Hylazewski v. Wet 'N Wild, Inc., 82-1000

• Decision Date: 16 June 1983
• Docket Number: No. 82-1000,82-1000
• Parties: Valerie HYLAZEWSKI, et vir, Appellants, v. WET 'N WILD, INC., etc., and Empire Fire and Marine Insurance Company, etc., Appellees.
• Court: Florida District Court of Appeals

Page 1371

432 So.2d 1371

Valerie HYLAZEWSKI, et vir, Appellants, v. WET 'N WILD, INC., etc., and Empire Fire and Marine

Insurance Company, etc., Appellees.

No. 82-1000.

District Court of Appeal of Florida,

Fifth District.

June 16, 1983.

Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellants.

Leslie King O'Neal of Markel, McDonough & O'Neal, P.A., Orlando, for appellees.

ORFINGER, Chief Judge.

Appellants, plaintiffs below, appeal the final order dismissing their action for damages, contending that their second amended complaint stated a cause of action and should not have been dismissed on appellee's motion. We agree and reverse.

Count I of plaintiffs' second amended complaint alleged in substance that plaintiff Valerie Hylazewski (plaintiff hereafter) was a paying patron of defendant's swimming facility; that while she was in defendant's pool as a swimmer, an inflatable raft on which another patron was riding and which was provided by defendant was violently hurled into plaintiff because of the action of a wave-making machine in the pool, causing her serious injury; that the propensity of the wave-making machine to hurl rafts into swimmers created a dangerous condition not known to plaintiff; that defendant was negligent in permitting swimmers and patrons on inflatable rafts to be present in the same pool with the knowledge that the wave action could hurl rafts and their riders into swimmers; that defendant was also negligent in not warning plaintiff of the danger created by the presence of inflatable rafts combined with the action of the wave-making machine, which danger was or should have been known to defendant, but which was not known to plaintiff. This count further alleged that defendant thus breached its duty of maintaining its premises in a reasonably safe condition and of warning plaintiff of concealed perils of which defendant knew or should have known, and which were not known to plaintiff and that the breach of this duty proximately caused plaintiff's injury. Plaintiff's husband joined the action in a count seeking his derivative damages.

In determining whether a complaint states a cause of action, we assume the truth of all well-pleaded allegations. See, e.g., Kaufman v. A-1 Bus Lines, 363 So.2d 61 (Fla. 3d DCA 1970). Unquestionably, plaintiff was an invitee on defendant's premises, as a paying patron of the facility. McNulty v. Hurley, 97 So.2d 185 (Fla.1957). Generally, an invitee is owed two specific duties by an owner/occupier of land: (1) to use ordinary care in keeping the premises in a reasonably safe condition, and (2) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee. Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989, 990 (Fla. 2d DCA 1980).

Appellee argues that there is no duty to warn of a danger which is open and obvious to the patron, citing Payne v. City of Clearwater, 155 Fla. 9, 19 So.2d 406 (1944), where the court held that because it was perfectly obvious to anyone who used a diving board in a swimming pool that the board would be wet and slippery from the very nature of its use, it was therefore unnecessary (thus not negligent) for the owner to warn of the slippery condition. However, accepting the facts alleged to be true, we note that the pleading alleges that the wave action in the pool created an inherently dangerous condition in that rafts and their riders would be hurled into persons innocently standing in the pool; that plaintiff did not know of the...