CARROLL, CHAS., Chief Judge.
The appellants, who were the plaintiffs in a tort action in the circuit court, appeal from a summary judgment entered in favor of the appellee.
The action grew out of injuries which the appellant Ethel Gordon sustained while swimming in the pool of appellee's hotel at Miami Beach where she and her husband were guests. She claimed that her injury was caused by boys engaged in boisterous conduct or horseplay at the pool, and charged the defendant hotel corporation with negligence in failing to maintain the premises in a reasonably safe condition by permitting and failing to supervise or check such boisterous conduct.
The plaintiff Mrs. Gordon was in the status of a business invitee on the premises of the hotel corporation. To her they owed a duty to keep the premises in a reasonably safe condition and to guard against subjecting her to dangers which were known or which might reasonably have been foreseen. McNulty v. Hurley, Fla. 1957, 97 So.2d 185, 187. More specifically, for an operator of a swimming pool, being an amusement or recreational area on the hotel premises, the nature of his duty to invitees who are paying guests was declared and described by the Supreme Court, speaking through Mr. Justice Thornal, in the case of Brightwell v. Beem, Fla. 1956, 90 So.2d 320, 322, as follows:
In the case of Quinn v. Smith Co., 5 Cir., 57 F.2d 784, which originated in the Southern District of Florida, it was held that it was a breach of such duty owed by an operator of a swimming pool, to permit boisterious, rude and dangerous conduct of persons at the pool without taking appropriate steps to control and prevent the same.
In that case, in an opinion written by Judge Hutcheson, the court said (at page 785):
Cases dealing with the duty owed by the operator of such premises to its paying guests and the responsibility of an operator for injuries resulting from boisterous conduct and horseplay which is allowed to occur and continue without restraint, are collected and annotated in 16 A.L.R.2d 912, 932-935; 20 A.L.R.2d 8, 76-77; 29 A.L.R.2d 911, 917-920; and 48 A.L.R.2d 104, 165-166. See also, Central Theatres, Inc. v. Wilkinson, 154 Fla. 589, 18 So.2d 755, 757-758.
From the pleadings, affidavits and the interrogatories and answers thereto which were before the court, it appeared that boisterous conduct or horseplay by a number of boys around the pool, including pushing or throwing boys into the pool, had occurred almost daily for a period of time and on the day in question, and that such activities were permitted to go unrestrained by defendant.
With such boisterous activities going on unchecked at one end of the pool, Mrs. Gordon went into the pool at the other end, which was the shallow end. A short time later while she was swimming there face down, a body landed on her, following which she blacked out or fainted, was assisted from the pool, and became hysterical. A pool attendant identified as having a brace on his neck came up and proceeded to administer first aid, having the people move back from around Mrs. Gordon and apparently taking charge. Mrs. Gordon did not know whose body struck her or how it occurred. She was in no position to know, as she was swimming face down when it happened and she appeared dazed thereafter. Mr. Gordon was in the pool area, but was not in the immediate vicinity at the time and did not observe the accident.
The deposition of Mr. Gordon stated that the pool attendant whom he identified as one with a brace on his neck, and who elsewhere was shown to be one Lloyd Mendow, was a witness to the accident. Mr. Gordon further recited in his deposition an admission which was made by the pool attendant Mendow that "these fellows picked one another up bodily and threw him into the pool, and one of them landed on her head." Mr. Gordon also stated that the attendant identified the boy who landed on Mrs. Gordon, as a boy named Al.
An admission against interest made by an employee in the course of and within the scope of his employment and relating to a matter which is not beyond the penumbra of his duties or employment, is a recognized exception to the hearsay rule, and such a statement by the employee will be admissible against the employer as an admission against interest. Myrick v. Lloyd, 158 Fla. 47, 27 So.2d 615.
On the motion for summary judgment, the matter of the quality, weight and credibility of the evidence presented up to that point in the case was not a concern of the court, because "neither the trial court nor the appellate court is justified in weighing facts and meting out justice according to the conclusion reached." Yost v. Miami
The court granted summary judgment on the ground that there was no showing of any causal connection between the horseplay and the injury to Mrs. Gordon. In this respect we must hold the trial court was in error. The feature which the court felt was missing, was supplied by evidence of an admission by the hotel employee, who was in the performance of duties as a pool attendant, that the accident resulted from the horseplay at the pool.
We are not unaware or unmindful of the heavy and extensive trial dockets in the circuit court in Dade County, and as stated by the Supreme Court in Delany v. Breeding's Homestead Drug Co., Fla. 1957, 93 So.2d 116, 119, "We fully realize the value of summary judgment procedures in expediting the disposition of cases and in disposing of those matters where the material facts are not in conflict."
However, we repeat here what was said by the Supreme Court, in the opinion authored by Mr. Justice Drew, in Williams v. City of Lake City, Fla. 1953, 62 So.2d 732, 733, as follows:
For the reasons stated, the summary judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.
Reversed and remanded.
HORTON and PEARSON, JJ., concur.