Zambito v. Southland Recreation Enterprises, Inc., 79-1596
| Court | Court of Appeal of Florida (US) |
| Citation | 383 So.2d 989 |
| Docket Number | No. 79-1596,79-1596 |
| Parties | James B. ZAMBITO and Aurora S. Zambito, his wife, Appellants, v. SOUTHLAND RECREATION ENTERPRISES, INC., d/b/a Southland Roller Palace; FederalInsurance Company; and Midland Insurance Company, Appellees. |
| Decision Date | 28 May 1980 |
Page 989
v.
SOUTHLAND RECREATION ENTERPRISES, INC., d/b/a Southland Roller Palace; FederalInsurance Company; and Midland Insurance Company, Appellees.
Julian D. Clarkson, Steven D. Merryday and C. Steven Yerrid of Holland & Knight, Tampa, for appellants.
Stephen F. Myers of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellees.
HOBSON, Acting Chief Judge.
James B. and Aurora Zambito, husband and wife, appeal a final order dismissing their third amended complaint with prejudice. We reverse.
Southland Recreation Enterprises, Inc. operates a roller-skating facility which is open to the general public for a specified fee. In August, 1978, Mr. Zambito visited Roller Palace for the first time. An employee of Roller Palace organized a game of "follow the leader" during which each skater
Page 990
closely follows the skater in front of him. The employee led the line of skaters from the designated skating area onto an elevated, carpeted refreshment area. Mr. Zambito and the other skaters followed the employee around the tables and chairs in that area. As the skaters skated by a different route off the elevated area and stepped down six inches to the skating surface, Mr. Zambito fell, suffering a broken leg and other injuries.The Zambitos' third amended complaint asserted a cause of action based upon the theories of respondeat superior, premises liability and loss of consortium. Southland filed a motion to dismiss for failure to state a cause of action. In granting the motion to dismiss, the court stated:
Plaintiff must have known that that which goes up must come down, and consequently at the time of his fall, his knowledge was equal to that of defendant concerning the change in floor elevations. He was equally aware of lighting conditions . . . .
Equally known to plaintiff was the danger of falling while roller-skating . . . .
The court further stated that it did not consider the doctrine of "assumed risk", but relied on the decisions in Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976); General Development Corp. v. Doles, 309 So.2d 596 (Fla. 2d DCA 1975), and Jahn v. Tierra Verde City, Inc., 166 So.2d 768 (Fla. 2d DCA 1964).
In 1973, the supreme court established the doctrine of comparative negligence in Florida and held that a plaintiff was no longer barred from recovery because of his contributory negligence. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Specifically declining to dissect and discuss all possible variations of comparative negligence, the court left it to the lower courts to deal individually with the viability of other defenses based on plaintiff's negligence.
Implied assumption of risk was the next absolute...
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Scott v. Rizzo, 13235
...that the fears of administering the doctrine are greater than the reality. Indeed, in Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla.App.1980), and Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), the Florida courts have ably dealt with some of these presumed difficultie......
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Groleau v. Bjornson Oil Co., Inc., 20030171.
...relevant to plaintiff's contributory negligence)."); and id. at 1133 n. 84 (citing "Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989, 991 (Fla.Dist.Ct.App.1980) (stating that the entrant's knowledge of the danger would be relevant to his own comparative negligence, but would......
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Cassel v. Price, XX-15
...and dissenting opinion in Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979). Compare with Zambito v. Southland Recreation Enterprises, 383 So.2d 989 (Fla. 2nd DCA 3 Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3rd DCA 1980), (summary judgment affirmed, no foreseeability); Phillips ......
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Kopf v. City of Miami Beach, 92-2800
...v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980), review denied, 389 So.2d 1113 (Fla.1980); Zambito v. Southland Recreation Enters., Inc., 383 So.2d 989 (Fla. 2d DCA 1980). It should also be noted that, if the defective condition were not plainly visible, the defendant would then invoke the ......