Pinson v. Barlow

• Decision Date: 24 April 1968
• Docket Number: No. 67--340,67--340
• Parties: James J. PINSON and wife, Doreen Pinson, Appellants, v. Richard BARLOW and wife, Betty Barlow, Appellees.
• Court: Florida District Court of Appeals

Page 722

209 So.2d 722

James J. PINSON and wife, Doreen Pinson, Appellants, v. Richard BARLOW and wife, Betty Barlow, Appellees.

No. 67--340.

District Court of Appeal of Florida, Second District.

April 24, 1968.

Rehearing Denied May 6, 1968.

William F. Edwards, of Bradshaw & Edwards, Inverness, for appellants.

Heskin A. Whittaker, of Whittaker, Pyle & Wood, Orlando, for appellees.

HOBSON, Judge.

Plaintiffs-appellants appeal a final summary judgment entered in favor of the defendants-appellees in an action for personal injuries sustained by appellant-wife when she fell or jumped into a boatslip while in the act of saving her drowning child.

Appellants are husband and wife and appellees are husband and wife. On the date of the accident, thw two wives jointly purchased some cucumbers and ingredients needed for picking from which they were going to make pickles to divide equally. While on the premises of appellees and while pickling these cucumbers with the appellee-wife, appellant-wife heard a cry from the appellees' child. She went outside where she saw her own three-year-old child floating facedown in a canal adjacent to appellees' property. She then ran toward the canal and fell or jumped into a boatslip of which she was aware and thereby injured herself. The boatslip in question was a hole or pit some 18 feet long and 12 feet wide.

Appellants filed their complaint for damages alleging negligence on the part of appellees and asserting, among other allegations, that the appellant-wife was lawfully on the premises of the appellees as a business invitee to engage in the enterprise of pickling cucumbers. As an invitee, the appellant-wife contends that she was owed the duty of warning signs around the boatslip or some other safeguard such as a railing around the boatslip.

Appellants raise one point on appeal: 'Was the plaintiff, Doreen Pinson, guilty of contributory negligence as a matter of law when she fell into a hole while in the act of saving a life?'

Before we arrive at the question of appellant-wife's contributory negligence, it must first be decided whether the appellees were guilty of any negligence. It is a fundamental principle of law that before a licensee can recover against a licensor it must be shown that the licensor owed a duty toward the licensee, that this duty was violated, and that the violation of this duty was the proximate cause of licensee's injury. Once this has been shown satisfactorily, then the question of licensee's contributory negligence, if any, arises.

The manner in which appellants have framed their sole point on appeal presupposes that the appellees owed appellants a duty, were negligent in the performance of that duty, and that appellant-wife was injured as a result.

It logically follows then, that first it must be determined whether or not appellees owed any duty toward the plaintiffs and if so, just what that duty was.

From the record-on-appeal, it appears that the injured plaintiff, Doreen Pinson, was lawfully upon the premises of the appellees. Therefore, we must decide whether she was a business invitee or a licensee.

'A licensee is broadly defined as a person who enters upon the property of another for his own convenience, pleasure, or benefit.' (Stewart v. Texas Company, Fla.1953, 67 So.2d 653, 654, quoting Am.Jur., Negligence, §§ 104 and 105.)

'An invitee is normally considered to be one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.' (City of Boca Raton v. Mattef, Fla., 91 So.2d 644)

It is clearly shown from the pleadings and affidavits contained in the record-on-appeal that the relationship between the plaintiffs and defendants was that...