Burton v. Varner
| Decision Date | 28 May 1974 |
| Docket Number | No. 73--1340,73--1340 |
| Citation | 296 So.2d 641 |
| Parties | Dorothy BURTON and Jerry B. Burton, Appellants, v. John L. VARNER, Jr., et al., Appellees. |
| Court | Florida District Court of Appeals |
George B. Weires, Miami, for appellants.
Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellees.
Before CARROLL and HENDRY, JJ. and BOARDMAN, EDWARD F., Associate Judge.
Appellant-plaintiffs seek review of an adverse summary judgment on a complaint seeking damages for personal injuries sustained while water skiing.
Deposition testimony before the trial judge on the defendant-appellees' motion for summary judgment revealed that plaintiff, Dorothy Burton, was injured when she collided with a metal pipe protruding from the yard of a private home along the surface of a lake in a Palm Springs North development. 1 Mrs. Burton was having a family reunion at her home, which also backed into the lake, when the accident occurred.
The plaintiff and her sister-in-law, Sylvia Varner, were skiing, and being pulled behind a 17-foot motor boat operated by defendant, James C. Varner, the plaintiff's nephew. Plaintiffs' complaint alleges that the boat in question was owned by Sylvia Varner and John L. Varner, the plaintiff's brother. The record is clear that John Varner neither was operating nor was he present in the boat when the accident happened.
Appellees rely on Fla.Stat. § 371.52, F.S.A. to relieve John and Sylvia Varner of liability in this case, and we agree that it does. The statute declares boats to be dangerous instrumentalities and imposes a duty upon any operator to exercise the highest degree of care to prevent injury. It further provides:
'. . . Liability for negligent operation of a boat shall be confined to the person in immediate charge or operating the boat and not the owner of the boat, Unless he is the operator or present in the boat when any injury or damage is occasioned by the negligent operation of such vessel . . .' (Emphasis added.)
It is the appellants' contention that the definition of the word 'operate' 2 contained in Ch. 371 would bring at least Sylvia Varner within the provision of Section 371.52 imposing liability on the owner of a boat.
First, we would point out the fact that Section 371.52 creates liability upon a boat owner who is a natural person only if the owner is Actually operating the boat or is personally present in it. Rountree v. A. P. Moller Steamship Company, Fla.App.1969, 218 So.2d 771; see also, Jowanowitch v. Florida Power & Light Company, Fla.App.1973, 277 So.2d 799.
Next, while the complaint alleges that Sylvia Varner is a co-owner of the boat in question along with her husband, our review of the record does not indicate ownership in anyone other than John L. Varner.
Lastly, the testimony shows that prior to Mrs. Burton's collision with the metal pipe causing her injuries, Mrs. Varner had fallen off her skis into the water and therefore, we do not think that at the time of the accident she could be said to be 'operating' the boat.
Appellants also may not base liability upon the ground that Mr. and Mrs. Varner were negligent in entrusting the boat to an incompetent operator, which proximately resulted in the plaintiff's injuries. Jowanowitch v. Florida Power & Light Company, supra; Fla.Stat. § 371.504, F.S.A. The record demonstrates that James C. Varner owned his own boat and had...
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Strickland v. Roberts
...Plaintiff relied on deJesus v. Seaboard Coastline Railroad Co., 281 So.2d 198 (Fla.1973); the defendant relied upon Burton v. Varner, 296 So.2d 641 (Fla. 3d DCA 1974). In its final summary judgment, the trial court 4. The Plaintiff was a competent, proficient and experienced waterskier as i......
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Bradley v. Guy
...standard of care upon boat drivers than upon other persons. In obiter dicta, the Third District Court of Appeal in Burton v. Varner, 296 So.2d 641 (Fla. 3d DCA 1974) makes reference to the statute and its imposing "a duty upon any operator [of a boat] to exercise the highest degree of care ......
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MIHELICH v. Travers
...shows that Todd did not deviate from the standard of care established by the applicable statutes and common law. See Burton v. Varner, 296 So.2d 641 (Fla. 3d DCA 1974). We do, however, agree with Mihelich that the lower court erred in dismissing Count VI, but only as it relates to SLSC. In ......