Limones v. School District of Lee County

111 So. 3d 901, 2013 WL 439988, 2013 Fla. App. LEXIS 1821
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 2013
DocketNo. 2D11-5191
StatusPublished
Cited by8 cases

This text of 111 So. 3d 901 (Limones v. School District of Lee County) 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
Limones v. School District of Lee County, 111 So. 3d 901, 2013 WL 439988, 2013 Fla. App. LEXIS 1821 (Fla. Ct. App. 2013).

Opinion

SILBERMAN, Chief Judge.

Abel Limones, Sr., and Sanjuana Castillo, Plaintiffs below in this negligence action they filed on behalf of their teenage son Abel Limones, Jr., seek review of the final summary judgment in favor of the defendant, the School Board of Lee County.1 This tragic case involves severe brain injury to Abel, a high school athlete. The cause of action arose when Abel collapsed on the field during a high school soccer game. When he stopped breathing and had no discernible pulse, his coach and a nurse bystander performed CPR. But Abel was not resuscitated until emergency personnel arrived and used a defibrillator.2 Plaintiffs alleged that the School Board was negligent in failing to maintain an automated external defibrillator (AED) on or near the soccer field, to make it available for use, or in failing to actually use an AED on Abel. Plaintiffs also alleged that this negligence caused Abel to suffer severe and permanent brain damage. In the final summary judgment, the court determined that the School Board did not have a duty to make available, diagnose the need for, or use an AED and that, even if it did, the School Board was statutorily immune from an action on that basis. We affirm.

The soccer game between East Lee County High School and Riverdale High School took place at Riverdale’s soccer field on November 13, 2008. Abel, who was playing for East Lee County, abruptly collapsed on the field at about 7:40 p.m. Abel lost consciousness, stopped breathing, and had no discernible pulse within three minutes. Riverdale’s Assistant Principal called 9-1-1 at 7:43 p.m. while East Lee County’s coach, Thomas Busatta, and a [904]*904nurse bystander performed CPR. Coach Busatta testified that he called for an AED but no one responded. No one else, including the nurse who was helping Coach Busatta perform CPR, said they heard Coach Busatta call for an AED. Sadly, it appears that there was an AED on a golf cart that was parked near the soccer field’s end zone. The Fire Department arrived at the soccer field at 7:50 p.m. and used a defibrillator to deliver a shock to Abel’s heart with no success. Emergency Medical Service personnel arrived on the scene almost simultaneously and changed out the Fire Department’s defibrillator for their own. They delivered four additional shocks and administered a series of intravenous medications. Abel was resuscitated at 8:06 p.m., which was twenty-three minutes after the 9-1-1 call.

Plaintiffs procured an expert who submitted an affidavit ascribing Abel’s brain damage to the failure to use an AED sooner as follows:

Had an AED been provided to Thomas Busatta when he requested it and had it been used on Abel Limones, Jr. within 1 to 2 minutes of the time he became unconscious, stopped breathing, and had no pulse, Abel Limones, Jr. would not have required so many additional defi-brillations or shocks and would not have sustained the permanent and catastrophic anoxic brain injury leaving him in a near persistent vegetative state requiring life-long 24 hour care.

In accordance with this expert opinion, Plaintiffs pursued two separate negligence theories below. First, they asserted a general negligence claim against the School Board based on its common law duty to provide a reasonably safe environment for Abel. Second, they asserted a negligence claim based on the School Board’s failure to adhere to the terms of section 1006.165, Florida Statutes (2008), which governs AED requirements at certain public schools. The trial court granted summary judgment based on its conclusions that there was no common law duty to make available, diagnose the need for, or use an AED and that section 1006.165 likewise did not establish a cause of action for negligence. The trial court also concluded that, even if there was such a duty, the School Board was entitled to immunity under the Cardiac Arrest Survival Act.

These are legal questions that we review de novo. See Univ. of Fla. Bd. of Trs. v. Stone, 92 So.3d 264, 267 (Fla. 1st DCA 2012) (holding that the issue of statutory immunity from a negligence action is reviewed de novo); L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008) (holding that review of a trial court’s ruling regarding the existence of a duty of care is de novo).

I. Common Law Duty

A. School Board’s Duty to Student Athletes

Florida courts generally recognize a school’s duty to adequately supervise its students, and this duty extends to athletic events. See Leahy v. Sch. Bd. of Hernando Cnty., 450 So.2d 883, 885 (Fla. 5th DCA 1984) (citing Rupp v. Bryant, 417 So.2d 658 (Fla.1982)). This common law duty arises from the idea that the school stands “ ‘partially in place of the student’s parents.’ ” Id. (quoting Rupp, 417 So.2d at 666). The school’s duties regarding athletic activities include (1) providing adequate instruction, (2) supplying appropriate equipment, (3) reasonably selecting or matching athletes, (4) properly supervising the event, and (5) utilizing appropriate post-injury efforts to protect the injury against aggravation. Id. Thus, as specifically relevant to this case, the School Board had a common law duty to use [905]*905appropriate post-injury efforts to protect Abel’s injury against aggravation.

Once a determination is made that a duty to use appropriate post-injury efforts exists, the court must determine the scope and extent of the duty. Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628 N.W.2d 697, 703 (2001). Generally this standard is an objective “reasonably prudent person standard,” which is what a reasonably prudent person would have done under the circumstances. Id. at 703-04. But the analysis of the scope and extent of a school’s duty in a sports setting depends largely on the particular facts and the circumstances of the case. Id.

The question before this court is whether reasonably prudent post-injury efforts for Abel would have required making available, diagnosing the need for, or using an AED. Florida’s district courts have not addressed a school district’s duties in this context. But the Fourth District has concluded that a business owner does not have a common law duty to provide CPR or maintain or use an AED when a business invitee collapses while exercising at the owner’s facility. See L.A. Fitness, 980 So.2d at 559, 562.

In L.A. Fitness, a health club patron suffered cardiac arrest and collapsed during his workout. Id. at 552. An employee of the health club, who was certified in CPR, believed the patron was having a stroke or seizure. 9-1-1 was called, but CPR was not performed on the patron. Id. at 552-53. The health club did not have an AED on the premises. Id. at 555.

In determining whether the health club had a duty to perform CPR or to maintain or use an AED, the court looked to the Restatement of Torts. Id. at 557. The Restatement provides “ ‘that a proprietor is under an ordinary duty of care to render aid to an invitee after he knows or has reason to know the invitee is ill or injured.’” Id. (quoting Restatement (Second) of Torts § 314A (1965)).

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111 So. 3d 901, 2013 WL 439988, 2013 Fla. App. LEXIS 1821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/limones-v-school-district-of-lee-county-fladistctapp-2013.