Rainbow Enterprises v. Thompson

• Decision Date: 15 June 1955
• Citation: 55 A.L.R.2d 861,81 So.2d 208
• Parties: RAINBOW ENTERPRISES, Inc., a Florida corporation, Appellant, v. Estelle Louise THOMPSON and Williard C. Thompson, her husband, Appellees.
• Court: Florida Supreme Court

Page 208

81 So.2d 208

55 A.L.R.2d 861

RAINBOW ENTERPRISES, Inc., a Florida corporation, Appellant, v. Estelle Louise THOMPSON and Williard C. Thompson, her husband, Appellees.

Supreme Court of Florida, Division B.

June 15, 1955.

Fowler, White, Gillen, Yancey & Humkey and Henry Burnett, Miami, for appellant.

Rosenhouse & Rosenhouse and Irving E. Dunn, Miami, for appellee.

THORNAL, Justice.

On September 17, 1952 during mid-afternoon appellees were paying patrons of Rainbow Gardens, a scenic tourist attraction operated by appellant near Dunnellon. The Gardens offer restaurant facilities, boating, swimming, scenic trails, landscaped grounds, and could be described generally as rustic in appearance and development. The restaurant building is approached from the north by a stairway leading to a terrace more or less surrounding it. From this terrace there is a second stairway leading to a lower terrace. From the latter there is a third stairway down to a path leading to the boathouse.

The steps of the first and second stairways are 'capped' with cement while those comprising the third stairway are made of natural rock. The first terrace was leveled over with cement according to a picture exhibited in evidence, while according to the testimony the second terrace was surfaced with natural rock. The alleged injury to appellee, Estelle Louise Thompson, occurred when she was descending the third stairway and apparently tripped when the heel of her shoe caught in a depression variously described as a 'hole', a 'crevice' or a 'concave surface' about six inches long and about one inch deep at the center. The width is not shown.

Appellees had never before visited Rainbow Gardens and the only time prior to the injury that they traveled over the stairs described was on their way down to the boathouse. There was no evidence of any warning sign suggesting any possibility of danger at any place described in the record. Other evidentiary matters will be summarized in our discussion of the assignments of error.

For the injuries received when she allegedly tripped and fell down the third flight of stairs, appellee Estelle Louise Thompson sued appellant, and was joined by her husband who claimed damages for expenses, loss of consortium, etc. Appellees claimed that appellant was negligent in failing to maintain the steps in a good and usable condition or in the alternative in maintaining the steps in a dangerous and hazardous condition without warning of such condition. Appellant denied negligence and claimed contributory negligence on the part of Mrs. Thompson. Appellant offered no testimony but relied entirely on cross-examination of appellees' witnesses to sustain its position.

Over the objection of appellant the Circuit judge let the cause go to the jury which brought in a verdict of $4,000 for the wife and $800 for the husband. From a denial of a motion for a new trial appellant appeals seeking reversal on the grounds that appellee-wife was guilty of contributory negligence as a matter of law; that the evidence of negligence was insufficient to justify submission to a jury; that permitting evidence of the condition of the first and second stairways created a harmful collateral issue and that an instruction to the jury requested by appellees and hereafter quoted was an erroneous statement of the law applicable.

The questions of contributory negligence and the sufficiency of evidence of negligence may be discussed together.

Appellant contends that under the circumstances shown, the appellee-wife being a lady 45 years of age, weighing 160 pounds, and carrying a pocketbook and a camera when she walked down the steps in question, was guilty of contributory negligence because she testified that she was 'not particularly looking at the steps as (she) went down them' and that she was looking just 'out and around'.

The surrounding circumstances and the relationship of the parties are always elements to consider in cases of this nature. Appellant was in the position of a public attraction that invited people, for a fee, to visit the gardens, eat at the restaurant, take a boatride, go swimming and generally enjoy the scenic trails and beautiful grounds. This invitation the appellees accepted along with others. Actually, the attractiveness of the locale was such that people would normally and naturally just look 'out and around.' True, the terrace from which appellees descended was surfaced with rough rock but the record shows also that the other stairways which appellees had just previously used were 'capped' or smoothed over with cement suggesting the probability of similar treatment of the third flight.

There appears to be no doubt that the 'hole', or 'crevice' or 'concave surface' existed in the step where appellee-wife tripped and fell. Whether, under the circumstances of this case, appellant should have warned against the change in the surface of the steps, or should have 'capped' the third flight with cement, as it did the first two, or, whether appellee-wife should have noticed the defect or been sufficiently put on notice by the surface of the terrace from which she descended, are all elements which appropriately were delivered to the jury as reasonable men to determine the existence of...