Florida’s 4th District Court of Appeals has reversed and remanded a trial court’s summary judgment in favor of a defendant in a playground injury lawsuit against a local city and the manufacturer of the playground equipment.
The victim at the center of Bogatov v. City of Hallandale Beach and Kidz Zone Playsystems, Inc., reportedly had to spend months in a wheelchair after suffering a fractured leg when he fell several feet from a jungle gym.
Initially, the trial court granted summary judgment to defense because it found there was not enough evidence to take to a jury to prove the child’s injuries were caused by allegedly defective playground equipment.
Trial court relied on testimony from a defense expert witness indicating the child’s injuries, if they were caused in the fall at all, were due to the fact the city had failed to maintain a proper layering of wood chips underneath the equipment, as is the industry standard. But even bigger than that, the defense pointed to testimony from the child’s nanny – the only one who actually saw him fall – who said he’d fallen while running on the playground, not while playing on the jungle gym. The court also refused to admit evidence from the plaintiff that showed medical doctors indicated the child’s family had told emergency room health care workers that the child had fallen from a height – not while he’d been running. Such statements, the court ruled, were “hearsay.”
The 4th DCA reversed and remanded.
For one thing, the court noted, the child’s nanny had given conflicting testimony. To police on the scene at the time of the accident, she said he’d fallen off the equipment. It wasn’t until more than two years later during a deposition that she said he’d fallen while running. This conflict, the appeals court ruled, created a genuine dispute of an issue of material fact that should be decided by a jury – not a judge in summary judgment form. The testimony of the expert witness could be taken into consideration, but it wasn’t the defining factor. And with regard to the medical records that indicated the “family stated” the child had fallen from a height, these were admissible under F.S. 90.803, which provides exceptions to hearsay evidence. One of those exceptions pertains to statements made to medical personnel in the course of seeking/ receiving a diagnosis or treatment. Such evidence is admissible because it is believed when a person consults a doctor for the purpose of receiving treatment, he or she is strongly motivated to tell the truth because they want the treatment to be effective.
For all these reasons, the court ruled the case should go to trial.
Although most playground injuries occur at a school or day care setting, this summer parents must be mindful of potential hazards with playground facilities at public parks and private residences. Safe Kids Worldwide reports more than 200,000 children under the age of 14 are treated in hospital emergency rooms for playground equipment-related injuries. Children between the ages of 5 and 14 accounted for 75 percent of those injuries.
Playground injuries are the No. 1 cause of injury to children in childcare and to those between the ages of 5 and 14. One-third of playground equipment deaths and 75 percent of playground equipment injuries occur on public playgrounds.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Bogatov v. City of Hallandale Beach and Kidz Zone Playsystems, Inc., May 25, 2016, Florida’s Fourth District Court of Appeal
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Child Injury Fears Spur Kickoff Ban in Pop Warner Games, May 18, 2016, Palm Beach Playground Injury Lawyer Blog