68 Fla. 208 | Fla. | 1914
Lead Opinion
(After stating the facts) — This action is brought under Sections 3145 and 3146 of the General Statutes of 1906, to recover “such damages as the party entitled to sue may have sustained by reason of the death of the párty killed.” When the decedent could have recovered for her injury if her “death had not ensued,” then her administrator has a right of action under the statute, the decedent leaving no husband or minor child, nor any person dependent on her for a support. The question here is the right to recover, not the amount of the “damages * * * sustained by reason of the death.” Jacksonville El. Co. v. Bowden, 54 Fla. 461, 45 South. Rep. 755, 15 L. R. A. (N. S.) 451.
When this alleged cause of action accrued, the following statute had been enacted:
“Chapter 6189 —(No. 70).
AN ACT to Eequire Persons, Firms and Corporations Maintaining and Operating Public Bath Houses, Bathing Pavilions, and Other Similar Places at Seaside Eesorts, to. Maintain Life Lines and Life Eafts for Protection of Bathers and Providing a Penalty for Failure to do so.
Be it Enacted hy the Legislature of the State of Florida:
Section 1. Any person, persons, firm or corporation operating or maintaining public bath houses, bathing pa
Sec. 2. Any person or persons, and the officers of any corporation violating the provisions of Section 1 of this Act shall be subject to a fine of not more than five hundred dollars or by imprisonment in the county jail of not more than six months, or by both such fine and imprisonment at the discretion of the court.
Approved May 23, 1911.”
The effectiveness of this statute as defining a crime and prescribing a penalty for the offense cannot be considered here, but the policy of the statute has its influence upon the general principles of law applicable to the duties and correlative liabilities of persons engaged in business as is alleged in this case,, even though the particular things required to be done may not have been required at common law. The statute recognizes the use of the public waters of the State, “by persons, firms and corporations who are” “operating or maintaining public bath houses, bathing pavilions, or other similar places, where bathing suits are furnished for hire or rent at the seaside resorts in the State of Florida,” and defines specific duties required of those who so use the public waters of the State, which specific .duties are designed to protect the patrons of the particular business and are not inconsistent with duties that may be imposed by implication of law upon those engaged in such business. ,
Where one assumes to offer the use of public waters for purposes of profit by establishing bath houses or dressing rooms, on. the shore-and furnishing-bathing suits for hire.
The liability proceeds from the duty imposed by law upon one who thus assumes to oiler the use of public waters for profit, to exercise due care to prevent injury to patrons who without fault use the waters in the customary way. One will not be permitted to establish for profit a business of furnishing facilities and inviting persons to use public waters for bathing or swimming and to escape liability for injuries caused by the unsafe condition of the premises so used, of which unsafe condition the patron may not know or have due appreciation, but of which proprietor of the business should know. The patron has a right to rely upon the due performance of the implied legal duty of the one furnishing the facilities and extending the implied invitation to use the premises, to keep the same in a reasonably safe condition or to give due warning as to and protection against dangers. Though the waters- are public and no governmental authority be expressly given to so offer them for use, one who assumes to so offer the use of the waters also assumes the legal duties and liabilities that are commensurate with such offer of the use. The nature of the use fixes the duties and correlative liabilities. An invitation may be implied from a continued and general custom in using the premises by the patrons of the business. The nature of
It may not be presumed from an injury that the keeper of the place failed to do his legal duty and consequently was negligent; but negligence of the keeper that proximately caused the injury must be duly alleged and proven; and any applicable contributory negligence on the part of the person injured will bar a recovery for a merely negligent injury. In determining whether the injured person is guilty of contributory negligence the practical capabilities of such person for self-protection under the particular circumstances should be considered, together with facts if any that should charge the keeper of the place or his employees with notice or knowledge of the same, when the injured person was invited to use the premises.
If a negligent failure to perform a statutory or a common law duty with reference to the safe condition of the premises customarily used by the patrons of a particular business enterprise, is a proximate caq$e of an injury to a patron who is not guilty of contributory negligence, the proprietor of the business may be liable in damages for such negligent injury.
It is alleged that the defendant “was operating and maintaining a certain public bath house and bathing pa vilion where bathing suits were furnished for hire or rent at Pablo Beach, a seaside resort in the State of Florida; * * * that the defendant had exclusive control and management of said bath house and bathing-pavilion; that said bath house and bathing pavilion was situated at or near the waters of the Atlantic Ocean at said Pablo Beach; that said defendant extended an invitation to the public to rent from him bathing suits and
The facts alleged as .to the relation of patron and opera tor of a public bath house and bathing pavilion at a,seaside resort, where bathing suits are furnished for hire, make it under the quoted statute a breach of duty for the defendant operator of a public bathing place to “negligently and carelessly fail to provide and maintain proper and safe life lines and life rafts for the protection of” his patrons. For this alleged breach of duty the defendant may be liable in damages, even if he is not liable for negligently and carelessly failing to provide proper supervision and proper persons and appliances to rescue his patrons in said waters customarily used by patrons, when such patrons are without their fault in danger of drowning. All of these precautions may be duties of the operator of the place who offers its use to the public if the circumstances make such precautions reasonably necessary or expedient for the safety to those who use the waters in the customary way. See Larkins v. Saltair Beach Co., 30 Utah 86, 83 Pac. Rep. 686, 3 L. R. A. (N. S.) 982, 8 Ann. Cas. 977; Boyce v. Union Pac. Ry. Co., 8 Utah 353, 18 L. R. A. 353; Bass v. Reitdorf, 25 Ind. App. 650, 58 N. E. Rep. 95; Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448; Turlington v. Tampa Electric Co., 62 Fla. 398, 38 L. R. A. (N. S.) 72, Ann. Cas. 1913 D. 1213, 1 Neg. & Comp. Cas. 490; Brotherton v. Manhattan Beach Imp. Co., 50 Neb. 214, 33 L. R. A. 598; Dinnihan v. Lake Ontario Beach Imp. Co., 8 App. Div. 509, 40 N. Y. Suppl. 764.
The defense of contributory negligence should be shown by the defendant
Ownership of premises is not essential to liability for injuries proximately caused by the dangerous condition of premises, the use of which is expressly or impliedly of
If at any time peculiar conditions at the usual place for bathing and swimming make the customary use patently or obviously dangerous, it may be contributory negligence to encounter the dangers. When the negligence of a plaintiff or those whom he represents contributes appreciably in producing the injury complained of the law affords'no right of recovery in the absence of a statute covering the case. If a patron who is injured is not free from fault both of omission and commission while using the bathing facilities, there can be no recovery of damages from the party who provides the facilities for hire and invites or offers the use of the waters, even though such party is negligent in performing his duty to the patron.
The declaration in this case is sufficient as a lawful basis for proofs consistent with the allegation of negligence in the performance of legal duties due to a patron from one who furnishes facilities and offers the use of public waters for bathing purposes. If negligence within the scope of the allegations is shown to have proximately caused the death of the plaintiff’s decedent, and such decedent was free from fault, there may be a recovery of damages in a proper amount as contemplated by the statute. See Florida East Coast v. Hayes, 67 Fla. 101, 64 South. Rep. 504.
The judgment is reversed.
Dissenting Opinion
dissenting:
I dissent from the opinion in this case because I do not think the administratrix has shown any right to sue and for a thorough discussion of my views, see dissenting opinion in the case of Jacksonville Electric Co. v. Bowden, 54 Fla. 461, text 477, 45 South. Rep. 755.