Gordon v. Hotel Seville, Inc.

• Decision Date: 22 July 1958
• Docket Number: No. 57-436,57-436
• Citation: 105 So.2d 175
• Court: Florida District Court of Appeals
• Parties: Ethel GORDON and Ted Gordon, her husband, Appellants, v. HOTEL SEVILLE, Inc., a Florida corporation, Appellee.

Page 175

105 So.2d 175

Ethel GORDON and Ted Gordon, her husband, Appellants, v. HOTEL SEVILLE, Inc., a Florida corporation, Appellee.

No. 57-436.

District Court of Appeal of Florida, Third District.

July 22, 1958.

Rehearing Denied Oct. 7, 1958.

Walsh, Simmonite, Budd & Walsh, Miami, for appellants.

Dixon, DeJarnette, Bradford & Williams and M. R. Adkins, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

The appellants, who were the plaintiffs in a tort action in the circuit court, appeal from a summary judgment entered in favor of the appellee.

The action grew out of injuries which the appellant Ethel Gordon sustained while swimming in the pool of appellee's hotel at Miami Beach where she and her husband were guests. She claimed that her injury was caused by boys engaged in boisterous conduct or horseplay at the pool, and charged the defendant hotel corporation with negligence in failing to maintain the premises in a reasonably safe condition by permitting and failing to supervise or check such boisterous conduct.

The plaintiff Mrs. Gordon was in the status of a business invitee on the premises of the hotel corporation. To her they owed a duty to keep the premises in a reasonably safe condition and to guard against subjecting her to dangers which were known or which might reasonably have been foreseen. McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187. More specifically, for an operator of a swimming pool, being an amusement or recreational area on the hotel premises, the nature of his duty to invitees who are paying guests was declared and described by the Supreme Court, speaking through Mr. Justice Thornal, in the case of Brightwell v. Beem, Fla.1956, 90 So.2d 320, 322, as follows:

'* * * The appellees operated a public amusement area and were charged with the degree of care customarily imposed upon the operators of such facilities. This degree of care is well summarized in 52 Am.Jur., Theaters, Shows, Exhibitions, Etc., Sec. 71, p. 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.'

'We ourselves have announced the same rule in Pickett v. City of Jacksonville, 155 Fla. 439, 20 So.2d 484; Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So.2d 720; Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 38 L.R.A.,N.S., 72.'

In the case of Quinn v. Smith Co., 5 Cir., 57 F.2d 784, which originated in the Southern District of Florida, it was held that it was a breach of such duty owed by an operator of a swimming pool, to permit boisterious, rude and dangerous conduct of persons at the pool without taking appropriate steps to control and prevent the same.

In that case, in an opinion written by Judge Hutcheson, the court said (at page 785):

'* * * It goes without saying, in fact, it is not disputed, that proprietors of bathing pools owe to their patrons a duty to exercise due care, not only in providing a safe and proper place as such, but in policing and supervising the place to protect those coming there from wanton and unprovoked assault and injuries at the hands of other persons there. Especially is this duty laid upon proprietors with regard to women and children, to protect them from the rude, boisterous, and unprovoked attacks and assaults. The case made by plaintiff showed an egregious want of care, not only entitling her to go to the jury, but, if her testimony was believed, making a clear case for recovery. It showed her presence at the pool as a patron, entitled to be there; the presence there of other persons, invited to entertain and amuse those who, like plaintiff, came as paying guests; conduct of those persons, boisterous, rude, and dangerous to a degree, going on without let or hindrance, and with apparently no one there present to prevent it; that suddenly, and without warning, she was hurled into the pool by one of those persons, with resulting serious injury. Such evidence if believed made a clear case for recovery. It required the submission of plaintiff's case to the jury.'

Cases dealing with the duty owed by the operator of such premises to its paying guests and the responsibility of an operator for injuries resulting from boisterous conduct and horseplay which is allowed to occur and continue without restraint, are collected and annotated in 16 A.L.R.2d 912, 932-935; 20 A.L.R.2d 8, 76-77; 29 A.L.R.2d 911, 917-920; and 48 A.L.R.2d 104, 165-166. See also, Central Theatres, Inc. v. Wilkinson, 154 Fla. 589, 18 So.2d 755, 757-758.

From the pleadings, affidavits and the...