Kеnneth F. CASSEL and Shirley Ann Cassel, Personal Representatives of Kenneth Reagan Cassel, Deceased, Appellants,
v.
J. Frank PRICE, Fred D. Higginbotham, and Fred Crews, Their Successors and Assigns, As Trustee for First United Pentecostal Church, Also Known As Jacksonville Christian Academy and Preferred Risk Mutual Insurance Company, Appellees.
District Court of Appeal of Florida, First District.
*259 David R. Lewis, of Lewis, Paul, Isaac & Castillo, and Mary L. Nelson, of Penland, McCranie & Shad, Jacksonville, for appellants.
William R. Swain and William T. Stone, of Webb, Swain & Watson, Jacksonville, for appellees.
LARRY G. SMITH, Judge.
Appellants appeal a final summary judgment finding no liability in their suit seeking damages for the death of their eleven year old son, who died as a result of a fall from a mulberry tree on the grounds of appellees' private church school, at which the child was a student. Appellants contend that the trial court erred in rejecting their claim of liability based upon the attractive nuisance doctrine, as well as upon ordinary negligence principles arising from the relationship between the school and the deceased child as a "business invitee"; and they further contend that although their second amended complaint was couched in terms broad enough to sustain their claim based upon the "business invitee" theory, the trial court further committed error in denying their motion to file an amended complaint, containing a second count based upon the school-student relationship. Our conclusion, from examination of the pleadings and record, and consideration of the briefs of the parties, is that there is no view of the facts affording a reasonable conclusion of negligence on the part of the defendant, and the summary judgment finding no liability must therefore be affirmed.
The facts of the case, as stated by appellants, are fairly simple and mostly undisputed. The decedent was an eleven year old student enrolled at the private school. He was in a car pool with two other students and was to be picked up at thе end of the school day by the mother of the other two children. On the fatal day, at the close of the school day, that mother arrived to pick up the three boys, when it was learned that one of the other children was being kept after school for a short period by his teacher, apparently for disciplinary reasons. The driving mother decided to run a shopping errand, and at the request of the decedent and the other child, left them at the school grounds to play. After her departure, the two boys crossed the road or drive-way separating the school building from other school grounds, and the decedent climbed a large mulberry tree on the school property, near the area used by the school for parking and school recreation. While in the tree, the deceased child was picking mulberry blooms and throwing them to his companion on the ground, when he apparently lost his balance and fell to the ground. Upon falling, according to allegations of the complaint and a supporting affidavit filed in opposition to the motion for summary judgment, the deceased child struck his head on a broken piece of concrete block which, along with other old and broken pieces of brick and block left over from the school's *260 building program, had been used by the school to fill in depressions around the tree. This filled area was covered over with a thin covering of dirt which originally hid all of the broken brick and block, but may have, by the passage of time, become thinned out further.[1] The injuries received by the child when it struck the debris proved to be fatal.
The first complaint consisted of two counts: The first count was founded upon attractive nuisance, and lack of supervision by the school; and the second сount was founded upon the alleged failure of the defendant to maintain the premises in a safe condition, and failure to warn the deceased minor of the dangerous, unsafe conditions created by the condition of the ground underneath the tree. Upon motion, this complaint was dismissed and an amended complaint was filed. This complaint contained one count alleging negligence based upon the duty of the school to provide a safe place to play; a second count founded upon negligent supervision; and a third count alleging the existence of an insurance contract of which the deceased child was a beneficiary. A motion to dismiss this complaint was also granted. Finally, a second amended complaint was filed. This complaint contained only one count, based upon the "attractive nuisance" theory, alleging in substance that the mulberry tree was an attractive nuisance, and that the partially covered pieces of brick or concrete lying beneath the tree constituted a latent danger or hidden trap, as a consequence of which the child received his fatal injuries.
The motiоn to dismiss this second amended complaint was denied, and trial was scheduled for the week of May 12, 1980. On March 28, 1980 defendants filed a motion for summary judgment in which it was contended, among other things, that although the debris beneath the tree had been covered with sand, it was nevertheless open and visible; that there was no trap or hidden danger upon the premises, and thus no basis for recovery on the attractive nuisance doctrine; and that the defendants were entitled to summary judgment as a matter of law. On April 15, 1980, prior to ruling on defendants' motion for summary judgment, appellants filed a motion to further аmend their complaint, seeking to add a count alleging negligence on the part of the school based upon its duty toward the deceased student as a business invitee. The trial judge entered a final summary judgment, founding his decision upon a determination that a tree is not an attractive nuisance, and that no cause of action on that theory could be supported based upon the undisputed facts. He further ruled that by filing the second amended complaint the plaintiffs appeared to have abandoned their count or claim based upon the business invitee relatiоnship, and that in view of the lateness of the request for amendment, it should be denied.
Appellants obviously seek to draw inferences and conclusions from the undisputed facts in such a way as to support their contention that a jury issue is presented. However, there is no actual disputed fact in this case, with the sole exception of the extent to which the broken pieces of brick or concrete block were exposed and visible, if at all, through the thin covering of sand. For reasons which we will discuss, we find that this did not present a "genuine issue of material fact" precluding entry оf a summary judgment for defendants.
We begin our discussion with the observation that issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, but these issues become questions of law if the facts point to but one possible conclusion. See 23 Fla. Jur., Negligence, §§ 129, 133; Loftin v. McGregor,
Unfortunately, these often-repeated maxims offer little guidance for decision in the difficult cases, and this is particularly so when, as here, the ruling of the court has the effect of adjudicating the rights of those seeking redress for the tragic death of аn innocent child. However, so long as our system of laws recognizes a dividing line between conduct which may properly require a party to be subjected to the burden of trial and the risk of an adverse jury verdict for damages, and conduct which will not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line. Russell v. Jacksonville Gas Corporation,
Despite the difficulties, and added complexities brought about by the adoption of the comparative negligence rule[2], the trial and appellate courts of Florida continue to find cases requiring a court determination of nо liability.[3] Furthermore, it is evident that a court may determine as a matter of law "that reasonable men could not differ," without the appellate judges themselves in a given case agreeing unanimously, and such a determination may also be made even in the face of a contrary decision by a jury composed, ostensibly, of "reasonable men."[4]
Summary judgment, although sparingly used in negligence cases,[5] is nevertheless *262 a proper and necessary means for accomplishing the purpose of terminating litigation short of a jury trial, which satisfies the constitutional "right of access" to the courts as a means of resolving civil disputes.[6]
There is much discussion of the "attractive nuisance" doctrine in the briefs and we are required to rule on that asserted theory of liability. The trial judge's discussion of the law (as above indicated) is confined solely to that theory of liability. Appellants urge however, that their second amended complaint (admittedly couched in attractive nuisance terms) contains allegation of fact sufficient to require consideration under other theories of liability, and we agree.[7] Therefore, notwithstanding the trial judge's ruling that appellants "abandonеd" their claim based upon negligent breach of defendant's duties to the minor child as a "business invitee," to have the play and recreation areas of the school grounds in a reasonably safe condition, we have considered the arguments presented by appellants on that ground also.[8]
Since we have determined that the trial court's ultimate disposition of the case was correct, we affirm, even though we base our decision in part on reasons not stated in the judgment. 3 Fla.Jur.2d, Appellate Review, § 296.
The attractive nuisance theory is clearly inapplicable, and we concur with the trial judge's ruling on this point. No decision from the Florida courts, nor from any other jurisdiction (so far as has been made to appear to us) has held a tree to be an attractive nuisance under circumstances similar to those appearing here. See Annotation,
The dismissal of a complaint was affirmed in an Alabama case involving facts somewhat similar to those presented here, Mullins v. Pannell,
The annotation (
In McDaniel v. Mendez,
In Kwoka v. Campbell,
Without extending discussion of the attractive nuisance cases further, we think it is sufficient to note that with exception of the case of Stark v. Holtzclaw, supra, appellants have cited to us no case finding liability based upon a child's сlimbing of a *264 tree. The element of an inherently dangerous factor, such as the deadly force of electricity in Stark, is totally absent in this case. The danger of falling from the tree was not a condition created by appellees here, and the attractive nuisance doctrine does not protect one against his own clear fault. Sparks v. Castleberry Gardens, Inc.,
As previously noted, appellants urge that their case does not rest solely upon the attractive nuisance doctrine, although they do not concede the nonexistence of liability on that theory. They assert, and we think correctly, that the attractive nuisance theory is a legal fiction invoked for the purpose of transforming a trespassing child to the status of an invitee, thereby enabling the child to recover for injuries caused by ordinary negligence. It has been suggested by this court in at least one case that if the child already occupies the status of invitee, there is no necessity to invoke the doctrine. Crutchfield v. Adams,
The two basic duties owed by a landowner to invitees have been recently reiterated in Pittman v. Volusia County,
In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in а reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.
It is still fundamental, of course, that the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone. Robinson v. Allstate Insurance Company,
Liability is imposed upon the landowner only if natural or artificial conditions involve an "unreasonable risk." Gifford v. Galaxie of Homes of Tampa, Inc.,
No contention is made, nor could it reasonably be argued, that the condition of the ground under the tree, upon which the child fell, posed any inherent danger, or created any unusual condition not ordinarily found under trees in their natural state. Hardpacked earth, rocks, and projecting or sparsely buried roots from the tree itself abound in nature. It is also a fact оf life that innumerable objects are commonly found under trees. Fixed objects such as flower gardens with brick borders, rock gardens, curbs, driveways, sidewalks, fences, benches, and, particularly in play areas, moveable objects such as lunch boxes, roller skates, baseball bats and bicycles. The consequences of a fall of sufficient height from any tree, particularly if a vital part of the body such as the head strikes the ground, can be disastrous, as in the *265 present case, without negligence or fault of any kind on the part of any other person. To impose upon the landоwner the duty to anticipate and guard against the consequences of a falling child striking a hard ground surface, or some hard object on the surface of the ground, particularly in the absence of actual notice or knowledge of injuries produced by the same circumstances on the owner's premises in the past, would impose an unreasonable and prohibitively burdensome duty upon the owner which we find no justification in the law to impose. "Perfection of conduct is humanly impossible, and the law does not exact an unreasonable amount of care from anyоne. The degree of care required is ordinary and reasonable care." 23 Fla.Jur., Negligence, § 19.
The duty of a person to use care, and his consequent liability for negligence, depends upon the tendency of his acts to cause harm to another under the circumstances as they are known, or should be known by him. 23 Fla.Jur., Negligence, § 17; Firestone Tire & Rubber Co. Inc. v. Lippincott, supra; Stanage v. Bilbo, supra; Melton v. Estes, supra; Vermont Mutual Insurance Company v. Conway, supra, footnote 3. As one court has expressed it "foresight of harm lies at the foundation of duty to use care and therefore of negligence." Memorial Park Inc. v. Spinelli,
In Gibson v. Avis Rent-A-Car Systems, Inc.,
First, the legislature may specify the type of harm for which a tortfeasor is liable... . Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct.... Finally, there is the type of harm that has so frequently resulted from the same type of negligence that "`in the field of human experience' the same type of result may be expected again." (citations omitted)
Applying these tests here, we find (1) no legislation; (2) no allegation that any other child had received injuries from a fall to the ground beneath the mulberry tree, and (3) no basis for the contention that the same type of harm has so frequently resulted from the same type of negligence that "in the field of human experience" the same type of result may be expected again. As to this third category, we observe simply that trees and tree-climbers have been with us for many centuries, but appellants have not brought to our attention any case in which liability for injuries received in an accidental fall from a tree to the ground has been predicated upon the lack of "fallworthiness" of the ground surface.[9] We further observe that there аre no technological, social or economic changes that would suggest the necessity for a reappraisal of established negligence law or its application to the circumstances presented here.
In finding no liability as a matter of law the court in Rice v. Florida Power and Light Co., supra, clearly focused on foreseeability as a factor in determining the existence of a duty on the part of the power company. The facts in Rice were that the plaintiff's decedent was electrocuted when *266 a control line model airplane he was flying came into contact with a highly charged overhead electrical wire. One of the issues urged by the plaintiff was that a change in use of the field where the accident occurred, from expanded residential growth to primarily recreational use, created a genuine issue as to the duty to relocate or insulate the wires, or provide a warning concerning the hazard. There the court said (Id. at 839):
Had a clear view of the exposed lines not existed, or had FPL had actual notice that individuals were flying model airplanes attached to electrical conductors, the changed use of the underlying property might have been sufficiently persuasive to leave the questions of the existence of a duty and a breach of that duty for the resolution of a jury.
The analysis by the court in Rice, as in Gibson, takes into account the absence of actual knowledge by the defendant of the specific danger that resulted in the injury, as one of the elements determining liability, or absence of liability. Similarly, we note the absence of actual knowledge of any similar accident in the case now before us. See also Jenkins v. City of Miami Beach,
As for the matter of causation, we think it would be mere speculation to assume that the covered or partially covered pieces of broken brick or concrete block had any bearing upon the child's decision to climb the tree. Before a jury would be permitted to find that defendant's conduct contributed to the child's death there would have to be facts which would afford a reasonable basis for a conclusion that it is "more likely than not" that the conduct of defendant was "a substantial factor in bringing about that result." See Greene v. Flewelling,
A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
See also Greenhouse Inc. v. Thiermann,
The judgment is affirmed.
McCORD, J., and LILES, WOODIE A., Associate Judge (Ret.), concur.
NOTES
Notes
[1] We have recited the facts substantially as they are stated in appellant Shirley Ann Cassel's brief. See foоtnote 8, infra, for further description of the accident site as it evolved in the pleadings filed by appellants.
[2] Hoffman v. Jones,
[3] Jenkins v. City of Miami Beach,
Of course, during the same period covеred by the foregoing cases, the appellate courts have had occasions to disapprove of court determinations on negligence issues, for example: Gibson v. Avis Rent-A-Car Systems, Inc.,
[4] See dissents in Jenkins v. City of Miami Beach, Melton v. Estes, Alves v. Adler Built Industries, supra, footnote 3. See reversal of jury verdicts, Firestone Tire & Rubber v. Lippincott, Vermont Mutual v. Conway, supra, footnote 3.
[5] Harris v. City of Neptune Beach,
[6] However, the constitutional right of jury trial demands that particular care be exercised in the granting of summary judgments. Gartner v. Atlantic National Bank of Jacksonville,
[7] The complaint alleges that the decedent was a "fee-paying student" at the school; that the decedent was an invitee, having just completed his classes and was awaiting his car pool to take him home; that the defendants negligently maintained the grounds surrounding the mulberry tree on the school grounds in that they had "filled the area around the tree with broken concrete blocks and bricks and covered over those blocks and bricks with a thin layer of dirt, constituting a latent and hidden danger or trap ..."; that defendants knew or should have known that "young children would be attracted to climb the tree to gather the fruit," and, "due to their youth and inexperience and the thin layer of dirt covering the blocks and bricks" would not "realize the danger lying below the tree when they dropped or fell from the tree." Further, that "as a result of defendants' said negligence, the decedent struck his head on a concrete block or brick just below the dirt surface under the trеe and received mortal injuries from which he shortly died."
We note that the original complaint, which was dismissed by the court, particularly identified the area of the accident as in the "parking lot area," and that the parking lot area "was constructed by defendants and was a dirt covered driveway filled with cement blocks, bricks and other debris encircling several large mulberry trees." The first amended complaint, dismissed by the court, also identified the site as the "parking lot area," and that the dangerous condition consisted of "surrounding" one of the mulberry trees with cement blocks and bricks, thinly сovered with dirt. The second amended complaint was less specific than either the original or amended complaint as to the exact site of the accident. However, it is clear that the school-student relationship and the duty to use care commensurate with that relationship were clearly alleged in all versions of the complaint. In reviewing the second amended complaint in this light, therefore we are not passing upon any question not already ruled upon by the trial judge.
[8] Our determination that the second amended complaint fails to state a cause of action under either theory obviates the necessity of a ruling on whether the trial judge abused his discretion in refusing to allow the belated filing of a third amended complaint adding a count on the "school invitee" theory. See and compare allegations of original and first amended complaints, and comments on court's ruling, footnote 7, supra.
[9] Compare "crashworthiness" doctrine, Ford Motor Company v. Evancho,
[10] "`Probable cause' is not `possible cause.' `Foreseeable' is not `what might possibly occur.'" Bryant v. Jax Liquors,
[11] Our decision obviously may not be construed as condoning the creation of an inherently dangerous condition or "trap" for tree-climbing children.