Adair v. The Island Club

• Decision Date: 01 August 1969
• Docket Number: No. 68--367,68--367
• Citation: 225 So.2d 541
• Parties: Raymond L. ADAIR, Appellant, v. THE ISLAND CLUB, St. Petersburg Beach, Florida, Inc., a corporation; Jones Chemical, Inc., a corporation, and Sun Sanitary Supplies, Inc., a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 541

225 So.2d 541

Raymond L. ADAIR, Appellant, v. THE ISLAND CLUB, St. Petersburg Beach, Florida, Inc., a corporation; Jones Chemical, Inc., a corporation, and Sun Sanitary Supplies, Inc., a corporation, Appellees.

No. 68--367.

District Court of Appeal of Florida, Second District.

Aug. 1, 1969.

Thomas C. Marks, Jr., of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellant.

Ross H. Stanton, Jr., of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellee The Island Club.

Marvin E. Barkin, of Fowler, White, Collins, Gillen, Humkey & Trenam, Tampa, for appellee Jones Chemical, Inc.

Robert L. Williams, of Williams, Woodworth & Jacobs, St. Petersburg, for appellee Sun Sanitary Supplies, Inc.

PIERCE, Judge.

Raymond L. Adair, plaintiff below, appeals the dismissal of his second amended complaint against The Island Club, Jones Chemical, Inc. and Sun Sanitary Supplies, Inc., defendants below. Adair elected not to plead further and moved the Court to enter order of dismissal With prejudice, which was done.

The order of dismissal stated that the pleadings affirmatively disclosed: that (1) plaintiff Adair, acting in his capacity as a member of the local Police Department and in line of his duty, was directed to the premises of The Island Club to assist persons suffering from exposure to the chlorine gas in question; (2) that Adair was a licensee in relation to the defendants and the complaint failed to allege sufficient facts to show a breach of duty between defendants and the plaintiff; (3) that the plaintiff and his activity fell beyond the foreseeability test; and (4) that the complaint failed to show a relationship between Adair and the defendants which would legally entitle him to the benefit of any alleged implied warranty.

The facts, as set forth in the second amended complaint, are as follows: On July 14, 1964, a large quantity of gas escaped from one or more bottles or containers in the swimming pool on Island Club's premises. The chlorine gas was supplied to Island Club by the defendant, Jones. The bottles or containers of the gas were delivered to Island Club by the defendant, Sun, pursuant to its arrangement or contract with Jones. Soon after the escape of the gas, Adair, a member of the St. Petersburg Beach Police Department, in his official capacity, being on duty at the time, was directed to the premises of Island Club 'for the purpose of rendering aid to the distressed individuals and to make the area safer for use.' While he was there the manager of Island Club asked Adair to aid in removing the chlorine tank which had become dislodged from where it had been placed under water by emergency officials and was hitting against the seawall. The manager provided Adair with a gas mask. As Adair took the tank out to deeper water he inhaled a large quantity of gas from which he allegedly suffered injury.

The negligence and breach of warranty charged was (1) the alleged negligence of Island Club in failing to discover and remedy the defective and leaky condition of the chlorine gas containers, and with furnishing Adair a defective gas mask; and the alleged breach of warranty by Island Club that the mask was suitable for the job required; (2) the alleged negligence of Jones in having caused to be delivered to the premises defective containers of chlorine gas and the defective gas mask; and the alleged breach of warranty of Jones that the containers of chlorine gas and the mask were in safe and suitable condition for their intended purpose; (3) the alleged negligence of Sun in damaging the containers of chlorine gas that it was delivering from Jones to Island Club or in failing to discover and give notice that the containers were defective; and the alleged breach of warranty that Sun would safely transport the containers of chlorine gas.

Adair contends that at the time the manager of the Island Club suggested that he rid the area of the escaping gas by the removal of the container his duties as a city policeman had been completed and that his legal status was changed from a licensee to a business invitee. He quotes from Romedy v. Johnston, Fla.App.1967, 193 So.2d 487, where the Court said:

'The position taken by appellant (that firemen should be implied invitees) has been considered and passed on by other courts in cases similar to the one now before us for review. This contention has been rejected for the reason that firemen, in the performance of their duties in attempting to extinguish fires and preserve property, enter upon the premises of others By permission of law and not at the invitation of the owner.' (Emphasis supplied).

and asserts that when the manager of the Island Club invited him to remain on the premises and remove the tank, his status changed to that of business invitee.

We do not think that Romedy sustains his position. His complaint alleged that 'as a portion of his duties (he) was obligated to and did make calls in response to emergencies for the purpose of rendering first aid, among other things, and making premises, dangerous at the time, safe or more safe from the problems which then existed.' His duties as a policeman had not been completed until the emergency was over and the premises rendered 'safe or more safe.' He therefore remained a licensee as to The Island Club, and the duty owed to him by the owner of the premises was to refrain from wanton negligence or willful conduct which would injure him and to warn him of any defect or condition known to defendant to be dangerous if such danger was not open to ordinary observation by plaintiff. In Romedy v. Johnston, supra, the Court said:

'It is an established rule of law in this jurisdiction that the owner of premises owes to a licensee the duty to refrain from wanton negligence or willful misconduct which would injure the licensee. It is also held that if the owner has knowledge of pitfalls, booby traps, latent hazards, or other similar dangers, than a failure to warn such licensee could under proper circumstances amount to wanton negligence, but there must be knowledge of the danger by the owner combined with knowledge that the licensee is about to be confronted with the danger.'

See McNulty v. Hurley, Fla.1957, 97 So.2d 185; City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644.

Adair failed to allege whether the defect in the gas mask was latent or obvious, or whether Adair knew of the condition of the mask or by the exercise of due care could have known of its condition, or whether the manager of The Island Club knew that the mask was defective. He merely alleged that '(t)he gas mask offered for use was defective and did leak, which condition such defendant knew or should have known upon reasonable examination or inspection, yet it negligently failed to do the same.' The second amended complaint, failing to allege wanton negligence or willful conduct on the part of the defendant, The Island Club, was properly dismissed as to that defendant.

While some other jurisdictions take the opposite view, Florida has held in the case of Florida Power & Light Co. v. Bridgeman, 1938, 133 Fla. 195, 182 So. 911, 917, that an electric company is not relieved of duty to an injured person just because the path on which she was walking may have been on private land of a third party. The Court quoted from 20 C.J. 350 (See 29 C.J.S., Electricity, § 43, Licensees and Trespassers):

"The doctrine of nonliability to trespassers or licensees has been applied to relieve defendant of liability where the trespass or license was with respect to the property of a third person and not that of the defendant. But according to the apparent weight of authority that doctrine has no application to such class of cases, because conceding that plaintiff was trespasser as to the owner, he was not a trespasser as to the defendant, and the defendant may be held liable for negligence in failing to exercise proper care and precaution to prevent injury, not only as to persons who had a right to be at the place where the injury occurred, but also to persons whom defendant should reasonably have anticipated might be present and exposed to danger at that place, as in the case of places to which children or other persons are accustomed to resort although without technical right to be at such places."

The Court held that the electric company owed Mrs. Bridgeman the duty of not negligently causing her death, 'and that the electric company was charged with a high degree of care in handling of its dangerous business of transmission of electricity is well settled.'

In Baker v. Thompson-Hayward Chemical Company, Mo.App.1958, 316 S.W.2d 652, the Kansas City Court of Appeal said that 'the release of a poisonous gas at a place where people are or have the right to be, would create a dangerous and an unsafe condition as a matter of law,' and defined chlorine as:

'Webster's New International Dictionary, Second Edition, defines 'chlorine' as 'a heavy greenish-yellow irritating gas of disagreeable odor. When inhaled in quantity, it is poisonous. * * * It is an essential ingredient of most war gases.' The same definitions and conclusions are recognized in medical treatises such as Legal Medicine Pathology and Toxicology, Gonzales et al., page 717, and Dorland's Medical Dictionary.'

See also May v. Allied Chlorine & Chemical Products, Inc., Fla.App.1964, 168 So.2d 784.

Chlorine is an inherently dangerous commodity and, as stated in Tampa Drug Company v. Wait, Fla.1958, 103 So.2d 603, 75 A.L.R.2d 765:

'The measure of the duty of the distributor of an inherently dangerous commodity is now well established to be the reasonable foreseeability of injury that might result from the use of the comodity.'

The lower Court held that the second amended complaint affirmatively shows that Adair and his activity on the date in question fall beyond the foreseeability test applicable...