Adler v. Copeland

• Decision Date: 14 October 1958
• Docket Number: No. 57-459,57-459
• Citation: 105 So.2d 594
• Parties: Marie ADLER, Appellant, v. Mr. and Mrs. H. S. COPELAND, Jr., Appellees.
• Court: Florida District Court of Appeals

Page 594

105 So.2d 594

Marie ADLER, Appellant, v. Mr. and Mrs. H. S. COPELAND, Jr., Appellees.

No. 57-459.

District Court of Appeal of Florida, Third District.

Oct. 14, 1958.

Franklyn Levenson and Richard E. Thomas, Miami, for appellant.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellees.

HORTON, Judge.

The appellant was the plaintiff and the appellees the defendants in the court below. This is an action for wrongful death in which a judgment of involuntary non-suit was taken by the plaintiff after the trial judge indicated his intention to direct a verdict. The plaintiff has prosecuted this appeal in accordance with § 59.05, Fla.Stat., F.S.A. The scope of this review is similar to that of a review of a judgment entered after a directed verdict.

The plaintiff, Marie Adler, was unable to support her two children and had a welfare agency place them in a foster home in the Copeland neighborhood. The two children, Connie, aged 5, and David, aged 4, became acquainted with the Copeland children and frequently played with them. On the day of this tragedy, the two Adler children and two of the Copeland children entered the defendant's back yard. The yard was fenced so that access was had by one of two gates. On the day in question, only one of the gates was locked. Located within the Copeland back yard was a swimming pool and various playground equipment. Mrs. Copeland testified that she was aware of the presence of the children in the back yard and had given them a toy to play with at their request. After the children had been in the yard about half an hour, Mrs. Copeland announced that she was going to visit a neighbor and instructed the children not go near the pool. Upon her return, approximately thirty minutes later, Mrs. Copeland found the body of Connie Adler floating in the pool. No evidence was offered to explain how the fatal drowning occurred.

At the conclusion of the plaintiff's case, and upon motion of the defendants for directed verdict, the trial judge inquired if counsel for the plaintiff was relying upon the doctrine of attractive nuisance. At that time, the plaintiff's counsel specifically denied that he was proceeding under that theory. The trial judge then announced his intention to direct a verdict based upon his conclusion that the deceased was merely a trespasser on the defendant's property.

Although the plaintiff had renounced her reliance on the attractive nuisance doctrine in the court below, on appeal she now contends that the swimming pool did constitute an attractive nuisance. The doctrine of attractive nuisance, as developed by decisions in Florida, is succinctly stated in Howard v. Atlantic Coast Line Railroad Company, 5 Cir., 231 F.2d 592, 593:

'* * * (U)nder Florida law the general rule is that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally. Lomas v. West Palm Beach Water Co., Fla., 57 So.2d 881; Newby v. West Palm Beach Water Co., Fla., 47 So.2d 527; Allen v. William P. McDonald Corp., Fla., 42 So.2d 706.'

In the instant case, there was nothing shown that constituted a trap or latent danger. Swimming pools are fairly common in South florida and they normally present no hidden danger as far as their construction is concerned. As was further said in Howard v. Atlantic Coast Line Railroad Company, supra:

'It can hardly be argued that steep banks are not found in natural bodies of water, nor that even greater dangers, such as holes wherein a wading child might fall, do not threaten young children who swim in them. Nor can we sustain the view that there is anything hidden about a straight sided pool.'

This is not analogous to the facts which were presented to us is Ansin v. Thurston, Fla.App., 1957, 98 So.2d 87 and Larnel Builders, Inc., v. Martin, Fla.App., 105 So.2d 580, wherein we held the nature of certain banks along artificial bodies of water constituted a trap to an immature child.

Lacking the application of the attractive nuisance doctrine, which is an exception to the rule of nonliability to infant trespassers, the plaintiff must rest her case on the relationship created between the landowner and the deceased child...