This is a wrongful death action following the death of the plaintiff’s minor son, by drowning, alleged to have resulted from negligence of the defendant. On motion of the defendant, the second amended complaint was dismissed for failure to state a cause of action, and the plaintiff appealed. We hold the trial court was in error in so ruling.
It was alleged that the plaintiff and his family, including his 17 year old son who was the victim of drowning, were lessee occupants of an apartment in an apartment house owned and operated by the defendant; that the defendant had provided a swimming pool for use of the tenants of the apartment building; that on a certain day, at a time when the pool was thus open for use, plaintiff’s said son, while using the pool, drowned therein; that his drowning was the proximate result of failure of the defendant to have on hand rescue equipment and to have “a person qualified in lifesaving to be then and there present for the purpose of rescuing the deceased, or anyone else, who was liable then and there to experience difficulties while swimming in order thereby to prevent death by drowning;” that by reason thereof the drowning boy was caused to remain under water a protracted length of time, until discovered there by another tenant, and thereafter until such tenant could secure help to remove him from the pool, his death occurring two days later allegedly from his prolonged submersion in the pool. •
In addition to thus claiming there, was a breach of a common law duty of the owner-operator to such invitee, as aforesaid, the plaintiff alleged, as evidencing negligence, a regulation of the State Board of Health requiring such. In the defendant’s motion to dismiss, and here, it was contended that the regulation relied upon by plaintiff was not authorized by law to be made. The plaintiff contended the contrary. We need not choose between the arguments of counsel on that point, because the provisions in question were not in the form of regulations or mandatory requirements, but were in the form of suggestions or statements of policy to the effect that there “should be” such rescue equipment *876and personnel, for pool safety. Assuming those provisions of the Board of Health were not legally binding upon the defendant, still they serve as expressions of policy by an administrative body, entitled to have influence upon the question of whether an owner-operator of an apartment house, who provides a swimming pool for use of the lessees of apartments, is under a duty (in order to make the facility reasonably safe for their use) to make provision, by rescue equipment and some pool supervision, for rescue and resuscitation of a qualifed user of the pool who may encounter difficulty and be drowning therein.
Aside from the effect or weight to be given to the Board of Health regulation or suggestion, we hold the allegations of breach of common law duty were sufficient to state a cause of action. Whether the precautionary measures here alleged to have been lacking were necessary or expedient for the safety of those invited to use the business-operated swimming pool should be determined from all the relevant circumstances as they may appear in evidence. In so holding we are influenced by the case of McKinney v. Adams, 68 Fla. 208, 66 So. 988. The distinction that the McKinney case involved a swimming facility furnished to business invitees on a fee basis, does not appear material.1 The pool facility in this instance, supplied by the apartment operator for use of his paying tenants, likewise was a business operation, being furnished to the tenants as part consideration for their payment of rent, like other facilities such as common rooms, stairways, walks, etc. The difference, in the case of a swimming pool, is that as a common area or facility supplied for use of the tenants it involves elements of danger inherent in its nature not unlikely to be encountered by those invited to use it.
The McKinney case also was a wrongful death action, following a drowning in a public swimming facility operated by the defendant. There, as here, the plaintiff alleged the drowning was the proximate result of failure of the defendant to provide safety equipment and supervisory personnel. There was in existence a penal statute requiring certain safety equipment, but the statute did not include a requirement for lifeguard or supervisory personnel. The court there held that the statute, being penal in nature, was not applicable as a statutory regulation, but that the policy it announced was entitled to be considered to the extent of its influence upon the general principles of law applicable to the duties and correlative liabilities of the defendant in the case presented. It is significant that in the McKinney case the Supreme Court upheld the complaint, which (as to breach of duty) alleged without elaboration that the drowning was proximately caused by failure of the defendant to provide such safety equipment and personnel for rescue of his invitees. With reference to the allegations in the McKinney case of failure to supply certain items of safety equipment and such supervisory personnel, the Supreme Court said: “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.”
That pronouncement by the Supreme Court in the McKinney case is consistent with the proposition, which appears evident from the nature of the facility, that to comply with the duty to make it reasonably safe for use by such business invitees (some of whom could be expected to be unskilled in swimming or even unable *877to swim) the owner-operator should provide some adequate measures (such as by lifesaving equipment and/or skilled supervisory personnel) for rescue and resuscitation of an invitee who was drowning therein. See Pickett v. City of Jacksonville, 155 Fla. 439, 20 So.2d 484.
To dismiss the complaint in this case, which alleged the absence of lifesaving equipment and any supervisory personnel, would amount to holding that as a matter of law the apartment house owner-operator furnishing such a swimming pool facility for his lessees is under no duty to supply any precautionary means for rescue of those of his invitees using the pool who may become in difficulty or even be drowning therein. That, we consider, would be contrary to law and reason. Questions as to the nature and extent of rescue equipment which should be furnished and as to a need for supervisory personnel to be present, in order for the owner-operator to meet the duty to make the pool facility reasonably safe for such invitees, are matters to be determined in a given case from the evidence as it may be presented with respect to numerous factors, including the capacity of the apartment house, the nature of the occupants, the characteristics of the pool, the extent and nature of the use of the facility and other relevant circumstances which may appear in evidence too numerous and detailed to be required to be inserted in a complaint, unless it is considered that the complaint in such a case should allege all of the evidence which would be presented and relied upon at trial on the basis of which the protective measures needed to fulfill the duty are to be determined, rather than to state only the ultimate facts as required by the rules of procedure. The requirement is that a complaint allege ultimate facts, and a case consists not of the pleadings, but the evidence, for which the pleading furnish the basis. Cases are generally to be tried on the proofs rather than on the pleadings.
Accordingly, the judgment of dismissal is reversed and the cause is remanded for further proceedings.