Florida Supreme Court Expands Governemental Tort Liabilty for Swimming Areas
Michael J. Roper
PGIT Panel Attorney
Bell , Leeper & Roper, P.A.

In a recent decision, Breaux v. City of Miami Beach, 2005 WL 673649 (Fla. March 24, 2005), the Florida Supreme Court appears to have significantly expanded governmental tort liability associated with the use of public recreational areas.   In a classic case of “bad facts making bad law,” the Court held that the City of Miami could be held liable, in tort, for failing to warn of the existence of a naturally occurring condition (i.e. riptides).   The majority’s decision was criticized, in dissent, by former Chief Justice Wells as being in conflict with the Court’s longstanding precedent in respect to sovereign immunity. He further cautioned this ruling would have serious adverse consequences for the state, county and municipal beach areas of Florida.   An outline of this important decision follows.

This case arises out of an incident that occurred on February 20, 1997 wherein Mrs. Poleyeff, a guest at a local hotel went to the beach area, near 29 th Street on Miami Beach, to rent a beach chair and umbrella from a concessionaire.   While swimming in the Atlantic Ocean adjacent to the 29 th Street beach area, Mrs. Poleyeff was caught in rip currents.   Upon hearing Mrs. Poleyeff’s calls for help, Mr. Breaux, who was also a guest at a local hotel, attempted to save her.   Tragically, they were both caught in the rip currents and both drowned.   Thereafter, the estates of both decedents brought wrongful death actions against multiple defendants, including the City of Miami Beach and the hotels at which they were staying.   The claim against the City alleged that the City was negligent in failing to warn swimmers of the danger of rip currents or take other action to safeguard swimmers who use the beach.

There was evidence in the record demonstrating that the family of the decedents saw other persons swimming and wading in the ocean and believed this was a swimming area.   There were no signs posted warning that the area was not a swimming area or that there were no lifeguards in the area.   The City had provided public restrooms with showers, water fountains, telephones and picnic tables as well as metered parking in the vicinity.   In addition, the City licensed a concessionaire to operate at that location, including renting lounge chairs, umbrellas and watercraft.   The City had posted lifeguards at other areas on the beach, but did not have a lifeguard posted at this area.   At those beaches where the City provided lifeguards, the public was warned of rip currents in the area.

In analyzing the issue of liability, the Court first of all concluded that, under the totality of the circumstances presented, the City was operating a public swimming area at the 29 th Street location.   In support of that conclusion, the relied upon evidence that the City knew that the public was using this location for swimming, that there were no signs warning the public not to swim and that the family of both decedents saw people using the area for swimming.   Further, the Court noted that the City had built beach facilities at this location and “of even greater significance” had licensed a concessionaire to rent beach chairs, etc.   Accordingly, the Court concluded that the City had held the 29 th Street beach area out to the public as a swimming area or led the public to believe the area was a designated swimming area.   The Court concluded that the fact that the City had never formally designated the beach as a public swimming area was not dispositive of whether the City owed an operational level of duty to safely operate the area.   It went on to point out that a governmental entity has discretionary authority to operate or not operate swimming facilities and is immune from suit on that discretionary question.   However, once the entity decides to operate the swimming facility, it assumes a common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.

In light of the above, the Court concluded that the City had an operational-level duty of care to warn the public of any dangerous condition of which it knew or should have know at the 29 th Street beach area.   The majority stated that it was irrelevant to this analysis, which the dangerous condition (i.e. riptides) was naturally occurring as opposed to manmade.   Finally, they noted that simply because rip currents are transient in nature, does not relieve the City of the duty to warn.   Instead, that factor should be taken into consideration in determining the question of whether the governmental entity knew or should have known of the dangerous condition.   They held that because the City controlled the beach area and was operating a public swimming area, it had a duty of care to warn of dangers that were known or should have been known, and was not shielded from liability as a matter of law based on sovereign immunity.   They expressly did not decide the issue of whether the City knew or should have known of the rip currents at that location on the day in question, or whether the City breached its duty of care to the decedents.

In a well-reasoned dissent, which was joined by two of the other justices, Judge Wells pointed out the distinction in the case law that had heretofore existed between liability for manmade conditions versus naturally occurring conditions.   He also argued that the decision as to where and when to post lifeguards was clearly discretionary in nature, and should entitle the public entity to sovereign immunity.   Justice Wells encouraged the majority to recognize that “…the ocean and gulf waters adjacent to these beaches are filled with natural dangers which are controlled only by nature and that these dangers are simply inherent in the use of these waters.”   He predicted that this decision would result in a reduction in public access to beaches because governmental entities would conclude that they could not practically or financially afford to protect users against the unlimited natural hazards of the ocean or gulf which he ultimately characterized as a very bad result for Florida and for the public.

In this writer’s opinion, the Breaux decision represents a significant further erosion of the protection of sovereign immunity and certainly has implications beyond the operation of public swimming areas.   The majority seems to justify this decision, in part, by referring to the limitations on the City’s liability represented by the cap on damages contained in §768.28, Fla. Stat.   However, as Justice Wells points out, this does not take into account the availability of the claims bill process that has the potential for significantly increasing a governmental entity’s financial exposure.

The net effect of this recent Supreme Court decision is that, in order to limit their liability, governmental entities who are either formally operating recreational facilities, or are aware that the public is utilizing their premises for such purposes, must now warn of any and all dangerous conditions, of which it knows or should have known, regardless of whether these are natural or manmade conditions.   This decision appears to impose an extraordinary and, in most instances, impractical duty of care upon governmental entities, relating to the operation of such facilities. Printable Copy

Special Events Require Special Attention
Ann Hansen
Director of Operations
Public Risk Insurance Agency

Special events sponsored by public entities or allowed to be held on public property can present additional and sometimes uninsured exposures.   Do you have a written procedure to handle these activities?   Special events can cause a multitude of possible exposures.   Let’s take an example of a civic group that wants to hold a parade and festival at your local park.   Ask the following questions:

Q Who will provide security?
Q Will there be fireworks?
Q Will there be animals performing or on display?
Q Will food be sold?
Q Will alcohol be sold?
Q Does the expected attendance cause traffic
problems within the area?

These are just a few of the exposures that need to be addressed in order to protect your governmental entity and the citizens that will be attending.   The best possible answer is that you transfer the liability of these exposures to the sponsoring group.   Obtaining a Certificate of Insurance and being named as an Additional Insured on the policies of the sponsoring group and vendors that are participating should be your first option.   Do the departments within your organization know what to look for on a Certificate of Insurance?

Q What limits are acceptable?
Q Which lines of coverage are necessary?
Q Are you listed as an “Additional Insured”?
Q Does the insurance company have an acceptable rating?

If you do not have written procedures regarding insurance requirements, now is the time to put them in place and then make sure all your departments know and understand them.   It is important for the public to know, too.

If the renting organization does not have insurance, consider these options: you can require them to purchase a Special Events Policy applicable to the sponsored event; for a private party, such as a wedding or reception, the individual’s homeowners policy may be extended to cover liability from the event; or, you can decline to allow the use of your facilities for any group without proper insurance.   The costs for Special Event Policies vary greatly, and are based on the type of event and limits of liability written.

For events that you are sponsoring, the same questions apply.   Do you know if your coverage agreements or policies extend protection for these activities?   Before you schedule that next parade, sporting event, art festival, or rent the local hall out for a wedding, call your insurance agent and have them review your current coverage agreements with you.   Be sure you know what coverage may or may not be in place.   We all have a common goal to see that there are no surprises when a claim occurs.