101 So.2d 808 (Fla. 1958), Ansin v. Thurston

Citation:101 So.2d 808
Opinion Judge:Author: Drew
Party Name:S. ANSIN, Petitioner, v. Ralph L. THURSTON, Respondent. S. ANSIN, Petitioner, v. Ralph L. THURSTON, as Administrator of the Estate of Ralph L. Thurston, Jr., deceased minor, Respondent.
Attorney:Blackwell, Walker & Gray, Miami, for petitioner.
Case Date:March 26, 1958
Court:Supreme Court of Florida
 
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Page 808

101 So.2d 808 (Fla. 1958)

S. ANSIN, Petitioner,

v.

Ralph L. THURSTON, Respondent.

S. ANSIN, Petitioner,

v.

Ralph L. THURSTON, as Administrator of the Estate of Ralph L. Thurston, Jr., deceased minor, Respondent.

Supreme Court of Florida.

March 26, 1958

Rehearing Denied April 12, 1958.

Page 809

Blackwell, Walker & Gray, Miami, for petitioner.

Nichols, Gaither, Green, Frates & Beckham and Sam Daniels, Miami, for respondent.

DREW, Justice.

The petitioner, defendant in the trial court, seeks review by certiorari of a decision of the District Court of Appeal, Third District, by which certain judgments against him in tort actions for negligence were affirmed.

The only point presented in the appeal below was the alleged error of the trial court in denying defendant's motion for directed verdict on the issue of liability. The actions against him, both arising out of the same circumstances, were by the respondent individually and as administrator of the estate of his minor son, who died by drowning in a 'rockpit' on land owned by defendant. In each case the cause of action was dependent upon proof of facts sufficient to come within the doctrine of tort

Page 810

liability usually referred to as attractive nuisance.

It was the opinion of the district court that the facts alleged and proved, details of which appear fully in the published report of the case in that court, were sufficient to present a jury question under the rule enunciated in the case of Allen v. William P. McDonald Corporation, Fla., 42 So.2d 706, to the effect that the maintenance of an artificial body of water where there exists some unusual element of danger not present in ponds or natural bodies of water generally may constitute actionable negligence supporting recovery for injury or death by drowning of a minor child upon the theory noted above.

The petition herein is necessarily prosecuted under that portion of amended Article V, Section 4(b), (4(2), F.S.1957) of the Florida Constitution, F.S.A., authorizing review by certiorari in this Court of 'any decision of a district court of appeal * * * that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law * * *', and the corresponding provision of Rule 2.1, subd. a(5)(b) of the Florida Appellate Rules.

Petitioner contends that the decision below is...

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