Biltmore Terrace Associates v. Kegan, 60-391

• Court: Florida District Court of Appeals
• Writing for the Court: PEARSON; HORTON; MILLEDGE, STANLEY; MILLEDGE, STANLEY
• Citation: Biltmore Terrace Associates v. Kegan, 130 So.2d 631 (Fla. App. 1961)
• Decision Date: 29 May 1961
• Docket Number: No. 60-391,60-391
• Parties: BILTMORE TERRACE ASSOCIATES, Appellant, v. Lawrence KEGAN, a minor, by his father and next friend, Bernard M. S. Kegan and Bernard M. S. Kegan, individually, Appellees.

Page 631

130 So.2d 631

BILTMORE TERRACE ASSOCIATES, Appellant, v. Lawrence KEGAN, a minor, by his father and next friend, Bernard M. S. Kegan and Bernard M. S. Kegan, individually, Appellees.

No. 60-391.

District Court of Appeal of Florida, Third District.

May 29, 1961.

Gottardt, Christie & Shepard and Kenneth L. Ryskamp, Miami, for appellant.

Sams, Anderson, Alper, Meadows & Spencer, Miami, for appellees.

PEARSON, Judge.

The defendant, hotel, appeals a final judgment based upon a jury verdict in a negligence action brought by Lawrence Kegan, a minor, and Bernard Kegan, Lawrence's father. The plaintiff, Lawrence, was a guest in the defendant's hotel and was injured when he dived into the ocean from a walled patio-pool area, which, at the time of the accident, protruded into the water. The controlling questions are: (A) Whether the facts presented to the jury, viewed in the light most favorable to the plaintiffs and with the benefit to the plaintiffs of all reasonable inferences, established a prima facie case of negligence; (B) Whether under the facts presented by the evidence and with the benefit of all presumption and in the light most favorable to him, the plaintiff, Lawrence Kegan, was guilty of contributory negligence as a matter of law. We hold that negligence was not established and that the plaintiff was guilty of contributory negligence as a matter of law and reverse.

The negligence alleged in the complaint was '* * * carelessly * * * and negligently maintained, operated, or controlled the premises without keeping them in a reasonably safe condition.' The injured plaintiff, Lawrence Kegan, was a minor of fifteen, almost sixteen, and had been a guest of the hotel for some twelve days at the time of the accident. The defendant was the operator of an oceanfront, patio-pool resort hotel and as a part of its accommodations provided a patio-pool area between the front of the hotel and the ocean. This structure was located landward of the mean high water line, but the tides on occasion brought the water up to the wall and to a depth of several feet. The ocean side of the patio-pool area was enclosed by a wall, approximately four feet in height. The shore and the ocean are considerably lower in level than the patio-pool area. Beyond the wall was a short projection of the patio area, which sloped downward. In addition, two concrete beams extended easterly some four feet beyond the wall.

The plaintiff had been swimming for six years but prior to the day of his accident he had not gone to the end of the patio-pool area. On that day he slept until noon; after breakfast he met Tim Henderson, a friend, in the patio-pool area. Tim was also a guest of the hotel and both boys were on a vacation from out of state. On this day the pool was closed because of bad weather, and no lifeguard was on duty, nor was any other person of authority present to oversee the recreation area.

The plaintiff estimated that he talked with his friend for five or ten minutes while leaning against the wall at the east end of the patio-pool area. Because of the wind and high tides the ocean splashed against the bulkhead, which was the east end of the patio-pool area. The waves were uncommonly large and the water was murky.

After talking with the plaintiff for awhile Tim Henderson climbed over the wall and stood on the slanted ledge on the opposite side of the wall. He waited for a minute or two for a large wave, then dived into the ocean. After Tim's dive the plaintiff climbed over the wall, onto one of the projecting beams. While standing on the beam he looked down at the water and it looked deep. After observing the water for awhile he dived in. The plaintiff struck the bottom in the very shallow water and the blow caused a complete and permanent paralysis of his body from the neck down.

The defendant hotel moved for a directed verdict at the close of the plaintiffs' case and at the conclusion of all the evidence. The jury found negligence and returned its verdict for the plaintiffs. The defendant moved for a judgment in accordance with its motion for a directed verdict which motion was denied.

In evaluating the evidence on appeal the test is whether this court, after viewing the case most favorably to the successful litigant, can say that the jury as reasonable men could not have found the verdict that was entered upon the evidence before them. Bruce Construction Corp. v. State Exchange Bank, Fla.1958, 102 So.2d 288, 291; Ingraham Super Market, Inc. v. Major Appliances, Inc., Fla.App.1960, 121 So.2d 164, 166, 167. In addition, it is well to recognize that the issues of negligence and contributory negligence are ordinarily for a jury's determination. E. g., Deane v. Johnston, Fla.1958, 104 So.2d 3, 65 A.L.R.2d 957; Saunders v. Kaplan, Fla.App.1958, 101 So.2d 181. Nevertheless, there are instances in which the court must make these determinations as a matter of law. E. g., 6345 Collins Avenue v. Fein, Fla.1957, 95 So.2d 577; Nelson v. Ziegler, Fla.1956, 89 So.2d 780, 782. Such cases do not disparage the rule, but demonstrate rather that there are a few cases where the legal effect of the evidence is so clear that there is but one possible conclusion to be drawn and it is then the duty of the court to direct a verdict. In such cases the viewing of the evidence in the light most favorable to the unsuccessful party does not authorize the court to overlook or to ignore uncontroverted facts which appear from the evidence.

Inasmuch as negligence grows out of a breach of a duty we must examine the instant case to determine the duty which the hotel owed to its guest who was injured. This duty has been set out by the Supreme Court of Florida in an analogous case, Brightwell v. Beem, Fla.1956, 90 So.2d 320, 322, where the court quoted from 52 Am.Jur., Theatres, Shows, Exhibitions, etc., section 71, page 315, as follows:

'The owner or proprietor of a bathing or swimming resort or pool as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain his place and all appliances intended for the use of patrons in a reasonably safe condition for all ordinary, customary, and reasonable uses to which they may be put by patrons, and to use ordinary and reasonable care for the safety of his patrons, and he may be liable for injury to a patron from breach of his duty.'

The Supreme Court further pointed out that it had announced the same rule in Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720; Pickett v. City of Jacksonville, 155 Fla. 439, 20 So.2d 484; Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 38 L.R.A.,N.S., 72.

It is suggested that the hotel violated this duty in one or more of the following ways: 1. It failed to maintain a lifeguard on duty. 2. It failed to maintain a guard rail. 3. It failed to post signs or other warnings against use of the subject wall or the beams protruding therefrom as a means of diving or jumping into the ocean. 4. It maintained the two concrete beams, which extended easterly some four feet from the wall, so that the same were susceptible to the inference by an uninformed, inexperienced minor patron of the hotel, that they were or had been the foundation of a diving platform. We have examined the evidence in the light of each one of these suggested bases for negligence. We think that the plaintiffs, in all of the above contentions, overlook the fact which appears uncontrovertedly from the evidence; that there was a fourfoot wall at the end of the patio area. The plaintiff found it necessary to climb over this wall and assume a precarious position outside of the wall area in order to get a footing from which to dive. There was no other way by which one could enter the ocean except to climb over the wall. One who stood at the wall could clearly observe that it was located at the edge of the ocean. To require a warning under such circumstances would be as ludicrous a requiring a sign on the top of an office building reading 'don't jump off here'.

The duty of care for resorts providing bathing facilities is clear. But there is no presumption of negligence on the part of the operator of such a resort on a showing that an injury has been sustained by one rightfully on the premises. Pinehurst Co. v. Phelps, 163 Md. 68, 160 A. 736.

In the Brightwell case, above cited, the Supreme Court concluded that the directed verdict for the defendant at the close of the plaintiff's case should not have been given. The opinion in that case points out :

'It is our conclusion that there is in this record at this stage of the cause an area of proof which might justify a jury in concluding that there was negligence on the part of the appellees which could have been the proximate cause of the girl's injury. We find this in the answer of the appellees themselves when considered in the light of the testimony that was offered in the court below. By their answer, the appellees specifically deny that the dock or platform was provided for diving purposes and on the contrary alleged that it was provided merely for swimming and sun-bathing. Despite the fact that appellees had provided this platform for a limited purpose nonetheless closely related to swimming activities, it was nevertheless established by this record that appellees were thoroughly acquained with the fact that their customers were using the platform for diving purposes. A jury in this state of the record would be justified in concluding that if the platform area was not intended as an area suitable for diving then it was the responsibility of the owners of the amusement park to see to it that their patrons were suitably warned of the restricted usage to which the area might safely be put.

'In the case at bar the testimony showed that one of the defendants actually saw Peggy Jo preparing to dive on the occasion that resulted in her injury. It shows...