Wet 'N Wild Florida, Inc. v. Sullivan

655 So. 2d 1171, 1995 Fla. App. LEXIS 5094, 1995 WL 275741
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 1995
DocketNo. 94-1181
StatusPublished

This text of 655 So. 2d 1171 (Wet 'N Wild Florida, Inc. v. Sullivan) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wet 'N Wild Florida, Inc. v. Sullivan, 655 So. 2d 1171, 1995 Fla. App. LEXIS 5094, 1995 WL 275741 (Fla. Ct. App. 1995).

Opinion

GRIFFIN, Judge.

This is an appeal of a jury verdict rendered against Wet ’n Wild Florida, Inc. (“Wet ’N Wild”) in an action for negligence brought by Deborah Sullivan (“Sullivan”).

Sullivan injured her back while pulling a young black woman (“the victim”), whom Sullivan believed was in danger of drowning, from the “wave pool” at Wet ’n Wild. Sullivan later underwent back surgery and then brought an action for negligence against Wet ’N Wild. The amended complaint alleged that employees of Wet ’N Wild had negligently failed to rescue the victim, who was in imminent danger of drowning, and that because of their negligence, Sullivan had been required to rescue her, resulting in injuries to her. Wet ’N Wild asserted that it had not breached any duty owed to Sullivan, that Sullivan was herself negligent and that the victim was negligent.

At trial, Sullivan testified that on the day of the accident she had taken her daughter and several friends to Wet ’N Wild. She was standing by the wave pool around 4:30 p.m. when the wave machine was turned on. As Sullivan looked on, the first of the waves tipped over a raft on which several girls were [1173]*1173sitting. Sullivan watched as the victim, who was one of the girls on the raft, “start[ed] doggie paddling and [she] thought, she shouldn’t be in this wave pool, she can’t swim.” Although the victim was only in two and a half feet of water, Sullivan said the victim was unable to surface when she got caught underneath the raft. As Sullivan screamed for help, the victim “bucked” underneath the raft but was still unable to surface, either because of the crowd or the waves, because she couldn’t swim, or because she was caught underneath the raft. Sullivan claimed that she was standing fifteen to twenty feet from a lifeguard station, but that when she glanced over, the station was empty. She continued to scream for help, but after a goodly amount of time had elapsed, and the victim still had not surfaced, she threw down her money and cigarettes and jumped in the water. She then shoved her way over to the victim, who weighed almost two hundred pounds, and “jerked her” off of the bottom. At this point, Sullivan claims the victim was “lifeless.” Sullivan was not joined by a lifeguard until after she had moved the victim about three feet. The two of them then dragged the victim until she was almost out of the water, where they were joined by other lifeguards. The victim walked to first aid and there is no evidence she suffered injury.

When asked how much time had elapsed between the time the victim fell off the raft and the point at which she jumped in the water, Sullivan testified:

I would say at least five minutes. It had to be because I kept screaming and screaming. And I had already looked for the lifeguard, I had already hit this guy. She had went through all these motions to try to bring herself up and was all the way over there, and I knew that there was no more time I could wait. I had to jump in and do it myself.

She later amended this testimony, stating:

The only thing I know is that there is no way it could have been less than two to three minutes because there was so much screaming and so many things that took place that would have naturally had to take time, and I didn’t want to panic. The thing was, I wanted to get somebody close to her because she was moving away from me. And I thought, even if I jump, she has a better chance of someone close to her lifting down and picking her up or getting her above water. So I — in fact, I thought that I had took actually a little bit too much time before I done something myself.

As part of her case, Sullivan offered the deposition testimony of John Fletemeyer, the head supervisor of beaches of the Palm Beach Police Department. Fletemeyer testified that Wet ’N Wild utilized the Ellis Associates procedures for lifeguards at their theme parks. Under this procedure, the lifeguard is expected to scan his zone in ten seconds, to identify any problem and to respond within twenty seconds. Fletemeyer opined that in this case the lifeguard simply missed the rescue, based in part on Sullivan’s testimony concerning the time frame when she saw the victim and the time when the lifeguard responded. Fletemeyer further testified that the lifeguard used an improper procedure in dragging the victim from the water and in failing to properly complete a written report detailing the incident by not including Sullivan’s name. According to Fle-temeyer, these things reflected negatively on Wet ’N Wild’s “overall ability to operate in a professional way.” Over objection, the court also permitted Fletemeyer to testify that certain identifiable groups of persons, including blacks, are more prone to drowning, so that lifeguards should be extra “sensitive” to then-needs and watch them more closely. During this testimony, Fletemeyer relied in part on a study conducted by a professor in Georgia, stating:

A. For many years I never quite understood it, but very recently a gentleman in Georgia, a professor, did a study, he is a black man himself, looking at certain anatomical characteristics of the black population. And he has found out what we have thought all along, is that blacks have different muscle densities.
Q. How about swimming, do black people swim?
A. They do, and this is something that I’m beginning to study and I’m applying [1174]*1174for a grant as we speak on the subject. Because of certain social cultural experiences, black people don’t have, there are always exceptions but most black people don’t have the opportunity to learn to swim as white people do. It costs money to go to the YMCA and take swimming lessons. And because of social economic reasons, they don’t have the opportunity, and that is probably another reason why more black people drown than white people.

We reverse and remand for a new trial because we conclude that it was error not to submit the issue of the victim’s negligence to the jury’s consideration. The trial court directed a verdict on Wet ’N Wild’s defense that the victim was negligent based on Sullivan’s argument there was no evidence of negligence:

What we have here requires this jury to speculate that this child was either a poor swimmer; maybe they will speculate she ate too big a lunch; speculate that being fat caused her not to be able to swim, I don’t know. But he has not produced one piece of evidence that this child was unreasonable, careless or negligent in getting in this pool. Nothing.
Even Wet ’N Wild’s corporate representative has not said, well, we have signs up there that say, if you’re a poor swimmer do not enter the wave pool. They haven’t testified that they have anything that prevents any child from entering this pool.
They have testified that we have a policy that children cannot enter the pool without their parents. So what he’s going to ask this jury to do is say this 13 or 14 year old child was negligent. Based on what? The fact that she got in trouble. That and that alone?

We agree with Wet ’N Wild that there was evidence from which the jury could infer that the victim was responsible, at least in part, for her own peril and the rescue that was necessitated because she had placed herself in peril. Sullivan contends that even assuming arguendo

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Bluebook (online)
655 So. 2d 1171, 1995 Fla. App. LEXIS 5094, 1995 WL 275741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wet-n-wild-florida-inc-v-sullivan-fladistctapp-1995.