Brais Law Obtains Summary Judgment on the Open and Obvious Defense in a Severed Finger Lawsuit
Our Miami personal injury attorneys are currently representing a college student who was severely injured when a kinetic horse sculpture’s head rotated down on his right middle finger pitching it between the sculpture’s head and neck. On April 4, 2014, our client, his mother and cousin was visiting the Kenneth Meyers Park located in the Coconut Grove section of Miami. It was the first time they visited the park. Near the front of the park stood two brightly colored animal sculptures created by Fredrick Prescott. One was of a giraffe and the other the horse. Our client’s cousin, who is fond of giraffes, wanted to get closer have her photo taken with the sculpture. Since there were no signs stating not to touch the sculptures or any barrier erected around the sculptures, the family thought it was safe to touch the sculptures who having their pictures taken. While the cousin was interacting with the giraffe, our client’s mother suggested that he imitate petting the horse for a photograph. As our client reached up and placed his hand on the bottom of the horse’s head, the head swung down pinching his middle finger against the horse’s neck. The scissoring action of the horse’s head with the neck severed a portion of the young man’s right middle finger.
It was later discovered that the two animals were kinetic sculptures whose heads were designed to sway in the wind. Unfortunately, on the day of the incident, there was no wind and the heads remained static until our client touched the underside of the horse’s head. Given there was no warning signs or barriers, the family was unaware that the heads of the sculptures moved.
Our law firm brought a lawsuit against artist who designed and assembled the sculpture alleging he was negligent for failing to incorporate finger guards or at least providing labels on the sculptures warning people that parts move and to not touch the sculptures. We also brought a lawsuit against the City of Miami alleging it was negligent for failing to place warning signs or barriers to access so that a reasonable person would know not to touch the sculpture. The artist and City responded to the lawsuit denying their negligence and asserting, among other things, that they should not be held liable because the hazard was open and obvious.
As the case was proceeding, the artist filed a Motion for Summary Judgment arguing that he should be found not liable as a matter of law because his duty to our client ended the moment the sculpture was sold and placed in the City park. Our attorneys countered the motion by arguing that under Florida products liability law, “[a] manufacturer is under a duty to use reasonable care to design a product that is reasonably safe for its intended use and for other uses which are foreseeably probable” and “[u]nless the danger is obvious or known, a manufacturer has a duty to warn where its product is inherently dangerous or has dangerous propensities.” The Court rejected the artist’s argument and allowed the case to be presented to a jury.
Our lawyers also filed a Motion for Summary Judgment attacking the artist’s and City’s open and obvious defense. We argued that the undisputed evidence establishes that the hazard was not open and obvious to our client because, 1. he never visited the park before and did not know the heads moved, 2. wind is needed to move the sculpture’s head, and 3. on the day he visited the park there was no wind and the head was not moving. The Court agreed with our argument and entered summary judgment in our client’s favor as to the artist’s and City’s open and obvious defense.
In an effort to better serve our client, if you are aware of other instances wherein someone was injured involving a kinetic sculpture, please contact our law firm.