Isenberg v. Ortona Park Recreational Center, Inc.

• Decision Date: 23 January 1964
• Docket Number: No. E-37,E-37
• Parties: Lillian M. ISENBERG, a minor, by Llewellyn K. Isenberg, her father and next friend, and Llewellyn K. Isenberg, individually, Appellants, v. ORTONA PARK RECREATIONAL CENTER, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 132

160 So.2d 132

Lillian M. ISENBERG, a minor, by Llewellyn K. Isenberg, her father and next friend, and Llewellyn K. Isenberg, individually, Appellants, v. ORTONA PARK RECREATIONAL CENTER, INC., a corporation, Appellee.

No. E-37.

District Court of Appeal of Florida, First District.

Jan. 23, 1964.

Rehearing Denied Feb. 18, 1964.

Parkinson, Sessions & Barry, Daytona Beach, for appellants.

Alfred A. Green, Jr., Daytona Beach, for appellee.

TAYLOR, Associate Judge.

This is an appeal by plaintiffs, a minor child and her father, from a judgment based on a verdict in favor of the defendant in an action for personal injuries sustained by the minor under the following circumstances:

Plaintiff, Lillian M. Isenberg, a minor sixteen years of age, was a business invitee on the premises of the defendant, Ortona Park Recreational Center, Inc., where she went to play tennis, as she had done on several previous occasions. She reached the tennis court by passing through a pro shop which fronts on the tennis court with a series of glass panels and sliding glass doors. The door by which she passed from the pro shop to the tennis court was open as she usually found it.

After playing tennis, and just about sundown, she ran from the tennis court intending to enter the pro shop through the same doorway. But in the meantime the sliding glass door had been closed, and, not observing this, she ran into the door which shattered inflicting upon her rather grievous injuries.

The evidence shows that the door was of plate glass, that it had a narrow aluminum band around it, a pull bar on one side, and (the evidence on this is conflicting) a decal about seven by five inches showing a fish in a colored background.

The evidence also discloses that the interior of the pro shop was lighted as compared with the fading light outside, that the doorway usually remained open when the weather was suitable for tennis and that Miss Isenberg had frequently used the doorway and had never seen the door slid across this opening between the tennis court and the pro shop.

The case was tried in due course, and the trial judge denied a motion on behalf of the defendant for a directed verdict. The jury rendered the following verdict: 'We, the jury, find the defendant and the plaintiff guilty of negligence. So say we all.' When the verdict was read the judge asked 'Any objection to the form of the verdict?' The record shows that there followed an unreported side-bench discussion between the court and counsel for both parties. No objection was made to the form of the verdict, and it was received and a judgment entered in favor of the defendant.

On this appeal, plaintiffs present two questions--(1) the alleged insufficiency of the verdict to support a judgment for defendant and (2) alleged error in giving the jury the following charge:

'I charge you that every person owes himself the duty to see what is plainly to be seen by the ordinary use of his senses, and the law charges a person with having seen what he could have seen, had he looked.'

The first question presents no difficulty. The plaintiffs had every opportunity to request the court to require a more specific verdict or to object to the form of the verdict. They did neither. Under these circumstances they should not be heard to complain of the entry of judgment upon the verdict.

Before discussing the second question we should dispose of a cross-assignment of error by the defendant that the court erred in refusing to direct verdict for the defendant based on two theories--(1) that the evidence shows no negligence of the defendant proximately causing the accident and (2) that the evidence clearly discloses contributory negligence on the part of Lillian M. Isenberg. If a verdict should have been directed for the defendant, errors in the charge would not justify a new trial of the case.

The trial judge heard the evidence which described the door, its location and construction and with respect to the prior custom of leaving the door open during use of the tennis courts and the closing of the door under the circumstances of this case. He determined that a jury question was presented on the issues of the defendant's negligence. We agree.

In the light of the charge quoted above, the question of contributory negligence requires a more detailed consideration.

It is elementary that contributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary reasonable and prudent person in a similar situation would exercise.

In determining whether a particular individual has been guilty of contributory negligence at a particular time, it is necessary to consider (1) the characteristics of that individual--age, intelligence, experience, knowledge, physical condition, etc.--which would affect his ability to detect dangerous conditions or appreciate the degree of hazards involved in conditions actually observed; (2) the physical facts--the extent to which the particular hazard is noticeable and the degree of alertness to avoid such a hazard reasonably called for by surrounding circumstances; and (3) the action, taking place--the incidents of movement, sound and physical activities of the individual charged with contributory negligence and other persons and objects, animate and inanimate.

It is the action of the individual in the light of all the foregoing factors which determines whether or not he has been guilty of contributory negligence.

Where all the facts are undisputed and where only one reasonable deduction may be made, then the question of whether or not a particular individual has been guilty of contributory negligence at a particular time becomes a question of law for the court, but where there is conflict in the evidence as to facts or when the undisputed facts are of such a nature that reasonable men might draw different conclusions then a jury question is presented.

In this case, the trial court denied defendant's motion for a directed verdict, thereby determining that a proper case for the exercise of a jury's judgment was presented. After consideration of all arguments to the contrary, we are convinced that the trial judge was correct in this ruling, and that the case was properly submitted to the jury.

Having reached that conclusion, we find it impossible to reconcile the submission of the case to the jury with the giving of the quoted instruction. The first part of the charge 'I charge you that every person owes himself the duty to see what is plainly to be seen by the ordinary use of his senses,' is sound. But the last portion 'and the law charges a person with having seen what he could have seen, had he looked,' is equivalent to charging the jury that every person is at all times charged with the actual knowledge of the presence of every hazard capable of being discovered by the use of sense of vision. We do not think that is the law.

It must be admitted that the opinions of the Supreme Court and those of the District Courts of Appeal are not altogether harmonious when considered as abstract pronouncements of law independent of the facts of the particular cases being considered.

There are statements in a series of cases which are summarized in the language of the District Court of Appeal, Third District, in Kagan v. Eisenstadt, 98 So.2d 370.

'The Supreme Court of Florida has continually adhered to the proposition that requires a person to see what is there to be seen by the ordinary use of his senses, and if it is there to be seen, it is deemed, in law, to have been seen.' ¹

On the other hand, the Supreme Court of Florida in the case of the City of Jacksonville v. Stokes, 74 So.2d 278, said:

'If visibility alone settled contributory negligence every case of slipping on a floor or of encountering any stationary object would automatically be a case of non-liability for in all these cases the condition which caused the harm was visible. The question always is whether the plaintiff used due care for his own safety, taking into account all the circumstances, of which the visibility of the object encountered is an important one, but still only one of the circumstances.

'The question is whether one should be aware of the danger. This depends largely upon the likelihood of encountering danger. * * * One need not look for danger unless there is reason to expect. it.' ²

While there is definite inconsistency in the language of the opinions, a careful study of the facts of the various cases leads to the conclusion that the real difference is more in the evaluation of the facts being considered than in inconsistency or vacillation in stating the law.

The facts of a case may be such that the court feels impelled to hold as a matter of low that a plaintiff has been guilty of contributory negligence in failing to become conscious of and avoiding a particular hazard.

In a similar, but slightly different, case the court may reach the conclusion that reasonable men could differ on the question of whether or not the hazard was so obvious that a reasonably prudent and cautious man would have necessarily become conscious of the danger and have avoided injury.

In the first case the court determines 'as a matter of law' that there was contributory negligence. In the second, the court determines 'as a matter of law' that a jury question is presented. But in each case the court is actually evaluating a factual situation.

When we read the apparently conflicting decisions in the light of this principle we reach the conclusion that the different results have been product of the judicial evaluation of different factual situations and that the inconsistencies--and some must be admitted--are more in the evaluation of facts than in stating principles of law.

We think the rule is this: It is the duty of every person to exercise his individual faculties, physical and mental, to detect and avoid hazards to that degree that an ordinary and...