Zambito v. Southland Recreation Enterprises, Inc., 79-1596
| Decision Date | 28 May 1980 |
| Docket Number | No. 79-1596,79-1596 |
| Citation | 383 So.2d 989 |
| 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. |
| Court | Florida District Court of Appeals |
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.
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 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:
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.
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 defense to fall in the case of Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), in which the court held that this defense "merged into the defense of contributory negligence and the principles of comparative negligence . . . apply in all cases where (implied assumption of risk) is asserted." 348 So.2d at 293.
This court refused to allow the "patent danger" or "open and obvious hazard" doctrine to preclude a manufacturer's liability in a products liability action. Jones v. Auburn Machine Works Co., 353 So.2d 917 (Fla. 2d DCA 1977), aff'd, Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979). In its affirmance of Judge Ryder's opinion, the supreme court said, "The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users."
This brings us to the question of the status of the "patent danger" defense in a landowner/business invitee situation. It has long been the rule that a landowner or occupier owes two duties to an invitee on his premises: 1) to use ordinary care in keeping the premises in a reasonably safe condition, and 2) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee. Waterman v. Graham, 228 So.2d 925 (Fla. 2d DCA 1969).
Although Florida courts have traditionally adhered to the rule that a business invitee's equal or superior knowledge of a hazard discharges the landowner's duty to warn, recent decisions have questioned the viability of the patent danger defense in light of Hoffman v. Jones. The Fifth District Court of Appeal recognized the problem in the case of Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). In that case the plaintiff had...
To continue reading
Request your trial
-
Scott v. Rizzo
...California courts 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 pr......
-
Groleau v. Bjornson Oil Co., Inc.
...was only 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, ......
-
Cassel v. Price
...1st DCA 1980), 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 1980).3 Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3rd DCA 1980), (summary judgment affirmed, no fores......
-
Kopf v. City of Miami Beach
...Dade County 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......
-
Liability for negligently disabling or failing to repair a traffic signal: absolute immunity in the Third District?
...Ferber v. Orange Blossom Center, Inc., 388 So. 2d 1074, 1075 (Fla. 5th D.C.A. 1980); Zambito v. Southland Recreation Enterprises, Inc., 383 So. 2d 989, 991 (Fla. 2d D.C.A. [5] The irony of the district court's language in Tribble should not escape notice. Perhaps the district court is corre......