RODNEY MCGAHEE ET AL., APPELLANTS,
v.
THE DADE COUNTY BOARD OF PUBLIC INSTRUCTION, APPELLEE

Fla. 3d DCA | 1973-06-05
No. 72-1292
Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
279 So. 2d 87 Florida District Court of Appeal, Third District (1973) Caution
Cited by 8 cases

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Synopsis

A third-grader lost his sight in one eye when scissors he was using at his teacher's request struck him while removing a thumbtack from a bulletin board. The court reversed summary judgment for the school board, holding that negligence questions must go to a jury and that sovereign immunity does not bar the claim under Florida law.


Holding

The court held that summary judgment was improper because genuine issues of fact existed regarding negligence that must be resolved by a jury, and that sovereign immunity does not apply because the cause of action arose during a period of waiver under Florida law and the school board had liability insurance.


Headnotes

[1] Summary judgment for a defendant is improper when genuine issues of material fact exist.

[2] In reviewing a summary judgment for a defendant, facts are viewed in the light most favorable to the plaintiff.

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Key Quotes

“It is well established in Florida that for the purpose of determining the propriety of an entry of summary judgment for the defendant, on appeal the facts will be viewed in a light most favorable to the plaintiff.”

Establishes the standard of review for summary judgment appeals in Florida

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Facts & Procedural History

On June 10, 1970, teacher Eleanor Thue asked her third-grade class for volunteers to help clean the classroom the next day. Rodney McGahee came to ass…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Plaintiff-appellants take this appeal from a summary final judgment entered in favor of defendant-appellee.

On June 9, 1970, the last day of classes, Eleanor Thue, a school teacher, had asked her third grade class for volunteers to come the following day and help clean up the classroom. Minor plaintiff, Rodney McGahee and his friend, Ernest Hooker, came back the next day to assist Ms. Thue with the clean up. As requested by his teacher, Rodney began to remove some thumbtacks from the bulletin board. One of the thumbtacks was stuck and in order to dislodge it, Rodney put to use a pair of *88six inch long scissors. As he pulled out the tack, the scissors came back and hit him in the right eye in which subsequently he lost his sight as a result of this accident. Rodney’s father, plaintiff Willis McGahee went to the school and reported the incident to Ms. Thue and the principal. The school board admitted that official notice of the accident had been received within 30 days after its occurrence. On July 21, 1972 a second amended complaint was filed by the plaintiffs for damages against the defendants, The Dade County Board of Public Instruction, Ms. Eleanor Thue and Continental Insurance Company,1 the liability insurer of The Dade County Board of Public Instruction. Thereafter, by stipulation the complaint was dismissed as to Ms. Thue. The Dade County Board of Public Instruction moved for summary judgment which was granted after a hearing thereon.

On appeal, plaintiff-appellants argue that the court erred in entering a final summary judgment in that there were genuine issues of fact to be resolved and the board was not entitled to judgment as a matter of law. We find merit in this contention.

It is well established in Florida that for the purpose of determining the propriety of an entry of summary judgment for the defendant, on appeal the facts will be viewed in a light most favorable to the plaintiff. 2 Fla.Jur. Appeal § 307 (1963) and cases cited therein.

In the case sub judice there are two basic issues involved, to-wit: (1) negligence, and (2) sovereign immunity.

Turning to the negligence issue, one of the questions raised is whether under the facts in the case sub judice the scissors of themselves would constitute a dangerous instrument and if so, it would follow then if the teacher authorized their use or under the circumstance had reason to know they would be likely to cause injury, she would have had the responsibility of close supervision over the student. See 23 Fla.Jur. Negligence § 42 (1959). Once having raised the issue of negligence, the corresponding issues of contributory negligence, assumption of the risk, etc. would then also come in question.

Next, we considered the issue with respect to sovereign immunity which appel-lee contends precludes any liability on its part. We find F.S. §§ 768.15 and 768.151, F.S.A. to be controlling. The cause of action arose on June 10, 1970 during a period when there was a waiver of sovereign immunity under the above cited statutes. We note further that F.S. § 455.06, F.S.A. provides that where a government entity has liability insurance as in the case at bar, there is no immunity to the extent of the limits of the policy. Thus, appellee’s argument must fail.

Therefore, we hold that the question of negligence should go to the jury. Accordingly, the judgment of the lower court is reversed and remanded for further proceedings not inconsistent herewith.

Reversed and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Jackelyn Barrera v. Dade Cnty. Sch. Bd., 366 So. 2d 531 (Fla. 3d DCA 1979)
    …the defendant did not, as required, conclusively demonstrate that, under all the circumstances, it had provided adequate supervision of the plaintiff and her classmates at the time of the accident. McGahee v. Dade County Board of Public Instruction, 279 So. 2d 87 (Fla. 3d DCA 1973); Booker v. Okaloosa Board of Public Instruction, 323 So. 2d 619 (Fla. 1st DCA 1975); Cirillo v. City of Milwaukee, 34 Wis.2d 705, 150 N.W. 2d 460 (1967); Armlin v. Board of Education of Middleburgh Central School District, 36 A.D.…
  • Lauck v. Publix Mkt., Inc., 335 So. 2d 589 (Fla. 3d DCA 1976)
    …anting a summary judgment, which is in essence a directed verdict, the facts must be viewed in the light most favorable to the party against whom the judgment was granted. See, e. g., McGahee v. Dade County Board of Public Instruction, Fla.App.1973, 279 So. 2d 87; and Mimaroe, Inc. v. Sanitary Service Co., Fla.App.1966, 185 So. 2d 177. In light of these two rules, we believe that, in the instant appeal, the basic question for us to decide is whether or not, based on the record at the time of the pre-trial c…
  • Alvin Fisher, M.D. v. Heilbronner, 425 So. 2d 667 (Fla. 3d DCA 1983)
    …ll-established principles that in determining the propriety of the entry of a summary judgment, we must view the facts in a light most favorable to the party against whom judgment has been entered, McGahee v. Dade County Board of Public Instruction, 279 So. 2d 87 (Fla. 3d DCA 1973), and indulge all proper inferences in favor of such party, Thermo Air Contractors, Inc. v. Travelers Indemnity Co., [*668] 277 So. 2d 47 (Fla. 3d DCA 1973), we are compelled to conclude that the appellees have failed to show concl…

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