Henry v. Britt
| Citation | 220 So.2d 917 |
| Decision Date | 26 February 1969 |
| Docket Number | No. 1596,1596 |
| Parties | Joseph HENRY, individually and as Administrator of the Estate of Gary L. Henry, Deceased, a minor, Appellant, v. Duncan E. BRITT, Maurice P. Beeman, Charles S. Houha, James P. Thayer and D. E. Britt Associates, Inc., a Florida corporation, Appellees. |
| Court | Court of Appeal of Florida (US) |
Joseph M. Glickstein, Jr., of Glickstein, Crenshaw, Glickstein, Hulsey & Fay, Jacksonville, and Hugh S. Glickstein, Hollywood, for appellant.
William J. Flynn, of Knight, Underwood, Peters, Hoeveler & Pickle, Miami, for appellees.
Eleven-year old Gary Henry was drowned in a motel swimming pool when his arm became lodged in the main drain outlet at the deep end. Gary's father brought suit against the engineers who had designed the pool, alleging negligent design. Judgment was entered on the jury verdict for defendants and the father appeals.
The defendants denied negligence and asserted as affirmative defenses contributory negligence of the decedent, contributory negligence of each of the parents, and assumption of the risk by the decedent. At the conclusion of all of the evidence plaintiff's counsel moved the court to strike the affirmative defenses as being unsupported by the evidence. This motion was denied and the jury was instructed on such defenses. We are of the view that the court erred in failing to grant plaintiff's motion to strike these defenses and in thereafter submitting such issues to the jury, and we therefore reverse.
The specific negligence charged against the defendants was the failure to provide for the main drain outlet to be covered with a grating which was not readily removable by bathers, as required by the State Sanitary Code. There was substantial, competent evidence from which the jury could have found the defendants guilty of the alleged negligence. Consequently, only the evidence bearing on the affirmative defenses, stated most favorably to the defendants, is discussed here.
When Mr. and Mrs. Henry and son Gary arrived at the motel, Gary and his mother went to the pool while the father remained in the room resting. The mother was a non-swimmer and remained on the side of the pool tossing small objects into the water for Gary to retrieve. He was alone in the pool and there was no lifeguard nor pool attendant around the pool at the time. However, Gary was an excellent swimmer, having learned to swim at the age of four. He continued playing in the pool by himself while his mother sat in a poolside chair for a moment. When she realized that she no longer heard the noise of his splashing in the pool, she discovered his predicament and called the father, who immediately came to the pool and jumped in to assist his son. The motel manager was promptly summoned and he assisted the father in an attempt to rescue the boy but the combined physical effort of both men was inadequate to release Gary's arm from the suction of the pump until the manager got out of the pool and turned off the pump motor. After Gary was removed from the pool the drain cover was observed on the bottom of the pool several feet from the drain opening. The motel manager testified that he had walked by the pool earlier in the day and had not observed the grate out of position although he did not remember actually looking down into the pool. Gary's father testified that he had never instructed his son about playing around the drain opening in swimming pools.
Turning first to the question of the parents' negligence we are constrained to observe, without so holding, that the parents of a healthy 11-year old boy who is described as an excellent swimmer could hardly be said to be guilty of negligence in permitting such boy to swim in an ostensibly safe motel pool. But the facts of this tragic case make it unnecessary to render a decision on that question. It is settled law in this jurisdiction that only negligence on the part of the plaintiff having a direct and proximate causal relation, or contributing in some appreciable degree to the injury, will preclude recovery. Bessett v. Hackett, Fla.1953, 66 So.2d 694. From the evidence in ...
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Duncan v. Missouri Bd. for Architects, Professional Engineers and Land Surveyors, 52655
...irrelevant in defense of the charges here. Huang v. Garner, 157 Cal.App.3d 404, 203 Cal.Rptr. 800 (1984) Fnt. 9, [13, 14]; Henry v. Britt, 220 So.2d 917 (Fla.App.1969) Appellants have challenged the findings of the Commission on the basis that the hypothetical questions posed to three exper......
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...to reduce all of the recoverable damages, we agree that the defense was properly stricken below as a matter of law. See Henry v. Britt, 220 So.2d 917 (Fla. 4th DCA 1969), cert. denied, 229 So.2d 867 15. In reversion to and contrast with note 12, the following chart represents the applicable......
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Van Tuyn v. Zurich American Ins. Co.
...actually intended to assume those risks, the defense of express assumption of risk is unavailable to the defendants. Henry v. Britt, 220 So.2d 917 (Fla. 4th DCA 1969), cert. den. 229 So.2d 867 We are convinced that defendants did not, for purposes of summary judgment, carry their burden of ......
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...answered. First, the jury must decide whether the plaintiff subjectively appreciated the risk giving rise to the injury. Henry v. Britt, 220 So.2d 917 (Fla. 4th DCA), cert. denied, 229 So.2d 867 (Fla.1969); see also Dana v. Bursey, 169 So.2d 845 (Fla. 2d DCA 1964), (actual knowledge is esse......