Elmore v. Sones

• Decision Date: 13 April 1962
• Docket Number: No. 2623,2623
• Citation: 140 So.2d 59
• Parties: Glenda Sue ELMORE, by her father and next friend, Ord Elmore, and Ord Elmore, individually, Appellants, v. Peter J. SONES, Peter J. Sones, Jr., Ester F. Floyd and Tampa Bay Theatres Inc., a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 59

140 So.2d 59

Glenda Sue ELMORE, by her father and next friend, Ord Elmore, and Ord Elmore, individually, Appellants, v. Peter J. SONES, Peter J. Sones, Jr., Ester F. Floyd and Tampa Bay Theatres Inc., a corporation, Appellees.

No. 2623.

District Court of Appeal of Florida, Second District.

April 13, 1962.

James M. McEwen, of Rood, Dixon & McEwen, Tampa, for appellants.

Thomas C. MacDonald, Jr., Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellees.

WHITE, Judge.

Glenda Sue Elmore, seven year old daughter of Ord Elmore, and Ord Elmore individually, were plaintiffs in a tort action for damages against Peter J. Sones and others. The plaintiffs seek reversal of the trial court's order dismissing their third amended complaint. The order of dismissal with prejudice was entered when plaintiffs' attorney announced that the plaintiffs could not amend further. The question on appeal is whether or not the plaintiffs sufficiently pleaded a cause of action based on negligence of the defendants.

The complaint alleged in substance that the minor plaintiff sustained detrimental and expensive injury to her leg as a result of a fall from certain playground equipment called 'monkey bars' located on the premisses of the defendants' drive-in theatre, that the plaintiffs were business invitees, that the minor plaintiff accepted the defendants' implied invitation and did use the defendants' playground and that while so engaged she was pushed from the 'monkey bars' by an unidentified boy, that there were thirty to forty children on the unsupervised playground at the time of said incident. Plaintiffs averred that the defendants should have provided supervision for the playground, knowing that the equipment thereon would attract children who had not arrived at the age of discretion. The complaint also alleged that pushing and shoving by children using the equipment had occurred on previous occasions. The plaintiffs charged negligence of the defendants as a contributing proximate cause, that the defendants should reasonably have foreseen that the incident complained of probably would occur inasmuch as children have a 'known proclivity to act impulsively without thought of the possibility of danger. * * *'

In most cases closely parallel to the instant case the plaintiffs' charges of negligence and liability have not been sustained. See 16 A.L.R.2d 912, 920, and cases cited. A recent decision of this court has been discussed in arguments of counsel as tending to favor their respective positions. In that case the defendant proprietor of an amusement establishment allegedly had knowledge of the dangerous propensity of a particular patron, and this court held that the specific allegation to that effect in an otherwise good complaint was sufficient to state a cause of action agaist the proprietor who had moved for summary judgment. Nance v. Ball, Fla.App.1961, 134 So.2d 35. On the other hand a proprietor is not responsible for injuries to a patron caused by the misconduct of another which the proprietor could not reasonably have foreseen and forestalled. This is the logical corollary to the rule in Nance v. Ball, supra, stated affirmatively in 2 Fla.Jur., Amusements, § 43 that the proprietor of a place of amusement owes the duty to exercise reasonable care to protect patrons from injuries resulting from the conduct of other patrons which reasonably could be anticipated and prevented. It is settled, of course, that persons operating public places of amusement are not insurers. Central Theatres, Inc. v. Wilkinson, 1944, 154 Fla. 589, 18 So.2d 755.

The applicable rule defining the duty to exercise reasonable care in such cases has been stated in Florida as follows:

'Where one undertakes to render a service by furnishing accommodations of a public nature, the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be sued.'

See Central Theatres v. Wilkinson, supra; Turlington v. Tampa Electric Co., 1911, 62 Fla. 398, 56 So. 696, 698, 38 L.R.A.,N.S., 72, Ann.Cas.1913D, 1213.

In the case just quoted a divided Supreme Court held that the theatre company was liable for injuries sustained by a patron struck in the eye from an air rifle shot during the showing of a motion picture. The defendant's employees observed the boys carrying the weapons into the theatre. They knew that the boys had fired the weapons at poles and objects in the patio outside. The majority opinion says:

'* * * If we ignore the proof that those connected with the theater and responsible for its proper operation and management had knowledge of the presence and actions of the 'cop' and 'robbers' then the argument that there was no duty to patrol the adjoining street, no reason to anticipate such a strange event, no occasion to expect harm to a patron by the defective door might have weight. If this had been an isolated incident when some boys happened in the course of their game to fire from a...