Philip J. Fairman (Fort Myers, FL) (Governmental Law) obtained a Final Summary Judgment in Lee County, Florida. The Plaintiff claimed that the child suffered a traumatic brain injury, blurry vision, loss of memory, neck pain and psychological trauma from two separate incidents. The first incident occurred on November 4, 2021 at an after-school program when the child tried to simultaneously exit a playground gate with several other children and a bottle neck at the gate caused the child to fall to the ground. The second incident occurred on January 5, 2022 at the same after-school program when the child was racing another child her age and the two children collided, with the child falling face first onto a concrete sidewalk. The Plaintiff alleged negligent supervision by the School District in both instances.
The Plaintiff alleged in her Amended Complaint that she complied with the pre-suit notice requirements of Florida Statutes § 768.28 by attaching to her Amended Complaint letters dated January 11, 2022, and May 25, 2022. The January 11, 2022, pre-suit notice letter was determined to be invalid at the hearing on the School District’s Motion to Dismiss, however the court determined that the May 25, 22022, letter survived the Motion to Dismiss. At the conclusion of discovery, the School District served its Motion for Summary Judgment and asserted consistent with the School District’s Risk Manager’s affidavit and deposition testimony that the May 25, 2022 letter was never received. Plaintiff’s counsel did not file a response to the School District’s Motion for Summary Judgment within the forty day time period to respond. Instead, thirty (30) days after the forty-daytime period to respond had expired Plaintiff’s counsel filed a Motion for Extension of Time and Supporting Documents. In that response, Plaintiff’s counsel attached a third pre-suit notice letter dated May 19, 2022.
At the hearing on the School District’s Motion for Summary Judgment, the School District argued Plaintiff was unable to produce a green mailing card showing receipt in hand by the School District of the May 25, 2022, pre-suit notice. The trial court agreed with the School District’s argument and granted Summary Judgment with respect to the May 25, 2022, pre-suit letter.
The trial court next addressed the May 19, 2022 letter which appeared for the first time in the Plaintiff’s untimely response to the School District’s Motion for Summary Judgment. The School District argued that the Court was required to ignore all facts and exhibits in Plaintiff’s response because the response was untimely. The School District also argued the May 19, 2022,2 letter failed as notice under Florida Statutes § 768.28 because the Plaintiff never alleged in her Amended Complaint that the May 19, 2022 letter was sent to the School District as a pre suit notice nor was it attached to the Amended Complaint as an exhibit. Lastly the School District argued the May 19, 2022, failed as notice under Florida Statutes § 768.28 because it did not threaten a civil suit or include a demand for compensation. The court agreed with all of the School District’s arguments and held the School District was also entitled to Summary Judgment as to the May 19, 2022, pre suit letter.
Early in the litigation, the School District filed a Proposal for Settlement and in the Order granting Final Summary Judgment, the court reserved jurisdiction to consider attorneys’ fees and costs.