Machin v. Royale Green Condominium Ass'n, 86-1165

• Decision Date: 14 April 1987
• Docket Number: No. 86-1165,86-1165
• Parties: 12 Fla. L. Weekly 1028 Guillermo MACHIN, as Personal Representative of the Estate of Roberto Machin, a deceased minor, Appellant, v. ROYALE GREEN CONDOMINIUM ASSOCIATION and G.D.G. Services, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 646

507 So.2d 646

12 Fla. L. Weekly 1028

Guillermo MACHIN, as Personal Representative of the Estate of Roberto Machin, a deceased minor, Appellant, v. ROYALE GREEN CONDOMINIUM ASSOCIATION and G.D.G. Services, Inc., a Florida corporation, Appellees.

No. 86-1165.

District Court of Appeal of Florida Third District.

April 14, 1987.

Rehearings Denied June 16, 1987.

Granville E. Petrie, Jr., Miami, for appellant.

Stephens, Lynn, Chernay & Klein and Robert Klein and Debra J. Snow, Miami, Lee, Schulte, Murphy & Coe and Jack Coe, Jupiter, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

PER CURIAM.

Plaintiff Guillermo Machin appeals from a final summary judgment entered against him in a wrongful death action. We reverse.

Guillermo Machin brought suit against defendants Royale Green Condominium Association and G.D.G. Services, Inc., alleging that their negligence in the operation of Royale Green's swimming pool resulted in the drowning of plaintiff's two-and-one-half-year-old son, Roberto Machin. Defendants moved for summary judgment on the grounds that there were no material issues of fact that if resolved in favor of plaintiff would result in a verdict in his favor and that the sole proximate cause of the accident was the mother's lack of supervision.

Mr. and Mrs. Machin rented an apartment in the Royale Green condominium complex from the owners of the apartment. On June 3, 1983, plaintiff took Roberto to the pool in the early afternoon. His wife and their other two children joined them at 2:45 p.m., and plaintiff departed. His family remained until 5:00 p.m. when Mrs. Machin left with the children and went to a neighbor's apartment. She visited for 15 to 20 minutes, during which time the Machin children were playing in and around the neighbor's apartment. At some point, Roberto and George Machin left their mother's vicinity and returned to the pool. Shortly thereafter, Roberto was found at the bottom of the pool nearly drowned. He died several days later.

The pool was enclosed by a chain link fence that provided access through a gate. G.D.G. Services, Inc., managed the condominium property pursuant to contract and was responsible for maintenance of the pool gate and latch. Testimony indicated that the gate did not self-close or have a spring lock in violation of Dade County Code 33-12(e) & (k). ¹ G.D.G.'s property manager testified that he found the gate ajar on several occasions and that small children were known to gain access to the pool without adults accompanying them. The president of Royale Green Condominium Association also testified to knowledge of young children coming into the pool area without their parents. George Machin, decedent's brother, was deposed and gave two different accounts of how they got inside the pool area: (1) that an older lady let the children into the pool area, and (2) that the children entered after the lady passed through the gate and it did not close behind her.

Plaintiff contends that based on this record there are disputed issues of material fact as to defendants' negligence and the proximate cause of the drowning which should have precluded the entry of summary judgment. We agree.

In order to prevail, the party moving for a summary judgment has the burden of demonstrating the nonexistence of any genuine issue of material fact and that movant is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). "Courts will not be disposed to grant a summary judgment unless a movant can show unequivocally that there was no negligence, or that the plaintiff's negligence was the sole proximate cause of the injury." Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982), rev. denied, 436 So.2d 101 (Fla.1983). The condominium association owed decedent, as a renter in the condominium complex, a duty to exercise ordinary or reasonable care. See Hemispheres Condominium Ass'n v. Corbin, 357 So.2d 1074 (Fla. 3d DCA), cert. denied, 364 So.2d 883 (Fla.1978). The testimony that the gate did not self-close in violation of the code was evidence of negligence. Bennett M. Lifter, Inc. v. Varnado, 480 So.2d 1336 (Fla. 3d DCA 1985), rev. dismissed, 484 So.2d 7 (Fla.1986). Thus, summary judgment could only be proper if plaintiff's negligence was the sole proximate cause of the injury.

It cannot be said as a matter of law that the mother's lack of supervision was the sole proximate cause of the accident. The conflicting interpretations of George Machin's testimony create a material issue of fact regarding whether the children gained access to the pool because the gate did not self-close. See Chiles v. Beaudoin, 384 So.2d 175 (Fla. 2d DCA 1980); Rauschbaum v. Goldstein, 204 So.2d 897 (Fla. 4th DCA 1967). In addition, there is circumstantial evidence from which a jury could draw a reasonable inference that the children gained access to the pool because of the gate's failure to self-close. Cf. Goode, 425 So.2d at 1155 (circumstantial evidence as to proximate cause is sufficient to allow the case to go to the jury where a prima facie case of negligence exists); Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959) (same), cert. denied, 122 So.2d 408 (Fla.1960). Whether the failure of the gate to latch automatically proximately caused the drowning is a question for the jury. See ...