Hemispheres Condominium Ass'n, Inc. v. Corbin, 77-789

• Decision Date: 02 May 1978
• Docket Number: No. 77-789,77-789
• Citation: 357 So.2d 1074
• Parties: HEMISPHERES CONDOMINIUM ASSOCIATION, INC., and Public Service Mutual Insurance Company, a New York Corporation, Appellants, v. Sally CORBIN, as Personal Representative of the Estate of Sidney Russell Corbin, Appellee.
• Court: Florida District Court of Appeals

Page 1074

357 So.2d 1074

HEMISPHERES CONDOMINIUM ASSOCIATION, INC., and Public Service Mutual Insurance Company, a New York Corporation, Appellants, v. Sally CORBIN, as Personal Representative of the Estate of Sidney Russell Corbin, Appellee.

No. 77-789.

District Court of Appeal of Florida,Third District.

May 2, 1978.

Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellants.

Snyder, Young, Stern, Barrett & Tannenbaum and William L. Rogers, North Miami Beach, for appellee.

Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

PEARSON, Judge.

The principal question presented by this appeal is whether the facts in evidence before the jury were sufficient as a matter of law to establish negligence. The complaint sought damages arising out of the claimed negligence of the defendant, a condominium association, in the operation of a swimming pool in which Mr. Corbin (the appellee's deceased) drowned. The action was brought by appellee Sally Corbin, as the personal representative of the estate of Sidney Russell Corbin, and as an individual. Defendant's answer denied negligence.

Following instructions, the jury initially returned a verdict finding for the estate in the amount of $100,000. Because the parties had stipulated that in event a verdict was returned for the estate, the damages to the estate were to be $6,212.50, the court declined to enter the verdict returned and reinstructed the jury. The jury then returned with a verdict in the estate action in the amount of $75,000 and in the wrongful death action in the amount of $25,000. The court discharged the jury and, thereafter, denied plaintiff's motion to amend and correct the verdict and interrogate the jury. The court also denied defendant's motion for judgment notwithstanding the verdict. Upon motion for new trial and remittitur, the plaintiff was required to remit $68,787.50 in the estate action as the excess over the stipulated damages to the estate. Final judgment was entered on the verdict and the defendant has appealed the judgment, assigning as error the denial of its motions for directed verdict and its motion for judgment notwithstanding the verdict. The plaintiff has filed cross-assignments of error directed to the court's denial of her motion to amend and correct the verdict.

Mr. and Mrs. Corbin rented an apartment in the condominium complex from the owner of that apartment. The Hemispheres Condominium had two pools managed by a pool manager, who, in the course of his job, would circulate back and forth between the two pools during the day. Although there were four attendants working under the manager, there was only one attendant on duty at the pool where Mr. Corbin drowned at the time of the incident. This attendant had the lifesaving responsibilities. In addition, his duties included attending to the lounge chairs, enforcing the rules and regulations of the pool deck and maintaining the pool. He also took tennis reservations, but he testified that he maintained constant surveillance of the pool.

The pool attendant was not a "lifeguard." He had been trained by the pool manager in the use of all the lifesaving equipment, which consisted of a shepherd's hook, life ring with life line attached, oxygen tank and the communication system for the rescue squad. He was not trained in the administration of artificial respiration. The association had posted signs at the pool, "Swim at your own risk."

Mr. Corbin was sixty-three years old. He was a strong swimmer and was swimming alone (to the extent that he had not gone to the pool with a companion). Many other persons were in the pool at the time. Mr. Corbin had suffered for some time from epilepsy, although all indications were that the incidents were usually nocturnal. No one saw Mr. Corbin in trouble and the record is devoid of any reason that he sank in the water. At the time of the incident, the attendant testified that he was "(s)traightening lounges at the northeast corner of the pool." He first became aware that there was a problem when a small girl informed him that "(t)here was a man at the bottom of the pool." He ran to the pool, jumped in and pulled Mr. Corbin to the surface. He was then assisted by others in getting Mr. Corbin out of the pool. At the time, Mr. Corbin was not conscious and the color of his skin was blue. After laying Mr. Corbin down on the pool deck, the attendant ran to the pool office for a breathing apparatus and notified the paramedics on the property. He then returned with the breathing apparatus and found that another residence was giving Mr. Corbin artificial respiration. He set up the oxygen equipment and immediately placed it to Mr. Corbin's face. Very soon thereafter, the paramedics came with a fully-equipped ambulance, which is provided by the condominium association. Mr. Corbin was immediately taken to a hospital, where he died a few days later. An autopsy was performed by a pathologist who testified that ". . . the cause of death was complications of drowning." The pathologist further testified that based upon reasonable medical probability, there was no other cause of death. It was concluded by the doctor that the period of submersion ". . . was probably in the range of three to five minutes."

It is not suggested that the association was an insurer of Mr. Corbin's safety. Further, we think that it is clear that the association did not have the same duty of guarding persons from harm that would be applicable to a...