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ARTICLE ID 4212

$________ GROSS Failure to guard against dangerous batting machine - Hand injury to minor plaintiff - 75% comparative negligence assessed against plaintiff father.

Pinellas County

This action was brought by the plaintiff parents individually and on behalf of their minor daughter, age 2.5 at the time of injury, against the defendant restaurant on a premises liability theory. The plaintiffs claimed that the defendant allowed a dangerous condition on the premises in the form of a batting machine and failed to warn of the condition. The minor plaintiff placed her hand inside the pitching hole of the machine, sustaining an injury to her hand. The defendant denied that the batting machine was dangerous and argued that the accident resulted from failure of the little girl’s father to properly supervise the child.

The minor plaintiff and her father were inside a batting cage in the defendant’s restaurant when the little girl walked up a ramp to the batting machine. The machine included a picture of a pitcher with a hole where the pitcher’s hand would be. The minor plaintiff put her hand inside the pitching hole and was injured by rotating tires inside the machine. The plaintiff contended that the machine, in the defendant’s restaurant which catered to children, was dangerous and should have been screened for safety. The plaintiff also alleged that the defendant failed to warn that the machine could cause injury in an environment that was thought to be safe for children. The defendant’s representative admitted that parties attended by numerous children are sometimes supervised by only one or two parents.

The minor plaintiff sustained an injury which stripped the skin from approximately one-third of back of her hand. The plaintiff exhibited a hypo-pigmented scar which she claimed would not tan the same as her skin.

The defendant denied that the batting machine was dangerous and argued that no prior injuries involving the machine had been reported and the defendant had no notice of any danger associated with it. Evidence showed that the minor plaintiff’s father was in the batting cage when the accident occurred and had put a token in the machine and allowed the girl into the cage while it was activated. The defense pointed to a sign posted in front of the defendant’s restaurant which required that children under 21 be accompanied by an adult. The defendant also argued that the minor plaintiff’s scar was barely visible at trial, she suffered no functional disability of the injured hand and required no further medical care.

The jury found the defendant 25% negligent and the plaintiff’s father 75% comparatively negligent. The plaintiff was awarded $________ which was reduced to $________ based on the recent Supreme Court ruling in the Godales case which imputes parental negligence to a minor plaintiff.

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