McKinney v. Adams

Whitfield, J.,

(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 pavilions, or other similar places, where bathing suits are furnished for hire or rent, at the seaside resorts in the State of Florida, are hereby required to maintain at all times proper and safe life lines and life rafts for the protection of the bathers at such seaside resorts.

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. to persons who are expressly or impliedly invited to nse the bathing suits by bathing or swimming in the public waters, and a patron uses the waters in the usual and ordinary way consistent with the express or implied invitation, and without his fault, is injured because of the unsafe condition of the premises on which patrons are invited to bathe or swim, or because of the negligence of the proprietor in performing his duties to patrons, the one so offering the use of the waters for profit may be liable in damages for such injury.'

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 the use and the. extent of the premises covered by an implied invitation to use, may be determined by the continued and general custom of the patrons of the place.

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 to avail themselves of the dressing room and kindred facilities of the defendant at said pavilion; that the waters of the Atlantic Ocean situated directly in front of said pavilion and bath house and extending up and down the beach for a space of a few hundred feet on either side of said point directly in front of said bath house and pavilion where the facilities for bathing which the defendant offered to the patrons of his bath house and bathing pavilion; that said defendant, by renting said bathing suit, invited such members of the public as rented bathing suits from him, to avail themselves of the facilities aforementioned for bathing and to bathe in the waters of the Atlantic Ocean in front of and adjacent to the said pavilion as aforesaid; that said waters aforesaid were the waters customarily used by the patrons of said bath house, which the defendant well knew; that on, to-wit, July 7th, A. D. 1912, one Mary E. Proctor, did rent from the said defendant a bathing suit for a valuable consideration in that behalf; that it was the intention of the said Mar„y E. Proctor, which the defendant then and there well knew, then and there to bathe in the waters of the Atlantic Ocean adjacent to which the defendant’s said bath house and bathing pavilion was located, and which waters constituted the facilities for bathing offered to defendant’s patrons as aforesaid; that thereupon the said Mary E. Proctor did bathe in said Atlantic Ocean adjacent to said bath house and bathing pavilion; that while so bathing the said Mary E. Proctor remained within the limit of the waters of said Atlantic Ocean which constituted defendant’s facilities for bathing as aforesaid; that the defendant negligently and carelessly' failed to provide and maintain proper and safe life lines and life rafts for the protection of the patrons of its patrons, bathers at the said seaside resort, contrary to the Statutes of the State of Florida in such, cases made and provided; and also (2) that the defendant negligently and carelessly failed to provide suitable and proper persons to superintend, and tvatch over bathing in the waters customarily used by the patrons of said bath house, and in which waters deceased was bathing, and to watch over and superintend its, defendant’s patrons who were bathing in such waters; and also (3) “that the defendant negligently and carelessly failed to provide proper persons or appliances to rescue his patrons in the said waters customarily used by his said patrons, which constituted the facilities for bathing offered to such patrons by the defendant, and in which waters deceased was bathing, when such patrons were or might have been in danger of drowning; and also (4) that the defendant negligently and carelessly failed to provide a proper person or persons and to have such person or persons present on behalf of said defendant to search for and recover any of the patrons of said bath house, when such patrons were bathing in the waters customarily used by said patrons and which constituted the facilities for bathing offered said patrons by the defendant in which waters deceased was bathing, when such persons were or might have been in danger of drowning; that by reason thereof and by reason of the carelessness and negligence of the defendant the said Mary E. Proctor was then and there drowned in the waters of the Atlantic Ocean, near the bath house and bathing pavilion of the defendant, and while within the waters of the Atlantic Ocean in which the defendant invited its patrons to bathe; that the said Mary E. Proctor died leaving neither husband nor minor child or children nor any person or persons dependent upon her, the said Mary E. Proctor, for support ;• that the said Louise McKinney, plaintiff, was heretofore, on to-wit, the seventeenth day of July, 1912, duly appointed as Ad ministratrix of the estate of Mary E. l’roctor.”

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 offered to others. Liability may be imposed upon those .who offer the use of premises under such circumstances as raise a legal duty to those who accept the offer and are injured because of the dangerous condition of the premises, where the negligence of the injured party does not contribute to the injury.-

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.

Shackleford, C. J., and Taylor and Cockrell, J. J., concur. Hocker, J., dissents.