So. 2d 556 (Fla. 1st DCA 1985), in support of the judgment. Greene and Kitchens are inapplicable to the instant matter. In each of those cases, in contrast to the present matter, the cause of the injury was created by governmental action and the plaintiffs wer…
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
- Dep't OF Transp. v. Neilson, 419 So. 2d 1071 (Fla. 1982)
- City OF ST. Petersburg v. Collom, 419 So. 2d 1082 (Fla. 1982)
- Payne v. Broward Cnty., 461 So. 2d 63 (Fla. 1984)
- Perez v. Dep't OF Transp., 435 So. 2d 830 (Fla. 1983)