GLENDA C. RIVAS AND PEDRO RIVAS, INDIVIDUALLY AND ON BEHALF OF ROBERT SCHAMEL, APPELLANTS,
v.
WRIGHT & LOPEZ OF FLORIDA, INC., APPELLEE
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Parents of an eight-year-old boy injured at a construction excavation site appeal a directed verdict in their tort suit against the contractor Wright & Lopez. The court reverses, finding that the adequacy of the contractor's safety precautions and warnings were jury questions rather than matters suitable for summary disposition.
The questions of whether the contractor breached its duty of care and whether it took adequate protective measures and warnings were matters for jury determination rather than directed verdict. The determinative question was whether the contractor did what should have been done to protect or warn the plaintiff, not whether the excavation was an attractive nuisance or inherently dangerous.
[1] A directed verdict is improper when the evidence presents questions of fact for the jury to decide.
[2] A contractor has a duty of care to protect or warn children who may be attracted to an excavation site.
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Join FLexlaw to unlock all legal intelligence“We conclude these were questions for the jury to decide.”
Establishes that the adequacy of the contractor's precautions and warnings were jury questions, not suitable for directed verdict.
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Join FLexlaw to unlock all legal intelligenceWright & Lopez created an excavation on a swale in a residential area near an elementary school. Robert Schamel, age eight, was injured at the site. T…
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PER CURIAM.
The mother and stepfather of an injured minor, on their own as well as his behalf, appeal the directed verdict of the trial court in a tort suit instituted by them. We reverse and remand.
Appellants' amended complaint alleged that appellee Wright & Lopez had created an excavation on a swale at which Robert Schamel, then eight, was injured; that appellee failed adequately to protect the traveling and cycling public; that appellee knew or reasonably should have known the location was in a residential area near a school, where young children lived and played; and that appellant knew or should have known children were playing on the mound of dirt created by the excavation. It was alleged Wright & Lopez had a duty of care to the minor plaintiff to refrain from maintaining a condition which was attractive to him and which created an unreasonable risk of harm which he was unlikely to appreciate. It was also alleged the site was not maintained in a reasonably safe condition for children attracted to it, nor was it secured to keep children out.
At the conclusion of plaintiffs' case, appellee moved for a directed verdict, contending that it had breached no duty which could be considered the proximate cause of Robert’s injury. Plaintiffs argued a duty was breached because much of the time during which the excavation existed appel-lee knew there was no barricade around the hole, and that among the times there was no barricade was the time when Robert was injured; that the hole was located adjacent to an elementary school, and the injury occurred after school hours when children were playing in the area; that appellee knew or should have known in light of the activity of children in the area such barricades as it had deployed were insufficient, and should have taken greater precaution.
We conclude these were questions for the jury to decide. The question whether it was or was not an attractive nuisance is not the determinative issue; nor is the question whether the three-foot hole was or was not inherently dangerous. The determinative question to be resolved by the jury here was whether the contractor had done what should have been done to protect or to warn the plaintiff.
DOWNEY and GLICKSTEIN, JJ., and WETHERINGTON, GERALD T., Associate Judge, concur.