       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

VALERIY BOGATOV, as Father and Representative of ALEX BOGATOV,
                         Appellant,

                                     v.

CITY OF HALLANDALE BEACH and KIDZ ZONE PLAYSYSTEMS, INC.,
                       Appellees.

                              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).

  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).



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   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 reports 1 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

1 A 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.

2 As 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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      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.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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