City of Coral Springs v. Rippe

743 So. 2d 61, 1999 Fla. App. LEXIS 11551, 1999 WL 641801
CourtDistrict Court of Appeal of Florida
DecidedAugust 25, 1999
DocketNo. 98-0650
StatusPublished

This text of 743 So. 2d 61 (City of Coral Springs v. Rippe) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Coral Springs v. Rippe, 743 So. 2d 61, 1999 Fla. App. LEXIS 11551, 1999 WL 641801 (Fla. Ct. App. 1999).

Opinion

GUNTHER, J.

The City of Coral Springs (“City”) appeals a final judgment resulting in a damage award of $130,000 in favor of Herbert and Helene Rippe (“Rippes”). We affirm in all respects and write only to address the denial of the City’s motion for a directed verdict.

The Rippes were attending a Little League game at Mullins Park, a multi-recreational facility owned and operated by the City. The chain link fence surrounding the baseball field is eight feet high behind home plate, while the remainder of the fence, including the area in front of the players’ benches, is four feet high. Bleachers for spectator seating is provided behind the eight feet sections of the fence.

Helene was watching her son play in a Little League game from the bleachers. For a better view of the game, she moved in front of the players’ bench, where the fence is only four feet high. Helene was struck with a foul ball, knocked unconscious, and suffered injuries. The Rippes sued and alleged negligence against the City. It is clear that throughout the trial the issue of the City’s alleged negligence was related to the height of the fence. The jury concluded that Helene was 60% at fault and the City was 40% at fault. A final judgment of $130,000 was entered in favor of the Rippes.

The jury’s verdict was based upon the following negligence instruction,

The issues for your determination on the claim of HELENE RIPPE against the CITY OF CORAL SPRINGS are whether the CITY OF CORAL SPRINGS negligently failed to correct a dangerous condition of which the CITY OF CORAL SPRINGS either knew or should have known by the use of reasonable care, or negligently failed to warn HELENE RIPPE of a dangerous condition concerning which the CITY OF CORAL SPRINGS had, or should have had, knowledge greater than that of HELENE RIPPE and, .if so, whether such negligence was a legal cause of loss, injury, or damage sustained by HELENE RIPPE.

Arguing the trial court erred in denying its motion for a directed verdict, the City raises two contentions on appeal. First, the City maintains the purported basis for liability was the negligent design of the [63]*63baseball field, a discretionary or planning-level decision generally protected by sovereign immunity. In the alternative, the City argues that the Rippes did not establish a prima facie negligence case because they failed to present any evidence of the City’s actual or constructive knowledge of a dangerous condition.

Regarding the City’s sovereign immunity argument, the Rippes counter that planning-level decisions which create a known dangerous condition result in an operational-level duty to warn of or correct the dangerous condition, and operational-level activities are not protected by sovereign immunity. Further, the Rippes assert the evidence of the City’s knowledge of the dangerous condition was sufficient to present a factual issue for the jury.

“Generally, within the realm of sovereign immunity, the discretionary, judgmental, planning-level decisions of a governmental entity are immune from suit, while operational decisions are not.” Cygler v. Presjack, 667 So.2d 458, 460 (Fla. 4th DCA 1996). However, if the planning-level decision of a governmental entity creates a known dangerous condition, the governmental entity then has an operational-level duty to either warn of or correct the danger. See Department of Transp. v. Neilson, 419 So.2d 1071, 1078 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082, 1086 (Fla.1982).

In the present case, applying the negligence instruction as given, the jury concluded that the City either negligently failed to warn of or correct a known dangerous condition. If there was sufficient evidence to submit either issue to the jury, the City was not entitled to a directed verdict nor was sovereign immunity a bar to recovery. On the other hand, if the evidence presented was insufficient, the City was entitled to a directed verdict based upon the sufficiency of the evidence regardless of the sovereign immunity issue. Therefore, it is unnecessary to address the issue of sovereign immunity in this appeal; rather we must decide whether the Rippes presented sufficient evidence to withstand a directed verdict based upon the negligence instruction submitted to the jury-

Regarding the sufficiency of the evidence, the City argues that there was no evidence of the City’s knowledge of the alleged dangerous condition nor evidence of prior similar incidents presented, and without evidence of actual or constructive knowledge a duty to correct or warn does not arise. Further, the City contends that the Rippes failed to present any competent evidence which could have allowed the jury to conclude the City’s knowledge of the condition was superior to Helene’s.

In response, the Rippes contend that it is common knowledge that a batted ball could easily fly over a four foot fence. In addition, the Rippes argue that a previous tragedy is not a prerequisite to notice that a hazardous activity exists. Further, they maintain that the testimony indicated the City was fully aware of the possibility that a spectator standing behind the four foot fence could be hit with a batted baseball.

The Rippes rely upon the testimony of the park recreation manager to establish the City’s knowledge of the dangerous condition, which would create a duty to warn or correct. The recreation manager testified that he did not have any knowledge of any prior similar incidents. In addition, the recreation manager testified,

Q: Were you aware of the situations prior to this accident, you and members of the staff in the parks and recreation department, that parents had a tendency to view the game by looking over the four-foot fence?
A: It’s not what we had — it’s not the intention of the field to have people standing by the four-foot fence. I’m not sure that anyone would have come up and said don’t do that. I think the assumption is that we provide the bleachers behind a safe area, and if that somebody does stand by the four-foot fence, that they’re watching the game [64]*64and that they assume some risk of paying attention to the game that they’re watching at what’s going on.

This is the only evidence relied upon by the Rippes to establish the City’s knowledge of the dangerous condition.

When considering a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the non-moving party, and if there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper. See Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47, 61 (Fla. 4th DCA 1994). “A trial court may direct a verdict against a plaintiff only if no evidence is introduced on which the jury may lawfully find for the plaintiff.” Id. (quoting Amoroso v. Samuel Friedland Family Enters., 604 So.2d 827, 831 (Fla. 4th DCA 1992)). As such, it was proper for the trial court to deny the City’s motion for a directed verdict and submit the case to the jury if there was any evidence to support a verdict for the Rippes.

Both parties rely upon City of Milton v. Broxson, 514 So.2d 1116 (Fla. 1st DCA 1987), wherein the city owned and operated a softball field, an area to warm up was not designated, the players for the upcoming game were warming up near the spectators, and the plaintiff was struck and injured by a softball as a result. See id. at 1117.

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Related

Ahl v. Stone Southwest, Inc.
666 So. 2d 922 (District Court of Appeal of Florida, 1995)
Cygler v. Presjack
667 So. 2d 458 (District Court of Appeal of Florida, 1996)
Amoroso v. SAMUEL FRIEDLAND FAMILY
604 So. 2d 827 (District Court of Appeal of Florida, 1992)
Gold, Vann & White, PA v. DeBERRY EX REL. DeBERRY
639 So. 2d 47 (District Court of Appeal of Florida, 1994)
City of Milton v. Broxson
514 So. 2d 1116 (District Court of Appeal of Florida, 1987)
City of St. Petersburg v. Collom
419 So. 2d 1082 (Supreme Court of Florida, 1982)
Department of Transp. v. Neilson
419 So. 2d 1071 (Supreme Court of Florida, 1982)

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Bluebook (online)
743 So. 2d 61, 1999 Fla. App. LEXIS 11551, 1999 WL 641801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-coral-springs-v-rippe-fladistctapp-1999.