Tropicana Pools, Inc. v. Boysen, T--198
| Decision Date | 25 June 1974 |
| Docket Number | No. T--198,T--198 |
| Citation | 296 So.2d 104 |
| Parties | TROPICANA POOLS, INC., a Florida corporation, Appellant, v. John E. BOYSEN and his wife, Cordula A. Boysen, Appellees. |
| Court | Florida District Court of Appeals |
J. Richard Knop, of Mateer & Harbert, Orlando, for appellant.
Edwin C. Cluster, of Ayres, Swigert, Cluster, Tucker & Curry, Ocala, for appellees.
We here review a final judgment entered pursuant to a jury verdict in favor of plaintiffs below, appellees here.
Some weeks prior to July 22, 1970, the plaintiffs contacted several swimming pool companies in Central Florida for bids on the swimming pool which they desired to have installed at their new home which they were about to have built in Ocala. After receiving bids from several swimming pool companies they chose the defendant (appellant here) because they had previously heard of it and believed it to be a reliable company. The defendant's bid was not the lowest, but the plaintiffs chose the defendant because of its general reputation for good work. After negotiations, the plaintiffs and the defendant entered into a contract which called for a cash purchase price of $6,000.00 and which contained a detailed account of the responsibilities of each of the parties. It was totally and completely drawn by the defendant and the plaintiffs simply affixed their signatures. In addition to the work to be performed pursuant to the written contract, the defendant orally agreed to put in additional 'decking' to extend around the area of the pool and join the house. The price agreed upon for the latter was to be approximately $1,300.00 in cash.
The defendant is a large corporation whose business is the installation of swimming pools in Brevard, Marion, Orange and Volusia Counties. The defendant holds itself out as a company which has expertise in the construction and installation of swimming pools. The plaintiff John E. Boysen is and was a medical doctor who is now the County Health Officer in Marion County. The plaintiffs have no expertise nor experience in the field of constructing and installing swimming pools.
The construction of the plaintiffs' pool began in the month of September, 1970, and was completed near the end of December, 1970. At the time of completion, employees of the defendant came to the plaintiffs' home and showed Dr. Boysen how to operate the pool. He was then given a 'Lifetime Structural Guarantee', which he had never seen before and of which he was unaware until it was presented to him at that time. The 'Lifetime Structural Guarantee' was not mentioned in the original contract. The pool, at this point, worked satisfactorily. The plaintiffs paid approximately $7,300.00 in cash for the pool and decking area.
Within a few weeks after completion of the pool, the plaintiffs noticed that there were cracks in the tile and that the pool was losing water. The water loss was approximately 400 gallons of water per day. Later a large crack, approximately one-half inch wide, appeared in the decking and eight or ten of the tiles around the edge of the pool dropped off the side into the water. The crack stretched from the pool across the decking to the corner of the plaintiffs' house. By October 21, 1971, approximately ten months after installation, the pool was losing 900 gallons of water every six to eight hours which, if the pool was filled, amounted to 2,700 gallons of water a day. The defendant responded to the plaintiffs' complaints by replacing the tiles and little else. The plaintiffs informed defendant that the 'skimmer', which cleans the pool, would not work because the loss of water brought the level too low, but the condition was not remedied and only unsatisfactory solutions were suggested. The plaintiffs traveled to Orlando seeking a solution to the problem but the defendant responded with only a temporary patch-up job, and following further complaints continued to patch up the pool without permanent results. The plaintiffs had requested help at least once a month. At the end of one year, the defendant refused to do anything further and told the plaintiffs that they should fix the pool. On the date of trial the pool leaked 900 gallons of water every six to eight hours, tile fell off occasionally, and the cracks in the deck and in the pool remained.
The real issues for decision in this case, as presented by appellant, are whether the greater weight of the evidence showed: (1) that the pool was defective; (2) that the plaintiffs sustained legally recoverable damages as a result of the defectiveness of the pool; and (3) that the defendant was legally liable for the defects and damages suffered by the plaintiffs.
The evidence overwhelmingly proved that the pool was defective. Testimony and documentary proof were introduced to show that: (1) the pool lost thousands of gallons of water over the period running from its construction to the date of trial; (2) the shell of the pool had unsightly cracks in it; (3) the tile constantly fell off; (4) the decking cracked and caused the house to crack; (5) the pool tilted giving it an odd appearance; and (6) the skimmer action in the pool would not perform leaving the pool with trash and debris on its surface. The defendant introduced nothing to rebut such evidence. The only evidence presented by the defendant related to an examination by Charles L. Myster, a registered professional engineer who was hired by the defendant to determine whether there were subsoil defects in and around the pool. He testified that he found there were subsoil defects. In response to questions by defendant's counsel about whether blasting, big trucks and buildings could cause alterations in the subsoil, Mr. Myster answered that they most definitely could. This proved nothing because there was no evidence to show that either before or after the pool was constructed any blasting occurred, big trucks rolled by, or that extensive building took place. It is clear that the pool was defective.
The next question is whether the plaintiffs sustained damages as a result of the pool's defectiveness. The...
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