A boy who sustained serious and lasting damage to his knee as a result of deep lacerations caused by shards of broken glass at a public park is entitled to the $425,000 damage award granted by a trial jury, an appellate court ruled recently.
The fact the child was not supervised by his mother at the park at the time of the injury did not diminish the responsibility of government workers to clean up the mess, which witnesses testified had been present for upwards of six weeks.
The defendant city in Myers v. City of West Plains argued trial court’s decision to specifically instruct jurors not to consider the fact that the boy’s mother wasn’t present was improper, something the Missouri Court of Appeals for the Southern District rejected. The appellate court backed the trial court’s decision to give the instruction, reasoning the lack of supervision was not a significant contributing factor in the boy’s injury, but such information might have unfairly prejudiced plaintiffs had the instruction not been given.
Palm Beach injury lawyers know that in some cases involving injury to children, lack of parental supervision can play a role in raising the level of plaintiff’s comparative fault. This can result in a reduction of damages awarded, but typically, it is not a complete bar to compensation – particularly in Florida, where statutes allow plaintiffs to recover damages even if they hold 99 percent of the fault.
In the Myers case, the verdict was based on premises liability laws. While laws can vary from state-to-state, it’s generally held that property owners – particularly those welcoming the public – owe a duty to those guests to take measures to ensure the site is reasonably safe from dangers that are known, knowable or foreseen.
According to court records, the 11-year-old child was at the park with his older sister. Testimony at trial indicated many children came to the park to play, often without direct supervision. It was around 5:30 p.m. on this particular day when the fourth-grader was walking across the park to his sister, carrying a puppy that had slipped off its leash. As he did so, he tripped over the exposed root of a large tree. He landed on his knee in an effort to protect the puppy. Where he landed, there were large chunks of broken glass, causing the boy to suffer deep lacerations to his knee. The boy now wears a leg brace and faces a minimum of three surgeries, as well as lifelong pain and functional limitations. He has trouble sitting, squatting standing, running and walking.
At trial, no fewer than six independent witnesses testified the glass shards had been present for several weeks.
City officials denied this could be possible, as the grounds were reportedly supposed to be monitored and inspected monthly and weekly – sometimes daily. They said if the hazard had been present for that long, it should have been noticed and addressed by city staffers unless, as one employee pointed out, “Someone wasn’t doing their job.”
The issue of the mother’s absence at the park at the time of the injury arose first in voir dire, where jurors answered a series of questions regarding their views. Several indicated they would struggle with impartiality in making a judgment against a third party for a minor child’s injury when a parent had not been supervising. It was based on this the trial court found the matter to be a “stray issue” that required special instruction to insurer it wasn’t unfairly weighted by the jury.
Appellate court found this determination was proper.
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Myers v. City of West Plains , Jan. 27, 2015, Missouri Court of Appeal, Southern District, Division Two
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