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According to Florida case law as of the date of this article, a person entering a hotel’s premises without authority to use the swimming pool cannot change their status from trespasser to invitee by befriending or conversing with the hotel guests.

QUICK FACT: Typically, a victim of a hotel’s negligence has 4 years from the date of the incident to file a lawsuit based on premises liability. However, if a death resulted from the incident, the deadline to file a lawsuit is 2 years.

See: Pedone v. Fountainebleau Corp., 322 So. 2d 79 (Fla. 3d DCA 1975)

The Boy Who Drowned in the Hotel Pool

It was a hot Florida summer afternoon, and high school pals Nitto Pedone and Raymond Diaz thought that a swim in the Fontainebleau Hotel’s pool sounded like a great idea.  Raymond worked as a part-time helper in the kitchen of the Fontainebleau, and was acquainted with the hotel premises.

So the buddies walked from the public beach up to the hotel pool deck, took off their tee-shirts, and dove in.  They stayed in the water, so no one would be able to catch them.

The two teenagers played around in the pool for 30 – 45 minutes, when Raymond started feeling bad about it.  Raymond knew he was not supposed to be there: the hotel policy was that employees were not allowed to swim in the pool.

So Raymond got out of the hotel pool. Nitto did not want to leave.  He was busy trying to beat his time for staying underwater.  Nitto had been hyperventilating as he worked to stay under the water for longer periods of time. Nitto stayed in the pool and Raymond left.

It was only a few minutes later when Raymond heard voices rising over by the pool deck. He discovered that his friend Nitto had been pulled out, after someone saw him floating face down in the pool.

There was a doctor nearby, and even though the doctor saw no appearance of life, he nevertheless spent around 15 minutes attempting to  resuscitate the young boy. Unfortunately, Nitto died that day from drowning in the hotel pool.

His grieving parents filed a wrongful death lawsuit, arguing that the Fontainebleau was guilty of negligence for not having lifeguards and adequate safety equipment on the pool deck, and for failing to exercise the care required under the circumstances.  The judge granted the hotel’s motion for directed verdict, and they appealed.

On appeal, the court reviewed the evidence and found nothing that showed the Fontainebleau knew or should have known the boys were in the hotel pool.  There was also nothing to prove or suggest that the Fontainebleau had any willful or wanton intent towards the two teens.

From Raymond’s own testimony, the boys snuck onto the pool deck and went into the water, where they tried to avoid being discovered and kicked out.  The evidence, therefore, was clear that Nitto was a trespasser under the law.

In Florida,  the “unwavering rule” as to a trespasser is that the property owner is under the duty only to avoid willful and wanton harm to him, and upon discovery of his presence to warn him of known dangers not open to ordinary observation. Hix v. Billen, Fla. 1973, 284 So.2d 209Wood v. Camp, Fla. 1973, 284 So.2d 691.

There was no error by the judge in applying the law to the evidence presented by the plaintiffs, and the motion for directed verdict granted by the trial court was affirmed.

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