Jonathan Boyce (f. Gordon Boyce, Administrator of the Estateof Jonathan Boyce, Deceased, Substituted in Theplace and Stead Of), Plaintiff-appellee, v. Pi Kappa Alpha Holding Corporation, Defendant-appellant, 476 F.2d 447 (5th Cir. 1973)

This is an appeal from a Florida common law negligence action which was removed from the Florida State court to Federal District Court on grounds of diversity jurisdiction. The complaint alleged that plaintiff-appellee Jonathan Boyce on July 20, 1970, was an invitee at the Pi Kappa Alpha Fraternity House on the University of Miami campus (hereinafter "Pike House"), premises owned by defendant-appellant Pi Kappa Alpha Holding Corporation, and that as a result of defendant's negligence, plaintiff was caused to dive into an empty swimming pool and to sustain paralytic injuries. The cause came on for trial by jury on October 13, 1971. After several days of testimony special interrogatories were submitted to the jury which required them to determine the status of the plaintiff on defendant's property, the negligence of the defendant, and the degree of negligence, if any. The jury determined that plaintiff's status had been that of an invitee, that defendant had been negligent, and that defendant's conduct constituted willful and wanton negligence, the latter determination precluding a jury finding on the question of plaintiff's contributory negligence.¹  The plaintiff was awarded damages in the amount of $850,000.

On appeal from that verdict, and judgment thereon, the defendant-appellant here asserts numerous points of error. Resolution of this appeal must necessarily commence with a recitation of the facts surrounding this most unfortunate event.

On July 20, 1970, plaintiff-appellee Boyce was a student at the University of Miami in Coral Gables, Florida, and a member of the Phi Delta Theta social fraternity. Then 23 years old, he was attending the university's summer session. At approximately 2:00 P.M. on that date plaintiff, his fraternity roommate Charles Parker, and several others went to the Varsity Inn, a student beer parlor which they frequented, on the average, once or twice weekly. The small group remained at the Inn until 5:30-6:00 P.M., socializing and drinking beer. The beer was purchased primarily in pitchers measuring approximately twelve inches high by six to seven inches wide. Although plaintiff could not recall precisely the amount of beer he consumed during this 3-3 1/2 hour period, he testified at trial to having drunk more than five glasses (Trial Transcript, hereinafter "Tr.", at p. 571), while his roommate testified that he himself had consumed "a pitcher or two" (Tr. at 223). Other testimony established that plaintiff ate nothing from noon onwards that day. At approximately 6:00 P.M. the group decided to take up a collection among themselves and to purchase a 15 1/2 gallon keg of beer, for consumption that evening. The keg was bought and set up at the Phi Delta Theta house and the small group, including plaintiff, at 7:00-7:30 P.M., resumed the drinking begun in the early afternoon at the Varsity Inn. At 8:30 P.M. plaintiff's girl friend, Nancy Lindberg, arrived at the party with her roommate, Susan Bowen. Miss Lindberg testified that, during the time she was present, she observed plaintiff consume "four or five" twelveounce cups of beer. (Tr. 261, 277). The plaintiff testified that he could not recall the precise quantity he had consumed during the evening.

At approximately 11:30 P.M. either plaintiff or Parker suggested that they and the girls go to the Pike House, two blocks distant and the only fraternity on campus having a swimming pool, for a late night swim. Apparently, all intended to swim dressed in street clothes. (Tr. 231). The group departed for the Pike House, plaintiff carrying Miss Bowen draped over his shoulder, and Parker and another (one "Dennis") carrying Miss Lindberg between them, their hands and arms in chair-like fashion. The plaintiff and Miss Bowen arrived at the darkened pool area several minutes before the other three. Playfully, Boyce threatened to throw Miss Bowen into the pool, but protesting, she was able to persuade him to set her down. He placed her down, apparently with his back to the pool, and then he either dived or jumped into an empty pool, at a depth of four to five feet, landing on his back.²  On hitting the pool floor plaintiff instantaneously severed his spinal cord, causing virtual total paralysis from the shoulders down.³ 

At trial the theory of plaintiff's case was (1) that plaintiff had been an invitee on the defendant's premises, by virtue of defendant's express and implied invitations to plaintiff to use the swimming pool;⁴  (2) that although plaintiff had never used the pool he had seen it full numerous times in the past and had no knowledge that the pool lacked a filter system, which necessitated that it be fully emptied for purposes of cleaning; (3) that defendant was negligent in constructing and maintaining its pool in violation of a city ordinance,⁵  in not providing adequate lighting around the pool area, and in not giving some warning (e. g., fencing the pool off during the emptying procedure) to indicate that the pool was dry and in a hazardous condition; (4) that defendant's negligence was the proximate cause of the injury, and that the negligence was of a "willful and wanton" nature; and (5) that plaintiff could thus recover for past and future medical expenses, loss of future earnings, and pain and suffering.

While denying that it was negligent in any way, defendant raised the affirmative defense that plaintiff, a trespasser, or at best a licensee, on its property, had been contributorily negligent in failing to exercise due care for his own safety.⁶  Defendant argued that, although the pool area was quite dark, the light provided by nearby street lamps and the moon was sufficient to enable plaintiff to have seen that the pool was empty, had he bothered to look;⁷  that, although violation of the city ordinance (failure to fence and lock the pool) constituted negligence under Florida law, the totality of the circumstances involved, as a matter of law, could in no way support a finding of willful and wanton negligence; that the issue of willful and wanton negligence, as a matter of law, should thus be withheld from the jury; and that the issue of contributory negligence was for jury determination.

Because in arriving at its verdict the jury did not determine the question of plaintiff's contributory negligence (see Special Interrogatories, note 1, supra), and because we rule that the Trial Judge erred in submitting the issue of willful and wanton negligence to the jury, we reverse the judgment below and remand the cause for a new trial, with instructions as indicated hereafter.

We note at the outset that Florida law controls. Analyzing the evidence in a light most favorable to the plaintiff-appellee, as we must upon a challenge to the sufficiency of evidence to support the jury verdict, Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), we are of the opinion that the facts recited do not support a finding of willful and wanton misconduct by defendant. It is well settled that whether or not the totality of a situation evidences gross negligence or willful and wanton misconduct is a jury question, subject, however, to an initial determination by the trial judge that sufficient evidence exists to justify submitting the issue to the jury. Hodges v. Helm, 222 So. 2d 418, 420 (Fla.1969); Carraway v. Revell, 116 So. 2d 16, 22 (Fla.1959); Cormier v. Williams, 148 Fla. 201, 4 So. 2d 525, 526 (1941). The narrow issue we must here determine is whether the conduct of defendant meets the test of "willfulness and wantonness" established by Florida law. Although numerous jurisdictions have abandoned attempts to distinguish among degrees of negligence, see 57 Am.Jur. Sec. 94 and cases there cited, Florida apparently continues to hold fast to its common law tradition. Recent Florida decisions⁸  have drawn fine distinctions among the traditional categories of negligence: (1) "ordinary negligence"; (2) "gross negligence"; and (3) "willful and wanton negligence", the latter being considered a "more culpable" form of misconduct, that is, conduct which is more in the nature of an intentional wrong. In Carraway v. Revell, supra, the Supreme Court of Florida attempted the admittedly difficult conceptual task of defining the "degrees" of negligence inherent in the just stated categories. After assigning each to its comparative level of culpability by noting that "gross negligence * * * is that kind or degree of negligence which lies in the area between ordinary negligence and willful and wanton misconduct," the court quoted from an earlier opinion, Bridges v. Speer, 79 So. 2d 679, 682 (Fla.1955):

We think the rule which would more nearly solve the problem than any other would be one which recognized that simple [ordinary] negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or "clear and present" that negligence is gross, whereas other negligence would be simple negligence. 116 So. 2d at 22-23. (emphasis in original.)

If, as the quoted language indicates, a finding of gross negligence requires knowledge, actual or constructive, by the actor that injury to another is imminent or "clear and present", then, a fortiori, a finding of willful and wanton negligence under Florida law must meet the knowledge requirement, and more. In a more recent case, Glaab v. Caudill, 236 So. 2d 180, 184 n. 13 (Fla.D.C.A.2, 1970), the court stated:

Since Carraway v. Revell, * * * we now perceive "willful and wanton" conduct to be criminal negligence, amenable to punitive redress, whereas gross negligence as such is necessarily something less. We therefore distinguish a "conscious disregard of consequences" [gross negligence] from that "wantonness or recklessness, * * * or that reckless indifference to the rights of others which is equivalent to an intentional violation of them. (emphasis in original.)

Extracting from these pronouncements the essential elements of willful and wanton misconduct, we note that (1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights. See 57 Am.Jur.2d, Negligence Secs. 101-105, 65 C.J.S. Negligence Sec. 63(38).

To take our analysis a step further, the cases teach that willful and wanton negligence may be of two types: (1) that involving an affirmative act by the defendant; and (2) that involving a failure to act, or an act of omission, by a passive defendant. The first type is the more usual, as, for example, the conduct we dealt with in Horne v. Georgia Southern & Florida Ry., 421 F.2d 975 (5th Cir. 1970), where the defendant railway company was found to be willfully and wantonly negligent when its trainman overtly (affirmatively) backed a train over a busy pedestrian crossing, failing to keep a lookout (reckless disregard) despite prior express warnings (actual knowledge) that injury was likely to result at the crossing. The train hit, then dragged to death, the plaintiff's wife. We said there, quoting from an early Florida Supreme Court opinion:

Where a party has inflicted an injury intentionally, or where it has been done through negligence, and hence unintentionally, and his conduct in doing it has been wanton or reckless of its injurious consequences, the contributory negligence of the person injured is not a defense to an action brought by him for such injury. [citations omitted] 421 F.2d at 980.

In the cases involving a defendant's failure to act, the conduct of the passive defendant has been held to be willfully and wantonly negligent only if the totality of the circumstances involved warrants such a finding; for example, if the actor knows that injury will likely result from his failure to take steps to correct a known danger on his property. See City of Boca Raton v. Mattef, 91 So. 2d 644, 648 (Fla.1956); Banks v. Young Men's Christian Ass'n of Greater Miami, 176 So. 2d 570, 571 (D.C.A. 3), cert. denied, 183 So. 2d 213 (Fla.1965). In City of Boca Raton the court, denying recovery for an alleged wrongful death of plaintiff's husband, held that a property owner's failure to act constitutes willful and wanton negligence only if the owner has knowledge of the danger or hazard, and knowledge that the plaintiff is about to be confronted with the danger. 91 So. 2d at 648. Similarly, in Banks the defendant had failed to provide handrails or safety devices on stairs, allegedly in violation of a municipal ordinance, just as here the appellant violated the city swimming pool ordinance; the plaintiff, a licensee, was injured as a result of a fall on slippery stairs. The court held that defendant's violation of the ordinance and its failure adequately to protect the plaintiff fell short of willful and wanton negligence. 176 So. 2d at 571. See also Britz v. LeBase, 258 So. 2d 811, 813-814 (Fla.1972).

It is clear to us from the authorities cited that the appellant's conduct in the instant case similarly falls short of willful and wanton negligence. We reach this conclusion by noting that the facts presented fall into the "failure to act" or "failure to protect" category of cases-plaintiff's injury resulted from a condition on defendant's premises, and not from an overt or affirmative act by defendant. Although defendant might have been held liable for negligence in failing to provide adequate lighting, in failing to fence in and lock its pool (in violation of the ordinance), and in failing to give adequate warning that the pool was dry and thus hazardous during the cleaning operation, we do not perceive here the "reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights" necessary under Florida law for a finding of willful and wanton negligence. In summary, the facts will not support a conclusion that defendant had a design, purpose, or intent to cause the injury here incurred or that there was a knowing and intentional failure on defendant's part to perform such acts as might have prevented the injury. We hold that it was error for the court below to submit the issue of willful and wanton negligence to the jury when the evidence, as a matter of law, did not support a finding of that degree of negligence.

While the tragedy inherent in the facts presented evokes the sympathy of this Court, the case should have been submitted to the jury with instructions based upon those principles of negligence law applicable to the evidence adduced. We have noted the other points raised by appellant and we are of the opinion that their resolution should properly be reserved for retrial below. The judgment appealed from is, therefore, reversed, and the cause is remanded for a new trial not inconsistent with the conclusions we have reached.

JOHN R. BROWN, Chief Judge (concurring):

I concur fully in the Court's decision and Judge Moore's opinion for us. As this case points up a procedural problem of great importance and in which I have taken a special interest, I offer this concurrence in which my Brothers also join. I add this only to point out once again the remarkable utility of the general charge with special interrogatories under F.R.Civ.P. 49(a). See, Brown, Federal Special Verdicts: The Doubt Eliminator, 1968, 44 F.R.D. 338.

What sets this case apart is that the trial judge-probably from an unfamiliarity with this device born out of a local traditional submission on a general charge, general verdict structure-went both too far and not far enough. The result is that the case must now be remanded for a wholly unnecessary retrial and probably a second and likewise unnecessary appeal. Added to this deficiency, which springs from the way the special interrogatories were structured⁹  when used with a general verdict,¹⁰  it was (albeit unknowingly) transformed from a 49(a) to a 49(b) verdict with all the shortcomings of that ancient and now discredited method.¹¹ 

The resourceful trial judge was certainly on the right track in using interrogatories. But where he did not go far enough was in structuring the question on contributory negligence (Int. No. 5) to a "no" answer to wanton or willful (Int. No. 4). For since we have now held that there is sufficient evidence to sustain the finding of simple negligence (Int. No. 2) with proximate cause (Int. No. 3) we would be able to put this case to rest once and for all had the jury been allowed to answer contributory negligence (Int. No. 5) independent of the answer to wanton/willful (Int. No. 4).

Had there been no conditional submission to Int. No. 5 a "yes" answer, in view of our legal holding on insufficiency of wanton/willful, would now result in a complete reversal and rendition. On the other hand, a "no" answer would permit us to affirm the judgment on the basis of simple negligence.

Conditional submission is sometimes appropriate and occasionally required.¹²  But where there is a possibility both factually and on legal theories of synthesizing a valid verdict for or against a particular party conditional submission should be carefully avoided.

That was the case here. For it was foreseeable that (i) upholding a wanton/willful verdict would be a formidable (and now unsuccessful) task, (ii) the jury, independent of what it did on wanton/willful or what might happen to the finding on J.N.O.V. or appeal, could (and did) find simple negligence, and (iii) at the same time find no contributory negligence. The legal theories on wanton/willful and simple negligence/contributory negligence were distinctly separate. What the Judge needed was answers on the critical facts of each theory. He could then enter a judgment corresponding to those fact-findings and we, on appeal, could affirm, modify or reverse the judgment according to whatever disposition the law would require if one or more of the distinctive findings were set aside as a matter of law.

In this day and time of explosive docket increases it is unfortunate that one of the busiest trial courts in the Fifth Circuit must now re-try the whole case on simple negligence and damages with a prospect of a second appeal to this court whose docket has exponentially increased over 400% since 1960.¹³ 

But as with life generally this squandering of precious judicial resources may turn out to be a blessing. This and other recent cases¹⁴  point up sharply the oft-times simple structural changes which would make the 49(a) special interrogatory verdict complete for whatever adjustments the law demands.

Finally, the use of special interrogatories and a general verdict is not only fraught with hazards while all the while depriving the court of the flexibility of 49(a), its use is wholly unnecessary. For if, as is likely, the Judge cast it in this form as a means of having the jury fix the amount, if any, of damages, that could more readily be done by adding as Int. No. 7 a simple inquiry to state the answers in dollars.

The 49(a) verdict is indeed the doubt eliminator. Marvelous as it is with an elasticity which allows the Court to deal with nearly every contingency it is both a blessing and a burden. For the travail of anticipating all of the likely contingencies and then constructing the verdict in a way which will permit the jury intelligently and purposefully to supply the answers rests squarely on the trial court.¹⁵  See, Rorem v. Halliburton Oil Well Cementing Co., 5 Cir., 1957, 246 F.2d 427, 432; R. B. Company v. Aetna Insurance Company, 5 Cir., 1962, 299 F.2d 753, 759 and Barrios v. Louisiana Construction Materials Company, 5 Cir., 1972, 465 F.2d 1157 [1972].

That is the lesson of this case. That is why progress comes even from unintended unseen mistakes.

ON PETITION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM:

It is ordered that appellee's petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied; and it is

Further ordered, that appellee's request for certification to the Florida Supreme Court is denied.

As to the request for clarification, the request is granted to the extent that the trial on remand is to cover the issues of defendant's negligence and proximate cause; contributory negligence, if any, of the deceased; and damages.