Sparks v. Ober

• Decision Date: 22 November 1966
• Docket Number: No. 65--1012,65--1012
• Citation: 192 So.2d 81
• Parties: Lula Mae SPARKS, as Administratrix of the Estate of Clifford Sparks, Deceased, and Luia Mae Sparks, as the widow of Clifford Sparks, Deceased, Appellant, v. Samuel OBER and Mary E. Ober, a/k/a M. E. Ober, Appellees.
• Court: Florida District Court of Appeals

Page 81

192 So.2d 81

Lula Mae SPARKS, as Administratrix of the Estate of Clifford Sparks, Deceased, and Luia Mae Sparks, as the widow of Clifford Sparks, Deceased, Appellant, v. Samuel OBER and Mary E. Ober, a/k/a M. E. Ober, Appellees.

No. 65--1012.

District Court of Appeal of Florida, Third District.

Nov. 22, 1966.

Kelner & Lewis and Alan H. Dombrowsky, Miami, for appellant.

Dubbin, Schiff, Berkman & Dubbin, Miami, for appellees.

Before HENDRY, C.J., and CARROLL and SWANN, JJ.

CARROLL, Judge.

This is an action for damages charging the appellees with negligence resulting in the death of one Clifford Sparks, brought by his widow Lula Mae Sparks under the wrongful death act (§§ 768.01 and 768.02 Fla.Stat., F.S.A.), and by her as administratrix under the survival act (§ 45.11 Fla.Stat., F.S.A.). The trial court dismissed the amended complaint with prejudice on defendants' motion and plaintiff appealed.

The amended complaint alleged that the appellees, defendants below, owned and operated a tavern and bar which at the time involved was in charge of their employed bartender assisted by a barmaid; that Clifford Sparks was there as a customer, at approximately 5:30 o'clock P.M. on a stated day; that two of the other customers, George Cox and Thomas Walker, became embroiled in an argument in the course of which Walker exhibited a knife; that thereupon Cox departed, announcing 'that he was going to go to his home and get his shotgun and immediately return to shoot Thomas Walker,' and that such statement by Cox was made within the hearing of the bartender and the barmaid but not within the hearing of the customer Clifford Sparks; that approximately ten minutes later Cox returned and entered with a shotgun, which he discharged in the direction of Walker, the charge therefrom striking and fatally wounding Sparks. The negligence alleged in the amended complaint was failure of the bartender to warn the patrons, including Sparks, of the impending danger or to take other preventive or protective action in the matter. Specifically, plaintiff alleged defendants' employees were negligent by failing to (1) call the police, (2) warn patrons, including Sparks, of the impending affray, (3) bar re-entry by Cox when he returned with a shotgun, as he had announced he would, (4) eject Walker from the premises when he exhibited a weapon (knife) in the initial altercation with Cox, (5) conduct the patrons to a place of safety, having 'elected to allow the premises to become a battleground,' (6) prohibit patrons from using the premises while armed with deadly weapons, and (7) 'comply with Florida Statutes and applicable ordinances prohibiting dueling, public affrays, and use of deadly weapons.'

Clifford Sparks was business invitee, to whom the owners through their employees who were in charge of the premise owed a duty commensurate with his status. The duty to a business invitee was defined by the Supreme Court in McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187, as follows:

'The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen. First Federal Sav. & Loan Ass'n v. Wylie, Fla.1950, 46 So.2d 396 and Messner v. Webb's City, Inc., Fla.1952, 62 So.2d 66.'

A tavern and bar may be likened to a place of amusement to which the public is invited. As to such places, the owner or proprietor is not an insurer of the safety of his patrons, but must exercise due care to maintain the...