          Supreme Court of Florida
                                  ____________

                                  No. SC13-932
                                  ____________

                          ABEL LIMONES, SR., et al.,
                                 Petitioners,

                                         vs.

                SCHOOL DISTRICT OF LEE COUNTY et al.,
                            Respondents.

                                  [April 2, 2015]

LEWIS, J.

      Petitioners Abel Limones, Sr., and Sanjuana Castillo seek review of the

decision of the Second District Court of Appeal in Limones v. School District of

Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), asserting that it expressly and

directly conflicts with the decision of this Court in McCain v. Florida Power Corp.,

593 So. 2d 500 (Fla. 1992), and several other Florida decisions.

                                 BACKGROUND

      At approximately 7:40 p.m. on November 13, 2008, fifteen-year-old Abel

Limones, Jr., suddenly collapsed during a high school soccer game. There is no

evidence in the record to suggest that Abel collapsed due to a collision with
another player. The event involved a soccer game between East Lee County High

School, Abel’s school, and Riverdale High School, the host school. Both schools

belong to the School District of Lee County. When Abel was unable to rise,

Thomas Busatta, the coach for East Lee County High School, immediately ran

onto the field to check his player. Abel tried to speak to Busatta, but within three

minutes of the collapse, he appeared to stop breathing and lost consciousness.

Busatta was unable to detect a pulse. An administrator from Riverdale High

School who called 911, and two parents in the stands who were nurses, joined

Busatta on the field. Busatta and one nurse began to perform cardiopulmonary

resuscitation (CPR) on Abel. Busatta, who was certified in the use of an

automated external defibrillator (AED), testified that he yelled for an AED. The

AED in the possession of Riverdale High School was actually at the game facility

located at the end of the soccer field, but it was never brought on the field to

Busatta to assist in reviving Abel.

      Emergency responders from the fire department arrived at approximately

7:50 p.m. and applied their semi-automatic AED to revive Abel, but that was

unsuccessful. Next, responders from the Emergency Medical Service (EMS)

arrived and utilized a fully automatic AED on Abel and also administered several

drugs in an attempt to restore his heartbeat. After application of shocks and drugs,

emergency responders revived Abel, but not until approximately 8:06 p.m., which


                                         -2-
was twenty-six minutes after his initial collapse. Although Abel survived, he

suffered a severe brain injury due to a lack of oxygen over the time delay involved.

As a result, he now remains in a nearly persistent vegetative state that will require

full-time care for the remainder of his life.

      Petitioners, Abel’s parents, retained an expert, Dr. David Systrom, M.D.,

who determined that Abel suffered from a previously undetected underlying heart

condition. Dr. Systrom further opined that if shocks from an AED had been

administered earlier, oxygen would have been restored to Abel’s brain sooner and

he would not have suffered the brain injury that left him in the current permanent

vegetative state. Petitioners then filed an action against Respondent, the School

Board of Lee County.1 They alleged that Respondent breached both a common

law duty and a statutory duty as imposed by section 1006.165, Florida Statutes

(2008),2 when it failed to apply an AED on Abel after his collapse. The School

Board moved for summary judgment, which the trial court granted and entered

final judgment.




      1. Petitioners initially filed an action against the School District of Lee
County and the School Board of Lee County. All parties conceded that the only
proper respondent in this case is the School Board of Lee County.

       2. Section 1006.165, Florida Statutes, requires all public schools that
participate in the Florida High School Athletic Association to acquire an AED,
train personnel in its use, and register its location with the local EMS.


                                          -3-
      On appeal, the Second District recognized that Respondent owed a duty to

supervise its students, which in the context of student athletes included a duty to

prevent aggravation of an injury. Limones, 111 So. 3d at 904-05 (citing Rupp v.

Bryant, 417 So. 2d 658 (Fla. 1982); Leahy v. Sch. Bd. of Hernando Cnty., 450 So.

2d 883, 885 (Fla. 5th DCA 1984)). However, the Second District proceeded to

expand its consideration of the duty owed and enlarged its consideration into a

factual scope, extent, and performance of that duty analysis. Id. at 905 (citing

Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 628 N.W.2d 697, 703 (Neb. 2001)).

In this analysis, the Second District considered and evaluated whether post-injury

efforts in connection with satisfying the duty to Abel should have included making

available, diagnosing the need for, or using an AED. Id. The Second District

relied on the discussion provided by the Fourth District Court of Appeal in L.A.

Fitness International, LLC v. Mayer, 980 So. 2d 550 (Fla. 4th DCA 2008), even

though that case did not consider the same “duty” and the health club did not have

a duty involving students or any similar relationship.

      In L.A. Fitness, the Fourth District considered whether a health club

breached its duty of reasonable care owed to a customer who was using training

equipment when the health club failed to acquire or use an AED on a customer in

cardiac distress. Id. at 556-57. After a review of the common law duties owed by

a business owner to its invitees, the Fourth District determined that a health club


                                         -4-
owed no duty to provide or use an AED on a patron in cardiac distress. Id. at 562.

The Second District in Limones found no distinction between L.A. Fitness and the

present case, even though the differences are extreme, and concluded that

reasonably prudent post-injury efforts did not require Respondent to provide,

diagnose the need for, or use an AED. Limones, 111 So. 3d at 906. The Second

District also determined that neither the undertaker’s doctrine3 nor section

1006.165, Florida Statutes, imposed a duty to use an AED on Abel. Id. at 906-07.

Finally, after it concluded that Respondent was immune from civil liability under

section 768.1325(3), Florida Statutes (2008), the Second District affirmed the

decision of the trial court. Id. at 908-09. This review follows.

                                     ANALYSIS

                                     Jurisdiction

      We first consider whether jurisdiction exists to review this matter.

Petitioners assert that the decision below expressly and directly conflicts with the

decision of this Court in McCain and other Florida decisions. See art. V, § 3(b)(3),




        3. The undertaker’s doctrine imposes a duty of reasonable care upon a party
that freely or by contract undertakes to perform a service for another party. See,
e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003) (citing
Restatement (Second) of Torts § 323 (1965)). The undertaker is subject to liability
if: (a) he or she fails to exercise reasonable care, which results in increased harm to
the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a
result. See id.


                                         -5-
Fla. Const. Specifically, Petitioners claim that the Second District defined the duty

in a manner that conflicts with the approach delineated in McCain. We agree.

      We have long held that to succeed on a claim of negligence, a plaintiff must

establish the four elements of duty, breach, proximate causation, and damages.

See, e.g., U.S. v. Stevens, 994 So. 2d 1062, 1065-66 (Fla. 2008). Of these

elements, only the existence of a duty is a legal question because duty is the

standard to which the jury compares the conduct of the defendant. McCain, 593

So. 2d at 503. Florida law recognizes the following four sources of duty: (1)

statutes or regulations; (2) common law interpretations of those statutes or

regulations; (3) other sources in the common law; and (4) the general facts of the

case. Id. at 503 n.2. As in this case, when the source of the duty falls within the

first three sources, the factual inquiry necessary to establish a duty is limited.4 The

court must simply determine whether a statute, regulation, or the common law

imposes a duty of care upon the defendant. The judicial determination of the

existence of a duty is a minimal threshold that merely opens the courthouse doors.

Id. at 502. Once a court has concluded that a duty exists, Florida law neither

requires nor allows the court to further expand its consideration into how a



      4. Even when the duty is rooted in the fourth prong, factual inquiry into the
existence of a duty is limited to whether the “defendant’s conduct foreseeably
created a broader ‘zone of risk’ that poses a general threat of harm to others.”
McCain, 593 So. 2d at 502.


                                         -6-
reasonably prudent person would or should act under the circumstances as a matter

of law.5 We have clearly stated that the remaining elements of negligence—

breach, proximate causation, and damages—are to be resolved by the fact-finder.

See Dorsey v. Reider, 139 So. 3d 860, 866 (Fla. 2014); Williams v. Davis, 974 So.

2d 1052, 1056 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); see also Orlando

Exec. Park, Inc. v. Robbins, 433 So. 2d 491, 493 (Fla. 1983) (“[I]t is peculiarly a

jury function to determine what precautions are reasonably required in the exercise

of a particular duty of due care.” (citation omitted)), receded from on other grounds

by Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).

      The Second District determined that a clearly recognized common law duty

existed under both Rupp and Leahy. Rupp established that school employees must

reasonably supervise students during activities that are subject to the control of the

school. 417 So. 2d at 666; see also Leahy, 450 So. 2d at 885 (explaining that the

duty of supervision owed by a school to its students included a duty to prevent

aggravation of an injury). However, the Second District incorrectly expanded

Florida law and invaded the province of the jury when it further considered




       5. Of course, as McCain acknowledges, some facts must be established to
determine whether a duty exists, such as the identity of the parties, their
relationship, and whether that relationship qualifies as a special relationship
recognized by tort law and subject to heightened duties. See 593 So. 2d at 503-04.
However, further factual inquiry risks invasion of the province of the jury.


                                         -7-
whether post-injury efforts required Respondent to make available, diagnose the

need for, or use the AED on Abel. Limones, 111 So. 3d at 905. This detailed

analysis exceeded the threshold requirement that this Court established in McCain.

Therefore, conflict jurisdiction exists to consider the merits of this case and we

choose to exercise our discretion to resolve this conflict. We review de novo

rulings on summary judgment with respect to purely legal questions. See, e.g.,

Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003).

                                Common Law Duty

      As a general principle, a party does not have a duty to take affirmative action

to protect or aid another unless a special relationship exists which creates such a

duty. See Restatement (Second) of Torts § 314 cmt. a (1965). When such a

relationship exists, the law requires the party to act with reasonable care toward the

person in need of protection or aid. See id. § 314a cmt. e. As the Second District

acknowledged below, Florida courts have recognized a special relationship

between schools and their students based upon the fact that a school functions at

least partially in the place of parents during the school day and school-sponsored

activities. See, e.g., Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86, 88-89 (Fla.

2000) (citing Rupp, 417 So. 2d at 666). Mandatory education of children also

supports this relationship. Rupp, 417 So. 2d at 666.




                                         -8-
      This special relationship requires a school to reasonably supervise its

students during all activities that are subject to the control of the school, even if the

activities occur beyond the boundaries of the school or involve adult students. See

Nova Se. Univ., 758 So. 2d at 88-89 (applying the in loco parentis doctrine to a

relationship between an adult student and a university when the university

mandated participation by the student in an off-campus internship); Rupp, 417 So.

2d at 666-67 (concluding that a duty of supervision existed during an unsanctioned

off-campus hazing event by a school-sponsored club); cf. Kazanjian v. Sch. Bd. of

Palm Beach Cnty., 967 So. 2d 259, 268 (Fla. 4th DCA 2007) (finding that the duty

of supervision did not extend to a student who was injured when she left school

premises without authorization). This duty to supervise requires teachers and other

applicable school employees to act with reasonable care under the circumstances.

Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560, 571 (11th Cir. 1997) (citing Florida

law); see also Nova Se. Univ., 758 So. 2d at 90 (noting that the university had a

duty to use reasonable care when it assigned students to off-campus internships).

Thereafter, it is for the jury to determine whether, under the relevant

circumstances, the school employee has acted unreasonably and, therefore,

breached the duty owed. See La Petite Acad., Inc. v. Nassef ex rel. Knippel, 674

So. 2d 181, 182 (Fla. 2d DCA 1996) (citing Benton v. Sch. Bd. of Broward Cnty.,

386 So. 2d 831, 834 (Fla. 4th DCA 1980)); see also Zalkin v. Am. Learning Sys.,


                                          -9-
639 So. 2d 1020, 1021 (Fla. 3d DCA 1994) (concluding that whether alleged

negligent supervision by school employees resulted in injury to a student was a

jury issue).

      Lower courts in Florida have recognized that the duty of supervision creates

the following specific duties owed to student athletes: (1) schools must adequately

instruct student athletes; (2) schools must provide proper equipment; (3) schools

must reasonably match participants; (4) schools must adequately supervise athletic

events; and (5) schools must take appropriate measures after a student is injured to

prevent aggravation of the injury. See Limones, 111 So. 3d at 904 (citing Leahy,

450 So. 2d at 885); see also Zalkin, 639 So. 2d at 1021. Other jurisdictions have

acknowledged similar duties owed to student athletes. See Avila v. Citrus Cmty.

Coll. Dist., 131 P.3d 383, 392 (Cal. 2006) (“[I]n interscholastic and intercollegiate

competition, the host school and its agents owe a duty to home and visiting players

alike to, at a minimum, not increase the risks inherent in the sport.”); Kleinknecht

v. Gettysburg Coll., 989 F.2d 1360, 1370 (3d Cir. 1993) (college owed duty to

recruited athlete to take reasonable safety precautions against the risk of death); see

also Jarreau v. Orleans Parrish Sch. Bd., 600 So. 2d 1389, 1393 (La. Ct. App.

1992) (school board owed duty to injured high school athlete to provide access to

medical treatment); Stineman v. Fontbonne Coll., 664 F.2d 1082, 1086 (8th Cir.

1981) (college owed duty to provide medical assistance to injured student athlete).


                                        - 10 -
      In this case, Abel was a student who was injured while he participated in a

school-sponsored soccer game under the supervision of school officials.

Therefore, we conclude that Respondent owed Abel a duty of supervision and to

act with reasonable care under the circumstances; specifically, Respondent owed

Abel a duty to take appropriate post-injury efforts to avoid or mitigate further

aggravation of his injury. See Rupp, 417 So. 2d at 666; Leahy, 450 So. 2d at 885.

“Reasonable care under the circumstances” is a standard that may fluctuate with

time, the student’s age and activity, the extent of the injury, the available

responder(s), and other facts. Advancements with technology and equipment

available today, such as a portable AED, to treat an injury were most probably

unavailable twenty years ago, and may be obsolete twenty years from now. We

therefore leave it to the jury to determine, under the evidence presented, whether

the particular actions of Respondent’s employees satisfied or breached the duty of

reasonable care owed.

      For several reasons, we reject the decision of the Second District to narrowly

frame the issue as whether Respondent had a specified duty to diagnose the need

for or use an AED on Abel. First, as stated above, reasonable care under the

circumstances is not and should not be a fixed concept. Such a narrow definition

of duty, a purely legal question, slides too easily into breach, a factual matter for

the jury. See McCain, 593 So. 2d at 502-04. We reject the attempt below to


                                         - 11 -
specifically define each element in the scope of the duty as a matter of law, as this

case attempted to remove all factual elements from the law and digitalize every

aspect of human conduct. We are also cognizant of the concern raised by

Respondent and its amici that if a defined duty could require every high school to

provide an AED at every athletic practice and contest, the result could be great

expense. Instead, the flexible nature of reasonable care delineated here can be

evaluated on a case by case basis. The duty does not change with regard to using

reasonable care to supervise and assist students, but the methods and means of

fulfilling that duty will depend on the circumstances.

      Additionally, we reject the position of the Second District and Respondent

that L.A. Fitness governs this case. The Fourth District in L.A. Fitness determined

that the duty owed by a commercial health club to an adult customer only required

employees of the club to reasonably summon emergency responders for a patron in

cardiac distress. 980 So. 2d at 562; see also De La Flor v. Ritz-Carlton Hotel Co.,

930 F. Supp. 2d 1325, 1330 (S.D. Fla. 2013) (citing L.A. Fitness, 980 So. 2d at

562). The adult customer and the health club stand in a far different relationship

than a student involved in school activities with school board officials. Although

some courts in other jurisdictions have determined that fitness clubs and other




                                        - 12 -
commercial entities do not owe a legal duty to provide AEDs to adult customers,6

the commercial context and relationship of parties in these cases is a critical

distinction from the case before us. Despite the fact the business proprietor-

customer and school district-student relationships are both recognized as

relationships, these relationships are markedly different. We initially note that the

proprietor-customer relationship most frequently involves two adult parties,

whereas the school-student relationship usually involves a minor. Furthermore, the

business invitee freely enters into a commercial relationship with the proprietor.

      By contrast, Florida, along with the rest of the country, has mandated

education of our minor children. § 1003.21, Fla. Stat. (2014). Compulsory

schooling creates a unique relationship, a fact that has been recognized both by

Florida courts and the Florida Legislature. Florida common law recognizes a

specific duty of supervision owed to students and a duty to aid students that is not



       6. See, e.g., Verdugo v. Target Corp., 327 P.3d 774, 792 (Cal. 2014)
(holding that a retailer did not owe a common law duty to acquire and make
available an AED to a patron); Miglino v. Bally Total Fitness of Greater N.Y., Inc.,
985 N.E.2d 128, 132 (N.Y. 2013) (statute that required large health clubs to
acquire an AED did not impose duty to use it); Rotolo v. San Jose Sports &
Entm’t, LLC, 59 Cal. Rptr. 3d 770, 774-75 (Cal. Ct. App. 2007) (refusing to
impose a duty on owners of a sports facility to notify patrons of the existence and
location of an AED), modified on other grounds by Verdugo, 327 P.3d at 784;
Salte v. YMCA of Metro. Chi. Found., 814 N.E.2d 610, 615 (Ill. App. Ct. 2004)
(holding that a health club’s duty of reasonable care to its guests did not require it
to obtain and use an AED on a guest).



                                        - 13 -
otherwise owed to the business customer. See Rupp, 417 So. 2d at 666-67.

Furthermore, the Florida Legislature has specifically mandated that high schools

that participate in interscholastic athletics acquire an AED and train appropriate

personnel in its use. § 1006.165(1)-(2), Fla. Stat. Notably, the Legislature has not

so regulated health clubs or other commercial facilities, even though the

foreseeability for the need to use an AED may be similar in both contexts. See

L.A. Fitness, 980 So. 2d at 561. The relationship between a commercial entity and

its patron quite simply cannot be compared to that between a school and its

students. We therefore conclude that the facts of this case are not comparable to

those in L.A. Fitness.

                              Other Sources of Duty

      Although Petitioners alleged in their pleadings that Respondent owed a

statutory duty under section 1006.165, Florida Statutes, Petitioners did not clearly

articulate before this Court the basis for such a duty. We therefore do not address

it here. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004).

Moreover, because we decide as a dispositive issue that Respondent’s motion for

summary judgment was improperly granted because Respondent owed a common

law duty to Abel, we decline to address Petitioners’ claim under the undertaker’s

doctrine.

                                    Immunity


                                        - 14 -
      Because we conclude that Respondent owed a common law duty to Abel, we

must now consider whether Respondent is immune from suit under sections

1006.165 and 768.1325, Florida Statutes. See Wallace v. Dean, 3 So. 3d 1035,

1044 (Fla. 2009) (emphasizing that the existence of a duty is “conceptually

distinct” from the determination of whether a party is entitled to immunity).

Respondent claims that these statutory provisions grant it immunity. The question

of statutory immunity is a legal question that we review de novo. See, e.g., Found.

Health v. Westside EKG Assocs., 944 So. 2d 188, 193-94 (Fla. 2006).

      Section 1006.165 requires all public schools that are members of the Florida

High School Athletic Association to have an operational AED on school property

and to train “all employees or volunteers who are reasonably expected to use the

device” in its application. § 1006.165(1)-(2), Fla. Stat. Further, “[t]he use of

[AEDs] by employees and volunteers is covered under [sections] 768.13 and

768.1325,” which generally regulate immunity under Florida’s Good Samaritan

Act and the Cardiac Arrest Survival Act. § 1006.165(4).7 Subsection (3) of the

Cardiac Arrest Survival Act states:




       7. Although section 1006.165 references both the Good Samaritan Act,
section 768.13, and the Cardiac Arrest Survival Act, section 768.1325, Respondent
seeks immunity only under the Cardiac Arrest Survival Act. We therefore do not
consider whether the Good Samaritan Act provides immunity under these
circumstances. See, e.g., Chamberlain, 881 So. 2d at 1103.


                                        - 15 -
             Notwithstanding any other provision of law to the contrary, and
      except as provided in subsection (4), any person who uses or attempts
      to use an [AED] on a victim of a perceived medical emergency,
      without objection of the victim of the perceived medical emergency,
      is immune from civil liability for any harm resulting from the use or
      attempted use of such device. In addition, notwithstanding any other
      provision of law to the contrary, and except as provided in subsection
      (4), any person who acquired the device and makes it available for
      use, including, but not limited to, a community organization . . . is
      immune from such liability . . . .

§ 768.1325(3), Fla. Stat. (emphasis supplied). There is no immunity for criminal

misuse, gross negligence, or similarly egregious misuse of an AED. §

768.1325(4)(a).

      Under a plain reading of the statute, this subsection creates two classes of

parties that may be immune from liability arising from the misuse of AEDs: users

(actual or attempted), and acquirers. Users are clearly “immune from civil liability

for any harm resulting from the use or attempted use” of an AED. § 768.1325(3),

Fla. Stat. Additionally, acquirers are immune from “such liability,” meaning the

“liability for any harm resulting from the use or attempted use” referenced in the

prior sentence. Id. (emphasis supplied). Thus, acquirers are not immune due to the

mere fact that they have purchased and made available an AED which has not been

used; rather, they are entitled to immunity from the harm that may result only when

an AED is actually used or attempted to be used. It is undisputed that no actual or

attempted use of an AED occurred in this case until emergency responders arrived.




                                       - 16 -
Therefore, we hold that Respondent is not entitled to immunity under section

768.1325 and such section has absolutely no application here.

      Despite the protests of Respondent and its amici, we do not believe that this

straightforward reading of the statute defeats the legislative intent. The passage of

section 1006.165 demonstrates that the Legislature was clearly concerned about the

risk of cardiac arrest among high school athletes. The Legislature also explicitly

linked this statute to the Cardiac Arrest Survival Act, which grants immunity for

the use—actual or attempted—of an AED. The emphasis on the use or attempted

use of an AED in the statute underscores the intent of the Legislature to encourage

bystanders to use a potentially life-saving AED when appropriate. Without this

grant of immunity, bystanders would arguably be more likely to hesitate to use an

AED for fear of potential liability. To extend the shield of immunity to those who

make no attempt to use an AED would defeat the intended purpose of the statute

and discourage the use of AEDs in emergency situations. The argument that

immunity applies when an AED is not used is spurious. The immunity is with

regard to harm caused by the use of an AED, not a failure to otherwise use

reasonable care.

                                  CONCLUSION

      We hold that Respondent owed a common law duty to supervise Abel, and

that once injured, Respondent owed a duty to take reasonable measures and come


                                        - 17 -
to his aid to prevent aggravation of his injury. It is a matter for the jury to

determine under the evidence whether Respondent’s actions breached that duty and

resulted in the damage that Abel suffered. We further hold Respondent is not

entitled to immunity from suit under section 768.1325, Florida Statutes. We

therefore quash the decision below and remand this case for trial.

      It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

      Because I conclude that the decision of the district court of appeal, Limones

v. School District of Lee County, 111 So. 3d 901 (Fla. 2d DCA 2013), does not

expressly and directly conflict with McCain v. Florida Power Corp., 593 So. 2d

500 (Fla. 1992), I would dismiss review of this case for lack of jurisdiction under

article V, section 3(b)(3), of the Florida Constitution. I therefore dissent.

      In McCain, the plaintiff was injured when the blade of a trencher he was

operating made contact with an underground electrical cable owned by Florida

Power Corporation. The Court held that because cables transmitting electricity had

“unquestioned power to kill or maim,” the defendant had created a “foreseeable

zone of risk” and therefore, as a matter of law, had a duty to take reasonable


                                         - 18 -
precautions to prevent injury to others. McCain, 593 So. 2d at 503-04. In

Limones, the district court of appeal held as a matter of law that a school district

“had no common law duty to make available, diagnose the need for, or use” an

automated external defibrillator on a student athlete who “collapsed on the field . . .

stopped breathing and had no discernible pulse” during a high school soccer match.

Limones, 111 So. 3d at 903, 906. The two decisions are clearly distinguishable

based on their totally different facts. Therefore, there is no express and direct

conflict and we lack jurisdiction to review the district court’s decision.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Second District - Case No. 2D11-5191

      (Lee County)

David Charles Rash of David C. Rash, P.A., Weston, Florida, and Elizabeth
Koebel Russo of Russo Appellate Firm, P.A., Miami, Florida,

      for Petitioners

Traci McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, Florida,
and Scott Andrew Beatty of Henderson, Franklin, Starnes & Holt, P.A., Bonita
Springs, Florida,

      for Respondents

Jennifer Suzanne Blohm and Ronald Gustav Meyer of Meyer, Brooks, Demma and
Blohm, P.A., Tallahassee, Florida,

      for Amicus Curiae Florida School Boards Association, Inc.

                                        - 19 -
Leonard E. Ireland, Jr., Gainesville, Florida,

      for Amicus Curiae Florida High School Athletic Association, Inc.

Mark Miller and Christina Marie Martin, Pacific Legal Foundation, Palm Beach
Gardens, Florida,

      for Amicus Curiae Pacific Legal Foundation




                                        - 20 -
