A father’s lawsuit against a local city government and the manufacturer of playground equipment on public property has been given the green light for trial by Florida’s Fourth District Court of Appeal.
The child injury at the center of the lawsuit, Bogatov v. City of Hollandale Beach, reportedly involved a 2-year-old boy was playing at a city park playground.
In the company of his nanny, the boy was reportedly climbing on a jungle gym when he fell onto a hard surface below, causing him to suffer a fractured left femur and numerous contusions on his leg. He was confined to a wheelchair for months.
With the initial complaint, plaintiff (child’s father) named only the city as a defendant. However in an amended complaint, the manufacturer of the playground equipment was named. Father alleged the maker of the jungle gym was liable because the product was defective at the time of sale in its design. Specifically, it did not have any handles that could be used for grasping. Plaintiff alleged this defect resulted in the child’s injuries.
Defendant moved for summary judgment arguing its equipment was not the cause of the child injuries. In support of this argument, defense pointed out:
- In the deposition of the child’s caregiver – the only witness to the actual fall – she stated the child had been running around the park when he fell, not on the jungle gym.
- An expert witness testifying on behalf of the defense argued that the main and contributing factor to the child’s injury was the fact that the city did not have enough wood chips on the surface of the playground in order to make it safe – and as required by industry standards.
Plaintiff responded with numerous reports, affidavits and documents opposing the motion for summary judgment.
Trial court granted defense motion and plaintiff appealed.
The 4th DCA reversed, finding plaintiff had presented sufficient evidence to establish a genuine issue of material fact that precluded summary judgment. Specifically, a review of records showed that the statement the nanny gave to police on scene was that the child had fallen on the jungle gym. This was different from what she stated in her deposition, but this conflict alone creates a material issue of fact.
In addition to this, there were two medical reports in which the doctors and health care providers indicated the child, “fell from a certain height.” There are discrepancies as to whether that height was 2 feet or 4 feet, but it is relevant that those reports do not indicate the child fell while running. Although these statements were made by family members and might otherwise be considered “hearsay,” there is an exception spelled out in Florida Evidence Rule 90.803(4), which opines such statements are admissible because when a person consults a doctor for treatment, he or she has a strong motivation to be truthful because of a desire for treatment to be effective.
Thus, the court reversed and remanded for trial.
The U.S. Centers for Disease Control and Prevention (CDC) report more than 200,000 children are treated at hospital emergency rooms for playground-related injuries every year.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Bogatov v. City of Hollandale Beach, May 25, 2016, Florida’s Fourth District Court of Appeal
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