II. Heroy’s Acts Caused Ellison’s Injury
As outlined to the Court supra in the Board’s Statement of Undisputed Facts, the Chair itself is the legal cause of Ellison’s accident. In other words, “but for” the damaged Chair, Ellison would not have suffered her injury. The undisputed evidence of record proves that Heroy broke the Chair and per Plaintiff Ellison, Heroy swapped Ellison’s seat with the broken Chair sometime before the morning of April 18, 2011.
“[W]hen reasonable people cannot differ” as to the legal cause of an incident, “the issue has been said to be one of law for the court.” East Coast Elec. v. Dunn, 979 So. 2d 1018, 1020 (Fla. 3d DCA 2008)(citing Department of Transp. v. Anglin, 502 So. 2d 896, 898 (Fla. 1987)). On the facts of this case, reasonable people cannot differ – Heroy caused Ellison’s accident, not the School Board.[2] See Goldberg, supra. Given these facts, Summary Judgment is appropriate for the School Board.
III. The School Board Was Not Negligent
As a property owner, the School Board has a duty “(1) to use reasonable care to maintain [its] premises in a reasonably safe condition and (2) to warn [an] invitee of any concealed dangers that the owner knows or should know about, which are unknown to the invitee and cannot be discovered by the invitee through due care.” Freidrich v. Fetterman and Assoc., P.A., 38 Fla. L. Weekly S768 (Fla. Oct. 24, 2013). In the context of unknown dangers,
the legal liability of a premises possessor for injuries resulting from dangers not actually known by the possessor prior to the injury is based on a breach of the legal duty to use reasonable care to look for, and to discover, reasonably foreseeable but not actually known dangerous conditions.... This duty of a premises possessor to look for unknown dangerous conditions not created by the possessor or his agents is breached by the possessor not making a reasonably diligent search or inspection at reasonable intervals of time.... The trial of any such premises liability action involves ... evidence as to the defendant's actual actions relating to the extent and frequency of inspections actually made.... [I]f the injured invitee fails to prove ... that the dangerous condition existed a length of time prior to the injury in excess of a reasonable period between inspections, the possessor should not be held liable for injury caused by that dangerous condition. In such a case, the length of time the dangerous condition existed prior to the injury is an indispensable factor in determining liability.
Winn-Dixie Stores, Inc., supra at 215.
According to Plaintiff Ellison’s testimony, Heroy “broke his chair while I was gone and he switched it out with mine.” Tr. of Depo. of T. Ellison at 77. Further, even though the Chair was damaged, “it would go back up” and it “looked the same” as all other chairs in the room. Tr. of Depo. of J. Heroy at 21; Tr. of Depo. of T. Ellison at 84. There is no testimony in this record from which a reasonable person could infer that a regular maintenance program would have caught the damage done to the Chair, given the short time frame between the cause and the incident (per the Plaintiff, less than one week). Further, given Heroy’s lack of participation in the management process for publicly owned assets[3], the School Board cannot be held liable for any injury that may result from his failure to properly report the damaged Chair to Ridge staff.
The School Board was not negligent, as a matter of law. Summary Judgment is therefore appropriate.
IV. The Ellison Family’s Consortium Claims Cannot Be Sustained
Since Ellison’s injuries cannot be attributed to an act of School Board negligence, the School Board is not liable to K.M. Ellison for common law consortium nor is it liable to Chapman or Yates for statutory loss of parental consortium. See Gates v. Foley, 247 So. 2d 40 (Fla. 1971); §768.0415, Fla. Stat. (2013).
Conclusion
In sum, “the facts” of this case “point to but one possible conclusion.” Menendez, supra. Heroy’s negligence caused Ellison’s accident. While the School Board, as property owner, may seem to have some liability to Ellison at first blush, reasonable people cannot differ, especially under Ellison’s version of the case:
Heroy, a man who weighed over 500 pounds, broke a piece of public property and, without telling a member of the staff for fear of embarassment, placed it in such a way so as to be switched with another properly working unit. He was the driving force behind the incident, the active and intervening legal cause of Ellison’s injury. He is accountable to the Ellison Family for its damages, not the School Board. Summary Judgment must be granted.
[1] The School Board candidly admits at the outset that a full review of the record will reveal differences between Ellison’s and Heroy’s versions of the events surrounding Ellison’s accident. Compare, e.g., Tr. of Depo. of T. Ellison at 74 (“Jonathan spoke up and says I broke my chair and I switched it out with yours and I meant to tell you.”) with Tr. of Depo. of J Heroy at 29 (“I believe I said something to the effect of that the cleaning crews must have moved my chair.”). Regardless of these differences in the narrative of events, under Florida law “a party may not avoid summary judgment by taking a position contrary to the one that he or she has taken in prior sworn testimony.” Spatz v. Embassy Home Care, Inc., 9 So. 3d 697, 698 (Fla. 4th DCA 2009)(citing Stanford v. CSX Transp., Inc., 637 So. 2d 37, 38 (Fla. 2d DCA 1994); See also, Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). Consequently, in this Motion for Summary Judgment, the School Board will rely on the facts of the case as outlined by Plaintiff Ellison in her deposition.
[2] As mentioned in the prior footnote, Heroy’s version of the facts is different – he claims that the School Board’s custodial staff actually switched the chairs while cleaning the room. Tr. of Depo. of J Heroy at 29, 35-36. Even if the Court could consider this scenario, despite the Plaintiff’s testimony at deposition, the facts remain that Heroy broke the Chair and Heroy failed to inform the Board or its employees about the Chair’s condition. Under either set of facts, Heroy is the active and intervening principal cause of Ellison’s injury.
[3] Heroy is mandated by the Student Code of Conduct to report any damage to School Board property under his care and control. See Aff. of N. Woolcock, Ex. ‘A’.
