Poche v. Leon Motor Lodge, Inc.

• Decision Date: 22 March 1973
• Docket Number: No. R--185,R--185
• Citation: 275 So.2d 55
• Parties: Stephen S. POCHE, as father and next friend of Stephen M. Poche, a Florida resident, Appellant, v. LEON MOTOR LODGE, INC., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 55

275 So.2d 55

Stephen S. POCHE, as father and next friend of Stephen M. Poche, a Florida resident, Appellant, v. LEON MOTOR LODGE, INC., a Florida corporation, et al., Appellees.

No. R--185.

District Court of Appeal of Florida, First District.

March 22, 1973.

John S. Miller, Jr., Tallahassee, for appellant.

J. Lewis Hall, Hall, Hartwell & Hall, Tallahassee, for appellees.

PER CURIAM.

Affirmed.

RAWLS and JOHNSON, JJ., concur.

SPECTOR, C.J., dissents.

SPECTOR, Chief Judge (dissenting):

Stephen M. Poche, four-year-old son of Stephen S. Poche, lived with his family at the Talla Villa Apartments owned by appellee. The apartment complex included a clubhouse which was detached from any of the apartment buildings and was situated in the swimming pool area in the center of the complex.

On the day in question, Stephen was playing with another child in the clubhouse and, while exiting through a glass door, ran into the door with hands outstretched in front of him. Upon coming into contact with the door, it shattered and the boy sustained a number of cuts in and about his hands and face.

Appellants filed a complaint alleging that appellee was guilty of negligence and carelessness in the operation, control and construction of the premises; it was further alleged that appellee failed to provide safeguards to protect infants against the large area of glass which was virtually invisible under the conditions prevailing.

Appellee denied all of the material allegations in the complaint and further interposed two separate defenses: (1) the failure of the child's parents to properly supervise the child was the proximate or contributing cause of the accident, and (2) appellee interposed as a defense a clause in the lease agreement whereby its tenants agreed to hold the landlord harmless as to all damages from the use of the premises no matter what the cause is.

Based on affidavits and answers to interrogatories, both sides filed motions for summary judgment on the liability issue. Pursuant thereto, summary judgment was granted in favor of the landlord and the plaintiff appealed to review said judgment.

The law is quite clear in this jurisdiction that summary judgment should not be granted unless there is a total absence of justiciable material facts. In Avampato v. Markus, 245 So.2d 676 (Fla.App.1971), the court said:

'It is a well settled proposition that the issue of negligence is not to be determined on motion for summary judgment where the record suggests a factual issue or presents circumstances from which a might properly draw conflicting inferences. . . .'

Although the trial court did not articulate the basis for its judgment, the pleadings give rise to three separate theories, each of which might defeat appellant's claim. (1) Defendant was not negligent as charged. (2) Proximate cause of the plaintiff's injury was failure of his parents to properly supervise the child. (3) The exculpatory clause in the lease. We dispose of the latter first:

The lease provision states:

'19. Tenants agree to hold Landlord whole and harmless from any and all liability, damages or claims thereof, for and on account of any injury to themselves, members of their family, servants and invitees, either in person or in property, arising from any cause whatsoever, or about the leased premises, and from the use of any facilities thereof.'

Appellant contends that such lease provisions are invalid and I agree. In Nat Harrison Associates, Inc. v. Florida Power and Light Co., 162 So.2d 298 (Fla.App.1964), the court stated:

'It is the general principle of law that contracts of indemnification which attempt to relieve a party of its own negligency are not looked upon with favor. . . .'

To like effect, the court in Smith v. Ryan, 142 So.2d 139 (Fla.App.1962), said:

'It is never presumed that a contract is intended to protect one against his own negligence, and hence, unless it clearly so states, the courts hold that such was not the intention.'

See also Western Union Tel. Co. v. Milton, 53 Fla. 484, 43 So. 495 (1907), establishing that such exculpatory clauses have long been in disfavor.

Dealing directly with an exculpatory clause in a lease contract, the court in Taylor v. Virginia Construction Corp., 209 Va. 76, 161 S.E.2d 732, held that lease provisions exempting landlord from liability, signed by father for injury to tenant, his family, servants, and invitees, did not bar suit by tenant's infant son where injury took place in entranceway of apartment house, a common area reserved and controlled by landlord. In Taylor, supra, the court reversed a summary judgment for the defendant which was based on the trial court's view that the exculpatory clause in the lease effectively barred recovery by the plaintiff.

In view of the above case citations, it is clear that the trial court could not have...