Torts
— Product liability — Action by father of child who was injured while playing
at city park playground against manufacturer of jungle gym from which child
allegedly fell, alleging design defects in jungle gym — Error to enter summary
judgment for defendant where there was inconsistent testimony and factual issue
as to the causation of child’s injuries

VALERIY BOGATOV, as Father and Representative of ALEX
BOGATOV, Appellant, v. CITY OF HALLANDALE BEACH and KIDZ ZONE PLAYSYSTEMS,
INC., Appellees. 4th District. Case No. 4D14-4694. May 25, 2016. Appeal from
the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Carol-Lisa Phillips, Judge; L.T. Case No. 12-18354 (25). Counsel: Justin R.
Parafinczuk and Marcus J. Susen of Koch, Parafinczuk, & Wolf, P.A., Fort
Lauderdale, for appellant. Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy
& Ford, P.A., Orlando, for appellee Kidz Zone Playsystems, Inc.

(CONNER, J.) The appellant, the father of a two-year-old
child injured while playing at a city park playground, appeals the trial
court’s order granting summary judgment in favor of the appellee, the
manufacturer of a jungle gym at the playground. The appellant raises several
issues asserting trial court error. Because we find merit in the argument that
there were genuine issues of material fact which preclude summary judgment, we
reverse the summary judgment and remand for further proceedings, without
discussing the merits of the other issues.

Factual
Background and Trial Court Proceedings

The appellant filed an initial complaint against the City of
Hallandale Beach claiming that the City’s negligence in maintaining the park
led to the child’s injuries. The appellant alleged that: “While on the jungle
gym, [the child] fell from a short distance off the jungle gym onto the
unprotected hard surface directly underneath the jungle gym,” which caused “a
fractured left femur bone and multiple contusions to the left leg, restraining
[the child] to a wheelchair for several months.”

Subsequently, the appellant filed an amended complaint,
adding the appellee as a defendant. In the amended complaint, the appellant
added causes of action against the appellee in multiple counts asserting
various theories of liability because the appellee “manufactured and designed”
the jungle gym from which the child fell. The appellant further alleged that
“[a]t the time that the Jungle gym was sold, the product was defective and
unsafe for its intended purpose because of defects in its design,” pointing
specifically to “the lack of adequate handles used for grasping.” The appellant
claimed that this defect resulted in the child’s injuries.

The appellee moved for summary judgment, arguing that its
equipment was not the cause of the child’s injuries. As support for its
argument, the appellee pointed to two sources of information: (1) the
deposition of the child’s nanny, the only known eyewitness to the child’s fall,
who stated that the child was not on the jungle gym when he fell, but, rather,
running around the park; and (2) the appellant’s expert’s report, wherein the
expert “opined [that] the reasoning behind and main contributing factor to the
injury to [the child] was the failure of the City of Hallandale Beach to have
the adequate amount of wood chips on the playground surface, as prescribed by
industry standards.” In response to the motion, the appellant submitted several
affidavits, reports, and documents opposing summary judgment. The trial court
granted summary judgment without stating its reasoning. The appellant gave
notice of appeal.

Appellate
Analysis

“ ‘The standard of review of an order granting summary
judgment is de novo.’ ” Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla.
4th DCA 2007) (quoting Biggins v. Fantasma Prods., Inc. of Fla., 943 So.
2d 952, 955-56 (Fla. 4th DCA 2006)).

Summary judgment is designed
to test the sufficiency of the evidence to determine if there is sufficient
evidence at issue to justify a trial or formal hearing on the issues raised in
the pleadings, and summary judgment is appropriate where, as a matter of law,
it is apparent from the pleadings, depositions, affidavits, or other evidence
that there is no genuine issue of material fact and the moving party is
entitled to relief as a matter of law.

Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla.
2006).

Our review of the record leads us to conclude that the
appellant brought forth sufficient summary judgment evidence to establish a
genuine issue of material fact as to the cause of the child’s injuries. First,
a police report regarding the incident indicates that the nanny made a
statement to law enforcement that the child was on the jungle gym prior to his
injury, which was inconsistent with her deposition testimony that the child
fell while running. “In Florida, evidence of inconsistency in testimony and
documentary evidence itself creates a disputed issue of fact for the jury,
which may not be resolved by the trial court adversely to the nonmoving party
[on motion for summary judgment].” Gardner v. Holifield, 639 So. 2d 652,
657 (Fla. 1st DCA 1994). Therefore, the inconsistency in the statements made by
the nanny must be resolved by the trier of fact.

Additionally, two medical reports1 used to oppose summary judgment
indicate that the child’s “family”2 states that he fell approximately two
feet, and that the child was at the park and “sustained a fall from a height of
about 4 feet.” The appellee argues that the fact that the child fell from a
certain height is not relevant to his diagnosis or treatment, but we disagree.
The fact that a patient fell from a height, as opposed to falling while running
on the ground, is important information for purposes of medical diagnosis.
Thus, the statements in the medical reports regarding falling from a height
several feet off the ground are admissible as an exception to hearsay under
section 90.803(4), Florida Statutes (2012). Section 90.803(4), states:

(4) Statements for purposes
of medical diagnosis or treatment. — Statements made for
purposes of medical diagnosis or treatment by a person seeking the diagnosis or
treatment, or made by an individual who has knowledge of the facts and is
legally responsible for the person who is unable to communicate the facts,
which statements describe medical history, past or present symptoms, pain, or
sensations, or the inceptions or general character of the cause or external
source thereof, insofar as reasonably pertinent to diagnosis or treatment.

Such evidence is admissible because “[w]hen a person
consults a doctor for the purpose of obtaining treatment, he or she has a
strong motivation to be truthful because of the desire for effective
treatment.” Charles Ehrhardt, Florida Evidence § 90.803(4), at 883 (2011
ed.).

Having identified more than one piece of summary judgment
evidence which demonstrates a genuine issue of material fact as to the cause of
the child’s injury, we do not discuss the other issues raised contesting the
propriety of the summary judgment. We reverse the order granting summary
judgment and remand the case for further proceedings.

Reversed and Remanded. (WARNER and MAY, JJ.,
concur.)

__________________

1A week prior to the hearing on the
motion for summary judgment, the appellee filed a motion to strike most of the
appellant’s evidence in opposition to summary judgment. The trial court granted
most of the appellee’s motion; striking some of the appellant’s evidence in
whole or in part. Since the medical and hospital reports were stricken by the
trial court only “as to portions that contain hearsay and are not relevant to
the medical treatment,” and we determine that the information regarding the
child falling from a certain height is relevant for medical treatment, we
consider such summary judgment evidence as proper, even if the trial court did
not.

2As noted below, section 90.803(4),
Florida Statutes, pertains to statements “made by an individual who has
knowledge of the facts and is legally responsible for the person who is unable
to communicate the facts.” § 90.803(4), Fla. Stat. (2012).

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