Improved Benev. and Protected Order of Elks of World, Inc. v. Delano

• Decision Date: 11 February 1975
• Docket Number: 74--18,Nos. 74--17,s. 74--17
• Citation: 308 So.2d 615
• Parties: The IMPROVED BENEVOLENT & PROTECTED ORDER OF ELKS OF the WORLD, INC., et al., Appellants, v. Margaret DELANO, Appellee.
• Court: Florida District Court of Appeals

Page 615

308 So.2d 615

The IMPROVED BENEVOLENT & PROTECTED ORDER OF ELKS OF the WORLD, INC., et al., Appellants, v. Margaret DELANO, Appellee.

Nos. 74--17, 74--18.

District Court of Appeal of Florida, Third District.

Feb. 11, 1975.

Rehearing Denied March 12, 1975.

Adams, George, Wood, Lee, Schulte & Thompson, Jeanne Heyward, Miami, for appellants.

Sherouse, Virgin, Whittle & Slatko and Gary E. Garbis, Nachwalter & Falk, Miami, for appellee.

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

PER CURIAM.

Defendant-appellant, the Elks, appeals an adverse final judgment in the total sum of $9,000 entered in favor of the plaintiff-appellee and a final judgment entered in favor of cross-defendants on defendant-appellant's crossclaim.

On June 13, 1970, the Central Bank sponsored a picnic which was held on the premises of defendant-appellant, The Improved Benevolent & Protected Order of Elks of the World, Inc. (hereinafter referred to as the Elks). The picnic was catered by Kay Smith Catering which, pursuant to a concession agreement with the Elks, paid a $25.00 fee and was granted permission to hold such an event on the Elks' premises. Under the terms of the concession agreement, Kay Smith Catering was charged with the duty of supervising the cleaning of the building area occupied and used by the guests. However, the Elks was responsible for the maintenance of the outside picnic grounds used by the caterers and picnic guests. On the day of the picnic, plaintiff-appellee, Margaret Delano, an employee of the Central Bank arrived at the Elks' lodge with her escort. While walking across the lawn, plaintiff's foot slipped into a hole and she sustained serious injury as a result thereof.

Thereafter, plaintiff sued the Elks and its liability insurer, Travelers Insurance Company and Kay Smith Catering and its liability insurer, National Indemnity Company for damages for personal injuries received by her. The Elks and its insurer answered, denying all allegations of liability and filed a crossclaim against Kay Smith Catering and National Indemnity based upon a provision of the concession agreement providing that Kay Smith agreed to hold the Elks harmless from any claims made by customers, employees or others and to obtain liability insurance therefor. Kay Smith and its insurer admitted the execution of the concession agreement, but denied the allegations of the crossclaim. Kay Smith also filed a crossclaim against the Elks for indemnity, ¹ should Kay Smith be found liable on plaintiff's complaint. The cause proceeded to trial by jury, at the conclusion of which, the trial judge granted plaintiff's motion for directed verdict against the defendant-appellant, the Elks and its insurer, Travelers Insurance Company and further, granted a motion for directed verdict in favor of appellee, Kay Smith Catering and National Indemnity. The issue of damages was submitted to the jury which returned a verdict of $9,000 which was reduced to final judgment. Thereafter, the trial judge then considered the crossclaim of the Elks and found as a matter of law thereon against the Elks and its insurer and in favor of Kay Smith Catering and its insurer. The court then entered final judgment denying the motion of the Elks for summary judgment on its crossclaim and granting the motion of Kay Smith for summary judgment thereon. This appeal followed.

Defendant-appellant, the Elks, first urges as error the granting of a directed verdict in favor of the plaintiff (and against the Elks). We cannot agree.

The Florida Supreme Court in Wood v. Camp, Fla.1973, 284 So.2d 691 has held that the class of invitees to whom a landowner owes a duty of reasonable care includes those who are licensed by invitation of the property owner, either by express or reasonably inplied invitation, and there is no distinction between commercial visitors and social guests. Plaintiff in the case sub judice is at the very least a licensee by a reasonably implied invitation and therefore the Elks, as owner of the premises, owed to plaintiff a duty of reasonable care and to warn her...