First Arlington Inv. Corp. v. McGuire, 72--174

• Decision Date: 09 April 1975
• Docket Number: No. 72--174,72--174
• Citation: 311 So.2d 146
• Parties: FIRST ARLINGTON INVESTMENT CORPORATION, d/b/a La Playa Apartment Hotel, and La Playa of Redington Beach, Inc., d/b/a La Playa Apartment Hotel, Appellants, v. Kenneth E. McGUIRE, Appellee.
• Court: Florida District Court of Appeals

Page 146

311 So.2d 146

FIRST ARLINGTON INVESTMENT CORPORATION, d/b/a La Playa Apartment Hotel, and La Playa of Redington Beach, Inc., d/b/a La Playa Apartment Hotel, Appellants, v. Kenneth E. McGUIRE, Appellee.

No. 72--174.

District Court of Appeal of Florida, Second District.

April 9, 1975.

Rehearing Denied May 6, 1975.

David G. Hanlon of Shackleford, Farrior, Stallings & Evans, Tampa, and William F. Blews of Chambers & Blews, St. Petersburg, for appellants.

Michael J. Freedman of Levine & Freedman, Tampa, for appellee.

HOBSON, Acting Chief Judge.

Appellants appeal a final judgment entered against them and in favor of the appellee. Appellants at all times material to this action owned a resort apartment hotel known as La Playa Apartment Hotel. This hotel was situated on the Gulf of Mexico and included in its facilities was a pier extending from the beach approximately 220 to 300 feet out into the gulf. The pier was shaped like a capital 'T' with the top of the 'T' at the end of the pier farthest away from the beach. The pier had a railing around the entire border approximatley four feet in height. The pier was approximately 10 to 12 feet from the surface of the water, depending on the tides. At the top of the 'T' portion there were benches.

The pier was used for the benefit of appellants' guests and at the entrance there was a sign reading 'guests only.' There were no signs warning persons not to dive from the pier into the gulf waters nor were there any signs indicating the depth of the waters as you walked out on the pier. The evidence showed that the pier was used for fishing and that adults as well as minors dived frequently from the pier into the gulf. One such person who used the pier for diving was the son of an assistant manager of the La Playa Apartment Hotel.

On July 1, 1967, the appellee was an invitee of the appellants and on the day in question he walked to the end of the pier farthest from the beach, stepped upon a bench, then onto the railing. He looked into the water, could not see the bottom, and the water looked deep. He then dived into the water. Appellee had been on the pier once the night before in the dark. There is testimony that, prior to appellee's dive, at least three persons made statements to the effect that the water was shallow and appellee should not dive. The people making the statements testified that appellee made no response, did not look toward them or indicate in any way that he heard them. Appellee denied that he heard any such statements. There is no conflict in the evidence that in the area into which appellee dived you could not see the bottom nor discern that there was a sandbar in the area. There was evidence that there were swimmers in the area back toward the beach from the end of the pier. When appellee dived, his head struck the bottom, resulting in complete paralysis from his shoulders down.

Appellee brought suit against appellants on the theory that he being an invitee there was a duty upon appellants to warn him of latent or concealed dangers of which they were aware. The evidence showed that prior to 1963 persons dived from the end of the pier into the water without accident or injury; that in the fall of 1963 a hurricane caused a sandbar to form at the end of the pier in the area into which the appellee dived; that shortly after the creation of the sandbar by the hurricane, one James Parham dived from the end of the pier and suffered a broken neck due to the shallow water.

Appellants first contend that the trial court erred in allowing into evidence the fact that the pier was used for diving purposes in view of the fact that the pier was not designed for diving purposes or that the appellants in any manner invited the guests to use the pier for diving purposes.

Appellants also contend that they were not negligent as a matter of law, that the appellee was contributorily negligent as a matter of law, ¹ that his negligence was the sole proximate cause of his injuries, and that he assumed a known risk. It is well settled that a person who invites others on his premises must maintain the premises in a reasonably safe condition and must warn of dangerous conditions existing thereon. This duty extends not only to the ordinary use for which the premises are intended but also to the customary use of the premises by the invitee with the knowledge of the proprietor. Schweikert v. Palm Beach Speedway, Fla.1958, 100 So.2d 804.

In Brightwell v. Beem, Fla.1956, 90 So.2d 320, a 15-year old girl was an invitee of the bathing beach operated by the defendant. There was a wooden platform of dock extending approximately 35 feet into the water from the shoreline. The depth of the water beneath the platform went from the shoreline to some four to six feet at the end of the platform. The girl, at approximately 8:30 in the evening, attempted to dive off the side of the platform at a distance from the shore where the water was three to three and one-half feet deep. The platform was about two feet from the surface of the water. The girl's right foot slipped or twisted as she undertook to dive, causing her to enter the water in a distorted position, striking the bottom with the rightside of her head and shoulder and causing a severance of the spinal cord. The injury resulted in complete paralysis of the girl's four extremities.

The defense was grounded on the proposition that the platform was installed for swimming and sun-bathing but not for diving. The record in that case showed that patrons customarily used the platform for diving with the knowledge of the defendant. Likewise, as in this case, there was no evidence of any warning or that the injured person was familiar with the potential danger of using the area for diving. Our Supreme Court held in Brightwell, supra, at page 322--323:

'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 acquainted 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.'

'Again, we are not intending to hold that this conduct on the part of these defendants constituted negligence as a matter of law. We do here intend to hold that under the circumstances related above it was a matter within the province of the jury to determine whether the proximate cause of this girl's injury was her own negligence or carelessness in diving or whether it was the failure of the defendants below to warn her not to use the particular area of their amusement park for a purpose other than the admittedly intended purpose.

'Despite the difficulties in defining proximate cause, the established rule is that unless the minds of reasonable men could not differ as to the cause of an injury, ordinarily the problem of determining the existence of proximate cause and contributory negligence is peculiarly one for a jury.'

Appellants take the position that this case is controlled by the case of Biltmore Terrace Associates v. Kegan, Fla.App.3d 1961, 130 So.2d 631. The facts in Biltmore as stated by that court are as follows:

'. . . 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...