Des Isles v. Evans
| Decision Date | 17 December 1952 |
| Docket Number | No. 14045.,14045. |
| Citation | 200 F.2d 614 |
| Parties | DES ISLES v. EVANS et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles Longstreet Weltner, Atlanta, Ga., Sheldon Dubler, Miami, Fla., for appellant.
A. Walton Nall, Atlanta, Ga., John A. Murray and Clarence J. Brown, Jr., Miami, Fla., for appellees.
Before BORAH, STRUM and RIVES, Circuit Judges.
This appeal is from a judgment dismissing the amended complaint upon the ground that it failed to state a cause of action upon which relief could be granted. The complaint charged that appellant was a paying patron of appellees' swimming pool; that appellant dove from the low diving board and struck her head against a submerged swimmer, then swimming under water in the diving area of the pool, resulting in serious injuries.
The appellees are charged with negligence in the following particulars: a. in failing to maintain a lifeguard to prevent swimmers from entering "the portion of the pool reserved for divers"; b. in superintending the patrons of the pool to protect them when using the diving board from under-water collision with swimmers; c. in providing a safe and proper place for divers; d. in policing and supervising the place where a patron could dive from the low diving board.
The substantive duty owed by a swimming pool operator to a paying patron is, of course, controlled by the law of Florida. In Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 698, 38 L.R.A., N.S., 72, the Florida Supreme Court says:
In McKinney v. Adams, 68 Fla. 208, 66 So. 988, 993, L.R.A.1915D, 442, after referring to the duty to provide proper supervision and proper persons and appliances to rescue patrons in water customarily used by patrons when the patrons themselves are without fault, the Florida Supreme Court says:
"All of these precautions may be duties of the operator of the place who offers its use to the public if the circumstances make such precautions reasonably necessary or expedient for the safety to those who use the waters in the customary way."
The two Florida cases referred to recognize that contributory negligence is an affirmative defense to be pleaded and proved by the defendant unless it appears in the case made by the plaintiff.
The rule of pleading in Florida was well stated in Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 49 So. 1024, 1025:
"It is settled law here that every pleading is to be construed most strictly against the pleader thereof, and also that a declaration in an action at law should allege distinctly and clearly every fact that is essential to the plaintiff\'s right of action."
With the application of that rule of pleading to the facts under the substantive law of Florida the Florida Courts have reached varying results in cases involving the duty of a swimming...
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United States v. State of Mississippi, Civ. A. No. 3312.
...plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim * * *' Des Isles v. Evans, 5 Cir. (1952), 200 F.2d 614, 615 * * *." Arthur H. Richland Co. v. Harper, 5 Cir., 1962, 302 F.2d 324, 325. Of course the principle is a series of negat......
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BOARD OF SUPERVISORS OF LA. STATE U., ETC. v. Tureaud
...and laws of the United States, and hereinbefore and hereinafter more fully set forth." 32 207 F.2d 807. 33 Des Isles v. Evans, 5 Cir., 1952, 200 F.2d 614, 616. 34 "It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction th......
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Baldwin v. Morgan
...plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim * * *," Des Isles v. Evans, 5 Cir., 200 F.2d 614, 615; Millet v. Godchaux Sugars, Inc., 5 Cir., 241 F.2d 264, at page 265 and see our cases collated in note 5 "In appraising the s......
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Roberts v. Williams
...have been dismissed for failure to state a Federal claim. We also refer defendant to the opinion of this court in Des Isles v. Evans, 200 F.2d 614, 615 (5th Cir. 1952): * * *. As stated by Professor Moore, "the courts have ruled time and again that a motion to dismiss for failure to state a......