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Florida First DCA reverses summary judgment for defendant school in premises liability case involving seven-year old student injured while running in indoor gym

On January 11, 2021, in Collias v. Gateway Academy of Walton County, Inc., No. 1D19-262, the Florida First DCA reversed a summary judgment order that had been entered for the defendant in a premises liability case.  The injury occurred when the plaintiff, a second-grade student at the defendant’s school, was running on a makeshift running course in the school’s indoor gym, became distracted, and ran into a pedestal table with a glass edge. The trial court entered a summary judgment for the defendant on the basis that the table was an “open and obvious” risk of which the plaintiff was aware.  The First DCA noted that courts hesitate to absolve a property owner of liability on an “open and obvious” theory unless the crystalized and undisputed facts establish, as a matter of law, that a plaintiff knowingly undertook an open and obvious risk for which no warning is necessary.  The First DCA concluded that in this case factual issues exist as to whether the pedestal table was so “open, obvious and ordinary” as to make it—as a matter of law—the type of risk that a seven-year old child engaging in an indoor running exercise would foreseeably perceive and avoid.  The First DCA distinguished it previous decision in Brookie v. Winn-Dixie Stores, Inc., 213 So. 3d 1129, 1131 (Fla. 1st DCA 2017), in which it affirmed a summary judgment for the defendant grocery store in a case in which a customer tripped over a pallet, observing that it has long been recognized in Florida that businesses owe invited children a relatively higher degree of care for their safety than is owed to adults.  The Court added that the degree of care is “commensurate with the attending facts and circumstances of each case, quoting from Burdine’s, Inc. v. McConnell, 1 So. 2d 462, 463 (Fla. 1941), and additionally citing City of Miami v. Ameller, 472 So. 2d 728, 729 (Fla. 1985) (approving the Third District decision adopting Judge Ervin’s opinion in Alegre v. Shurkey, 396 So. 2d 247, 249 (Fla. 1st DCA 1981) (Ervin, J., concurring in part, dissenting in part) (“It has long been acknowledged that a child of tender years may be incapable of comprehending a patent risk and that a greater degree of care may be owed to the invitee-child by the business owner than to an adult of normal intelligence.”)). The First DCA concluded that that two fundamental issues of negligence exist in this case that could not be resolved at the summary judgment stage: whether the auditorium should have been used for indoor running and whether the table should have been there at all.