JOHN ANDREWS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CASEY ANDREWS, DECEASED, AND JOHN ANDREWS AND LYNN ANDREWS, HIS PARENTS, INDIVIDUALLY, APPELLANTS,
v.
THE CITY OF MARGATE, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA, APPELLEE
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The parents and estate of Casey Andrews, a twelve-year-old killed by a cement truck while riding his bicycle near a school crossing, appealed summary judgment in their negligence action against the City of Margate. The court reversed, holding that genuine issues of material fact existed regarding whether the city's crossing guards breached their duty to ensure the child walked his bicycle across the intersection, and whether that breach proximately caused his death.
Summary judgment was improper because genuine issues of material fact existed regarding proximate causation. A jury could reasonably find that the city employee or the city that hired and trained her was negligent in failing to require the child to walk his bicycle at the busy intersection, and that a foreseeable risk of injury existed both at and immediately beyond the intersection.
[1] A municipality may be liable for negligence if its employees fail to protect children from vehicular traffic hazards at designated school crossings.
[2] The duty of a crossing guard includes being the "eyes and ears" for children and guiding them safely to and from their destinations.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The question of whether a defendant's negligence is the "proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question."”
Establishes the standard that proximate causation is typically a jury question, making summary judgment inappropriate when factual disputes exist.
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Join FLexlaw to unlock all legal intelligenceCasey Andrews, age twelve, was struck and killed by a cement truck approximately sixty feet beyond a Margate intersection staffed by three city-employ…
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ROBINSON, STEVEN D., Associate Judge.
John Andrews, as personal representative of the Estate of Casey Andrews, and John Andrews and Lynn Andrews, his parents, individually, appeal from an adverse summary final judgment in favor of the City of Margate (City). The plaintiffs had alleged that the City, among other defendants, had acted negligently, that its negligence was a proximate cause of the accident and, therefore, it was liable for Casey Andrews’ death.
While riding his bicycle to school, twelve-year-old Casey was struck and killed by a cement truck, about sixty feet beyond a Margate intersection staffed by three crossing guards employed by the City. As he approached the intersection, he dismounted and remounted, riding first across West Atlantic Boulevard and then, after dismounting and remounting again, across State Road 7, up a wheelchair/bicycle ramp, and past a light pole on the outer edge of the sidewalk. His friend, following behind, observed that, when Casey went around the light pole, he began to wobble, apparently causing him to enter the street as he crossed an intersecting sloped driveway.
None of the crossing guards, and particularly Catherine Youron, who was closest to the accident position, remembers seeing Casey or his friends passing across the intersection. It was normal for Mrs. Your-on to see children riding their bicycles across the intersection. She testified at her deposition that she was never instruct ed by her employer, the City, that doing so was unsafe.
At the hearing on summary judgment, the plaintiffs referred in the record to a number of policy and safety documents evidencing two relevant duties. First, in the City’s job description, crossing guards were to “guide children across streets at designated school crossings, to protect them from the hazards of vehicular traffic,” and “to be the eyes and ears for the children, to control and guide them to and from their destinations without incident.” Second, as described by plaintiffs’ expert, Dr. Fogarty, in his affidavit, normal guidelines regarding the safe crossing of bicyclists require them to dismount and walk their bicycles across an intersection within the confines of a crosswalk. Dr. Fogarty then went on and developed a causal link between Casey’s not dismounting and his instability at the accident position. He said, “such action allowed for the bicyclist, Casey Andrews, to arrive at the farside curbing at a speed and under such dangerous control conditions that the curb ramp in its proximity to a Florida Power & Light Company pole resulted in a ‘wobbling’ response ... with ultimate demonstration of control loss and movement into the street.”
The question of whether a defendant’s negligence is the “proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question.” Helman v. Seaboard Coast Line R. Co., 349 So. 2d 1187, 1189 (Fla.1977). Bradford v. Bernstein, 510 So. 2d 1204 (Fla. 2d DCA 1987), characterized the trial court’s rejection of the same type of expert opinion as a weighing of the evidence as to causation. Whether the cause of an injury is proximate depends on its foreseeability. Stahl v. Metropolitan Dade County, 438 So. 2d 14 (Fla. 3d DCA 1983). In Stahl, bicyclists’ characteristics were described to exemplify what one with a duty toward bicyclists would be expected to foresee. It pointed out that bicyclists have certain momentum problems as they travel along, that they cannot be expected to stop quickly and that, upon encountering hazards along their way, they must sometimes detour quickly if they cannot stop.
Thus, an employee of the City, or the City that hired and trained her, could reasonably be found negligent by a jury if the employee neglected her duty to require a school child such as Casey to walk his bicycle at the busy intersection. A jury could also find that a foreseeable risk existed both within and at hazards immediately beyond the intersection. It simply cannot be said that the instant record fails to reflect the existence of genuine issues of material fact regarding “proximate cause.” Thus, summary judgment was not proper. REVERSED AND REMANDED FOR TRIAL.
GLICKSTEIN and GUNTHER, JJ., concur.
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Brown v. City OF Delray Beach, 652 So. 2d 1150 (Fla. 4th DCA 1995)…sally related to the destruction of the evidence, are questions of fact to be determined by the trier of fact. Helman v. Seaboard Coast Line R.R., 349 So. 2d 1187, 1189 (Fla.1977); Continental Ins. Co., 576 So. 2d at 316; Andrews v. City of Margate, 546 So. 2d 106 (Fla. 4th DCA 1989). We reject the trial court’s characterization of Nugent’s affidavit statements as merely hearsay and conclusory. In the light most favorable to appellant, Nugent’s affidavit statement, that appellant’s experts could not connect…
Authorities Cited
- Helman v. Seaboard Coast Line R.R. Co. & William A. Cagle, 349 So. 2d 1187 (Fla. 1977)
- Stahl v. Metro. Dade Cnty., 438 So. 2d 14 (Fla. 3d DCA 1983)
- Bradford v. Bernstein, 510 So. 2d 1204 (Fla. 2d DCA 1987)