T. RAY JACKSON, AS FATHER AND NEXT FRIEND OF JOHN T. JACKSON, A MINOR, AND T. RAY JACKSON, INDIVIDUALLY, APPELLANT,
v.
WHITMIRE CONSTRUCTION COMPANY, INC., A FLORIDA CORPORATION, AND CITY OF TAMPA, A MUNICIPAL CORPORATION, APPELLEES
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A minor child was injured when a rock from a pile of construction material fell on his finger while he played on the pile located on a lot adjacent to his home. The court affirmed the trial court's directed verdict for the defendant contractors and municipality, finding no trespass issue was properly raised and the pile did not constitute an attractive nuisance under Florida law.
The directed verdict was properly granted. The trespass issue was not raised at trial and therefore cannot be considered on appeal. The pile did not constitute an attractive nuisance under Florida law because it did not contain a hidden and unusual element of danger presenting an unreasonable risk of death or serious bodily harm to children.
“It is a well established fundamental principle of law that a ground for relief not presented at the trial level will not be considered for the first time on appeal.”
Establishes that the trespass issue cannot be raised on appeal because it was never presented at trial.
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Join FLexlaw to unlock all legal intelligenceJohn T. Jackson, a minor, was injured when a rock of shell and tar fell on his finger while he was playing on a pile of sand, rock, and broken asphalt…
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T. Ray Jackson, appellant, sued Whit-mire Construction Company, Inc., and the City of Tampa, appellees, for injuries sustained by his minor son John while he was playing on a pile of sand, rock, and broken asphalt placed by Whitmire on a lot next to the Jackson home in the course of its work on the adjacent street, pursuant to a contract with the City. The injury occurred when John’s older sister dislodged a rock of shell and tar, causing it to fall on John’s finger.
The issues at the trial were negligence, attractive nuisance, contributory negligence, assumption of risk, and damages. At the close of appellant’s evidence the trial court granted appellees’ motion for a directed verdict. Appellant contends on appeal that the issues of trespass and attractive nuisance should have been submitted to the jury.
It is a well established fundamental principle of law that a ground for relief not presented at the trial level will not be considered for the first time on appeal. Sands v. Ivy Liquors, Inc., Fla.App.1966, 192 So.2d 775, 776; Michel v. Bayshore Marina, Inc., Fla.App. 1966, 183 So.2d 294, 296; Nelson v. Cravero Constructors, Inc., Fla.App.1960, 117 So.2d 764, 766; Slatcoff v. Dezen, Fla.1954, 76 So.2d 792, 793; Gautier v. Biscayne Shores Imp. Corp., Fla. 1953, 68 So.2d 386, 389-390. See generally 2 Fla.Jur., Appeals, Secs. 66, 290 (1963, Supp.1967). Since appellant did not plead or in any other manner raise the issue of trespass at the trial below, he cannot argue that the trial court erroneously refused to submit it to the jury.
Appellant’s contention that the trial court should have submitted the issue of attractive nuisance to the jury is also without merit. A structure or condition constitutes an attractive nuisance if (1) the place where the condition is maintained is one upon which the possessor knows or should know that children are likely to *863trespass; (2) the condition is one of which the possessor is or should he aware and one which he realizes or should realize involves an unreasonable risk of death or serious bodily harm to such children; (3) the children, because of their youth, do not discover the condition or do not realize the risk involved in intermeddling with it; (4) the utility to the possessor of maintaining the condition is slight as compared with the risk to children attracted thereto. Ridgewood Groves, Inc. v. Dowell, Fla.App. 1966, 189 So.2d 188, 190; Idzi v. Hobbs, Fla.App.1965, 176 So.2d 606, 607-608; Tampa Elec. Co. v. Lariscy, Fla.App.1964, 166 So.2d 227, 228-229; Banks v. Mason, Fla.App.1961, 132 So.2d 219, 220; Cockerham v. R. E. Vaughan, Inc., Fla. 1955, 82 So.2d 890, 892; Carter v. Livesay Window Co., Fla.1954, 73 So.2d 411, 413. A condition cannot be deemed to involve an unreasonable risk of death or serious bodily harm to children unless it inherently presents a hidden and unusual element of danger in such a way as to constitute a trap for them. McDaniel v. Mendez, Fla.App. 1967, 198 So.2d 75, 76; Johnson v. Williams, Fla.App.1966, 192 So.2d 339, 340; Ridgewood Groves, Inc. v. Dowell, supra at 189 So.2d 190; Switzer v. Dye, Fla.App. 1965, 177 So.2d 539, 541; Tampa Elec. Co. v. Lariscy, supra at 166 So.2d 229; Edwards v. Maule Industries, Inc., Fla.App. 1962, 147 So.2d 5, 7; Banks v. Mason, supra at 132 So.2d 221; Miller v. Guernsey Constr. Co., Fla.App. 1959, 112 So.2d 55, 57; Adler v. Copeland, Fla.App.1958, 105 So.2d 594, 595; Newby v. West Palm Beach Water Co., Fla.1950, 47 So.2d 527, 528; Allen v. William P. McDonald Corp., Fla.1949, 42 So.2d 706. The pile on which John was playing when he was injured did not contain any such element of danger. Thus, since the second of the above four elements was lacking, the pile did not constitute an attractive nuisance.
Finding no error, we affirm the judgment of the court below.
Affirmed.
WILLIS, ROBERT E., Associate Judge, concurs.
HOBSON, J., dissents in part with opinion.
(dissenting in part).
I dissent from the court’s conclusion regarding the question of attractive nuisance. The pictures contained in the record-on-appeal are clearly sufficient to present a factual question for the jury as to the element of whether or not the pile of sand, rocks and broken asphalt constituted a “hidden and unusual element of danger in such a way as to constitute a trap.” Ridgewood Groves, Inc. v. Dowell, Fla.App.1966, 189 So.2d 188.
HOBSON, Judge
(dissenting in part).
I dissent from the court’s conclusion regarding the question of attractive nuisance. The pictures contained in the record-on-appeal are clearly sufficient to present a factual question for the jury as to the element of whether or not the pile of sand, rocks and broken asphalt constituted a “hidden and unusual element of danger in such a way as to constitute a trap.” Ridgewood Groves, Inc. v. Dowell, Fla.App.1966, 189 So. 2d 188.
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Cited By (16 total)
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Whitted v. State, 362 So. 2d 668 (Fla. 1978)…rving it for review, we decline to entertain this issue on appeal. Florida Power Corp. v. Pinellas Utility Board, 40 So. 2d 350 (Fla. 1949); Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Jackson v. Whitmire Construction Co., 202 So. 2d 861 (Fla.2d DCA 1967); Michel v. Bayshore Marina, Inc., 183 So. 2d 294 (Fla.3d DCA 1966). Appellant’s second contention, that the term “lewdness” is constitutionally defective for vagueness, was rejected in our decision in Bell v. State, 289 So. 2d 388…
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Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981)…e floor, the court held that the couch was not “inherently dangerous nor a trap,” nor was it maintained in such a manner as to create a dangerous condition, and did not constitute an attractive nuisance. In Jackson v. Whit-mire Construction Company, 202 So. 2d 861 (Fla. 2nd DCA 1967), it was held that a pile of sand, rock, and broken asphalt, upon which a child was injured when a piece of shell and tar became dislodged, and fell on him, did not constitute an attractive nuisance. A condition cannot be deemed t…
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United Servs. Auto. Ass'n v. Porras, 214 So. 2d 749 (Fla. 3d DCA 1968)…s point not to be well taken, because same was not originally raised in the trial court. Oliva v. Baum, Fla.App.1967, 194 So. 2d 319; Radiation, Inc. v. Campbell, Fla.App. 1967, 200 So. 2d 192; Jackson v. Whitmire Construction Company, Fla.App.1967, 202 So. 2d 861. Therefore, for the reasons above stated, the summary final judgment here under review be and the same is hereby affirmed. Affirmed.…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Alligood v. Blanche Rogers, 73 So. 2d 411 (Fla. 1954)
- Allen v. William P. McDonald Corp., 42 So. 2d 706 (Fla. 1949)
- Cockerham v. R. E. Vaughan, Inc., 82 So. 2d 890 (Fla. 1955)
- Newby v. W. Palm Beach Water Co., 47 So.2d 527 (Fla. 1950)
- Adler v. Mr. and Mrs. H. S. Copeland, Jr., 105 So. 2d 594 (Fla. 3d DCA 1958)
- Nelson v. Cravero Constructors, Inc., 117 So. 2d 764 (Fla. 3d DCA 1960)
- Ted M. Banks v. Mason, 132 So. 2d 219 (Fla. 2d DCA 1961)
- Switzer v. DYE, 177 So. 2d 539 (Fla. 1st DCA 1965)
- Slatcoff v. Dezen, 76 So. 2d 792 (Fla. 1954)
- Edwards v. Maule Indus., Inc., 147 So. 2d 5 (Fla. 3d DCA 1962)