Florida’s Fourth District Reverses in Hallandale Child Injury Suit

Although we expect all products to be “safe,” there are certain products for which our expectation of safety is  heightened. Indeed, given the vulnerability of children, products intended for use by juveniles are expected to be designed in a manner that accounts for both youthful impetuousness and relative physical fragility. Nevertheless, not all products meet reasonable expectations. For instance, in a recent decision, Bogatov v. City of Hallandale Beach, the Fourth District Court of Appeal was tasked with determining whether liability could be imposed on the manufacturer of an allegedly defective jungle gym.

Bogatov started with a fall at the playground of a Hallandale Beach park. The plaintiff in this case is the father of a two-year-old who was at the playground with his nanny when he fell. The child sustained serious injuries as a result of the fall, and local law enforcement investigated the incident. During the investigation, the nanny, who was the only eyewitness to the fall, told law enforcement that the child was on the jungle gym at the time of the fall. Following this string of events, the father filed suit against the city of Hallandale Beach, alleging that the city’s negligence in maintaining the playground resulted in the child’s injury. The complaint was later amended to add the jungle gym’s manufacturer, which the plaintiff alleged was negligent in the design and construction of the jungle gym, in particular by failing to place grasping handles on the jungle gym.

Following discovery, the jungle gym manufacturer moved for summary judgment on the claims made against it. In its argument in support of the motion for summary judgment, the manufacturer relied on deposition testimony from the child’s nanny that conflicted with the account of the accident she gave law enforcement. Specifically, the nanny stated at the deposition that although the child had been playing on the jungle gym earlier, the child was not on the jungle gym at the time of the fall. In addition to noting this discrepancy in the testimony, the manufacturer proffered expert testimony that it argued confirmed that the main contributing factor of the child’s injury was the city’s failure to have an adequate amount of wood chips in the play area. On the basis of this evidence, the trial court granted the manufacturer’s motion for summary judgment.

However, the Fourth District ruled that the grant of summary judgment was in error and reversed the trial court’s dismissal. First, with respect to the nanny’s deposition testimony, the Court of Appeals noted that simply because the deposition testimony contradicted the nanny’s earlier statements to law enforcement did not mean the deposition testimony was the correct version of events. Indeed, “evidence of inconsistency in testimony and documentary evidence itself creates a disputed issue of fact for [a] jury.”  Gardner v. Holifield, 639 So. 2d 652, 657 (Fla. 1st DCA 1994). Accordingly, it was improper for the trial court to resolve the inconsistency in the manufacturer’s favor at summary judgment. Furthermore, the Fourth District noted that this dispute of material fact was bolstered by admissible hearsay statements made in two medical reports regarding the height from which the child fell. Second, having concluded that there was a genuine issue of material fact regarding whether a fall from the jungle gym caused the child’s injury, the Fourth District reasoned that the argument regarding the city’s failure to provide sufficient wood chips below the jungle gym needn’t be resolved. Accordingly, the Court of Appeals reversed the grant of summary judgment and remanded the case to the lower court for trial or settlement.

Although the father of this injured child will still need to prove at trial that the manufacturer negligently designed or constructed the jungle gym, the Fourth District ruling at least assures that he will have his day in court. Indeed, many claims, including possibly meritorious ones, are lost during the protracted motion practice process that occurs prior to any trial, and it behooves anyone with a possibly viable claim to seek the assistance of an experienced trial court practitioner . The South Florida child injury attorneys at Frankl Kominsky Injury Lawyers have represented many injured Florida residents in both state and federal courts, and they are prepared to provide you with the benefit of their trial court acumen. Indeed, if you or a loved one has recently been injured and are curious about your options for legal recovery, feel free to contact us for a free case consultation.

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