Pickett v. City of Jacksonville

• Decision Date: 16 January 1945
• Citation: 20 So.2d 484,155 Fla. 439
• Parties: PICKETT v. CITY OF JACKSONVILLE.
• Court: Florida Supreme Court

20 So.2d 484

155 Fla. 439

PICKETT v. CITY OF JACKSONVILLE.

Florida Supreme Court

January 16, 1945

Rehearing Denied Jan. 29, 1945.

Appeal from Circuit Court, Duval County; Miles W. Lewis judge.

John E Lake, of Jacksonville, for appellant.

Stockton Ulmer & Murchison and Wm. A. Carter, all of Jacksonville for appellee.

CHAPMAN, Justice.

This appeal is from a final judgment on demurrer in behalf of the defendant below (appellee here) entered in the Circuit Court of Duval County Florida. The record discloses that plaintiff below filed some two or three declarations in the cause, but the only amended declaration presented by the record and considered here was filed on August 19, 1944, and the defendant's demurrer thereto was sustained and an appropriate order and final judgment entered on September 7, 1944. Our review here of this order, logically, presents the legal sufficiency of the above mentioned amended declaration.

Pertinent provisions of the amended declaration are, viz:

'That the plaintiff is the mother of Lester Pickett, who at the time of his death was of the age of about twelve years, whose father had before that time departed this life; that the defendant is a municipal corporation.

'That about the 18th day of June, 1943, the defendant owned and operated a pool for swimming in Springfield Park in Jacksonville, Florida and charged a fee for the use thereof; that on the said day the said Lester Pickett paid the defendant for the right to use the said pool, put on his bathing suit and entered the pool and swam therein; that it was then and there the duty of the defendant to exercise ordinary care to provide a reasonably sufficient number of competent attendants to insure the safety of the said Lester Pickett while he was using the said pool and to exercise ordinary care to make reasonable use of the safety equipment with which the pool was equipped at the time of the happening of things hereinafter complained of and to exercise ordinary care to observe the occupants of the pool to protect them from injury if they became endangered while using the pool and to exercise ordinary care to be prepared to rescue Lester Pickett when he got into a position or condition of danger and the defendant knew thereof or in the exercise of ordinary care should have known thereof.'

The alleged negligence of the defendant consisted in (1) a failure to provide a sufficient number of competent attendants about the pool; (2) only two attendants were provided by defendant for about 250 persons then using the pool; (3) that the two attendants so provided failed in the performance of their duty; (4) the perils then surrounding Lester Pickett would have been observed but for the carelessness of the attendants; (5) the defendant failed to use the safety equipment with which the pool was equipped; (6) the watch tower from which the pool and the bathers, inclusive of Lester Pickett, were observable was not used; (7) the perils or danger then surrounding Lester Pickett would have been appreciated by the proper use of the watch tower or had the attendants present performed their duties; (8) the number of attendants supplied by the defendant were inadequate to the exercise of ordinary care due to the 250 bathers, inclusive of Lester Pickett. These allegations of negligence appearing in the amended declaration on demurrer were admitted as true for the purpose of a ruling thereon.

The grounds of the demurrer are, viz: (1) The amended declaration fails to state a cause of action; (2) the allegations of negligence were legally insufficient; (3) it affirmatively appears that the defendant provided two attendants at the swimming pool; (4) the physical disabilities of Lester Pickett when in his perilous condition are not alleged; (5) it is not alleged that the two attendants provided failed to discharge their duties; (6) the allegations of the amended declaration make the defendant an insurer of the safety of Lester Pickett; (7) facts constituting a breach of duty on the part of the defendant as to the proximate cause of the injury and death are not alleged; (8) it is not alleged that the attendants provided in the exercise of ordinary care could have prevented Lester Pickett from drowning; (9) gross negligence must be alleged. See Section 481 of Charter of City of Jacksonville.

The question here presented for adjudication is whether or not the amended declaration filed August 19, 1944, states a cause of action. The charter power of the City of Jacksonville to own and operate a swimming pool is not presented but apparently was considered by the parties; neither is any applicable ordinance of the city involved or argued by counsel. The briefs filed do not contend for an application of the charter or ordinance provisions of the city of the facts charging negligence as a basis of the amended declaration.

The case of Turlington v. Tampa Electric Co., 62 Fla. 398, 56 So. 696, 698, 38 L.R.A.,N.S., 72, Ann.Cas.1913D, 1213, involved the legal sufficiency of counts of a declaration. It was made to appear that the Tampa Electric Company operated a swimming pool at Ballast Point near Tampa. Turlington, for a consideration, obtained a bathing suit and was entitled to the privileges of the bath house and spring board. He dived head first off the spring board into the waters of Hillsborough Bay and in so doing struck his head on the bottom of the bay, the depth of the water being only three or three and one-half feet. The dive against the bottom of the bay in the shallow water broke Turlington's neck. There were no signs at or near the spring board indicating the depth of the water. Turlington had no knowledge of its depth--there was no sign warning the public of the danger of diving from said spring board. The lower court held that the two counts of the declaration failed to state a cause of action. This order was reversed and we in part said:

'One who maintains a public resort is required by law to keep it in a reasonably safe condition for those who properly frequent the place. Where the public is invited to attend a resort, it is the duty of the one who so invites to exercise all proper precaution, skill, and care commensurate with the circumstances to put and maintain the place and every part of it in a reasonably safe condition for the uses to which it may rightly be devoted. A failure to comply with this duty may be negligence; and for an injury proximately caused by the negligence, the negligent party may be liable in damage, if the party injured is not guilty of contributory negligence. * * *

'Where a party maintains a bathhouse or a diving or swimming place for the use of the public...