ERROR TO ENTER FINAL SUMMARY JUDGMENT BASED ON AN OPEN AND OBVIOUS HAZARD
Collias v. Gateway Academy, 46 Fla. L. Weekly D140 (Fla.1st DCA January 11, 2021):
A seven-year-old child got distracted while running a makeshift course in her private school’s indoor auditorium, and ran into a pedestal table with a glass edge causing the child to suffer long-term injuries.
The trial judge entered final summary judgment on the basis that the table was an “open and obvious” risk of which the plaintiff was aware, and that her injury was her own fault, with no negligence on the school’s part.
The court reminded us that courts should hesitate to absolve property owners of liability on an “open and obvious” theory, unless the crystalized and undisputed facts establish as a matter of law that the plaintiff knowingly undertook an open and obvious risk for which no warning was necessary.
In this case, factual issues existed as to whether the table was so open and obvious as to make it the type of risk that a seven-year-old child engaging in an indoor running exercise would foreseeably perceive and avoid, as a matter of law.
The court distinguished a case where an adult customer tripped over a pallet as he exited a Winn Dixie store, a pallet he admitted he saw and walked around before. A seven-yearold simply cannot be charged with the same degree of knowledge.
Also, here, these second graders were required to run around the pedestal table despite its potential risk of harm, and it was foreseeable that a second grader might become distracted while running indoors in a confined area with 20 other classmates.
The court found reversal was warranted, and that the jury should determine whether the school acted negligently.