JACQUELINE M. CUTLER, AS LEGAL REPRESENTATIVE OF THE ESTATE OF LINDA K. CUTLER, DECEASED, APPELLANT,
v.
THE CITY OF JACKSONVILLE BEACH, APPELLEE

Fla. 1st DCA | 1986-05-22
No. BI-253
SHIVERS and BARFIELD, JJ., concur.
489 So. 2d 126 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 12 cases

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Synopsis

The court reviewed the dismissal of a complaint alleging the city negligently caused a drowning by failing to warn of ocean dangers and provide adequate lifeguard supervision.


Holding

The court agreed that most negligence claims against the city were correctly dismissed, but the appeal focused on whether one specific allegation was properly dismissed.


Headnotes

[1] A municipality is not liable for failure to warn of dangers not created by the municipality.

[2] A municipality may be liable for operational-level negligence of its employees, such as lifeguards, if specific facts demonstrating such negligence and its causal relatio…

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Facts & Procedural History

A seventeen-year-old, unfamiliar with ocean dangers, drowned while swimming off Jacksonville Beach. Her estate sued the City of Jacksonville Beach, al…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Plaintiff below appeals a final order dismissing with prejudice her second amended complaint against the City of Jacksonville Beach. She sued the city and St. John’s United Methodist Church of Edwardsville, Illinois, for negligently causing the death of her daughter, who drowned while swimming off Jacksonville Beach in the Atlantic Ocean. Pertinent portions of the complaint against the city alleged:

4. Defendant City at all times material hereto had undertaken to provide a beach patrol and to provide or arrange for providing lifeguards to protect members of the public who swim in the Atlantic Ocean in Jacksonville Beach. Defendant City advertised or subsidized advertising by others extolling the virtues of Jacksonville Beaches and inviting and attracting persons from inland areas unfamiliar with the dangers of the Atlantic Ocean to visit Jacksonville Beach and swim in the ocean. Defendant City had superior knowledge of the dangers and hazards of swimming in the ocean than did plaintiffs decedent, a seventeen year old who had grown up in an inland area and never visited the ocean before.

Moreover, defendant City, by providing lifeguards and visible lifeguard chairs and stands, caused visitors to believe that lifeguards were on duty to protect swimmers and, therefore, to rely on that protection.

5. On or about August 3, 1983, at approximately 10:00 A.M., in Jacksonville Beach, Florida, while plaintiff's decedent, age seventeen, was a member of a church organized and sponsored trip from Edwardsville, Illinois, to Jacksonville Beach, Florida, she went swimming in the Atlantic Ocean between 10th Avenue South and the Jacksonville Beach Fishing Pier and drowned.

6.The drowning was the result of the negligence of defendant City or defendant St. John’s, or both of them, in the following particulars:

(a) Defendant City failed to adequately warn of known dangerous currents and the known danger of swimming near the fishing pier, which dangers were unknown to plaintiff’s decedent;

(b) Defendant City failed to adequately warn plaintiff’s decedent that no lifeguards or beach patrol were on duty at the time or in the alternative the lifeguards or beach patrol that were on duty failed to adequately supervise and monitor the area in which plaintiff’s decedent was swimming when she drowned;

(c) Defendant City failed to provide an adequate number of lifeguards or beach patrol to properly monitor the area in which plaintiff’s decedent was swimming when she drowned....

The trial court dismissed the complaint with leave to further amend, but on rehearing determined to dismiss the action with prejudice on the authority of Sarasota County v. Butler, 476 So. 2d 216 (Fla. 2d DCA 1985).1 We construe the appealed order as meaning that all issues raised by the complaint are effectively disposed of by that decision.

We agree that all allegations of negligence on the part of defendant city, save one, were correctly dismissed with prejudice. The allegations of failure to warn of dangers not created by the city and the failure to provide an adequate number of lifeguards are barred by the doctrine of sovereign immunity. Sarasota County v. Butler, 476 So. 2d 216.

We find it unnecessary to add to Judge Frank’s cogent discussion in that case. Appellant’s citation to Ralph v. City of Daytona Beach, 471 So. 2d 1 (Fla.1985), is not authority for her cause of action for failure to warn. That case is distinguishable because the City of Daytona Beach created the dangerous condition complained of by permitting automobile traffic on the beach where sunbathers were expected to lie in the sun. We have no difficulty with the notion that the city, having created this dangerous condition, had a correlative duty to exercise due care for the sunbathers on the beach and to warn them of this known dangerous condition. The City of Jacksonville Beach, on the other hand, did not create the alleged dangerous conditions in the ocean which caused decedent to drown.

Hence, under Sarasota County v. Butler, City of St. Petersburg v. Collom, 419 So. 2d 1082 (Fla.1982), and Palumbo v. Game and Freshwater Fish Comm’n, 487 So. 2d 352 (Fla. 1st DCA 1986), the city had no duty to warn.

Appellant’s complaint also undertakes to allege, however, that the Defendant city is legally responsible for acts of negligence on the part of the lifeguards or members of the beach patrol on duty at the time the drowning occurred. Such allegations concern acts at an operational level, which, if otherwise legally sufficient, are not barred by sovereign immunity as discussed and applied in Sarasota County v. Butler. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979).

We conclude, however, that the mere allegation that lifeguards on duty “failed to adequately supervise and monitor the area” in which decedent drowned are not sufficient, in the absence of other allegations of specific fact, to state a cause of action against the city. There are simply no allegations to identify the particular operational-level acts of the lifeguards being relied on, nor do the allegations show how those acts are causally related to the drowning of decedent. The pleading of mere conclusions is insufficient. Banta v. Rosier, 399 So. 2d 444 (Fla. 5th DCA 1981). For this reason, we find no error in the trial court’s having dismissed this negligence count against the city.

The trial court had originally dismissed with leave to amend and thereafter erroneously dismissed the entire action with prejudice solely on the authority of Butler. Since we cannot say with certainty that appellant is unable to allege further facts stating a cause of action against the city for operational negligence, we hold, in the interest of justice, that the dismissal of this claim with prejudice should be reversed. Banta v. Rosier, 399 So. 2d 444. Therefore, we remand for further amendment by plaintiff, if she so elects, to allege a cause of action solely on the basis of negligent acts of the lifeguards or beach patrol actually on duty showing the specific operational-level acts complained of and how such acts are causally related to the alleged drowning.

AFFIRMED in part, REVERSED in part, and REMANDED.

SHIVERS and BARFIELD, JJ., concur. . This case is presently pending before the Florida Supreme Court, Butler v. Sarasota County, Case No. 67,869, and oral argument is set for September 9, 1986.


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Citator

Cited By

  • Saga BAY Prop. Owners Ass'n v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987)
    …ompare Avallone v. Board of County Commissioners, 493 So. 2d 1002 (Fla.), on remand, 497 So. 2d 934 (Fla. 5th DCA 1986) (failure to provide supervisory personnel at county-owned and operated swimming facility)', Cutler v. City of Jacksonville Beach, 489 So. 2d 126 (Fla. 1st DCA 1986) (inadequate supervision by lifeguards at swimming facility); Brevard County v. Jacks, 238 So. 2d 156 (Fla. 4th DCA 1970) (duty to keep swimming facility in a reasonably safe condition).3 In sum, then, the law has long recognized…
  • Fuller Crews, Sr. v. Ellis, 531 So. 2d 1372 (Fla. 1st DCA 1988)
    …al Improvement Trust Fund, 481 So. 2d 555, 556 (Fla. 2d DCA 1986). Thus, where a petitioner may have been able to allege further facts stating a cause of action, it is error to dismiss a petition with prejudice. Cutler v. City of Jacksonville Beach, 489 So. 2d 126 (Fla. 1st DCA 1986). In the instant case, it is not clear that appellant’s petition cannot be amended to state a cause of action. Accordingly, we reverse the trial court’s order dismissing the petition with prejudice and remand the case to the tria…
  • State v. Levada LEE, 665 So. 2d 304 (Fla. 1st DCA 1995)
    …vernmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? . See Cutler v. City of Jacksonville Beach, 489 So. 2d 126, 128 (Fla. 1st DCA 1986) (allegation that on-duty lifeguards failed to adequately supervise and monitor area in which decedent drowned were not sufficient, in absence of other allegations of specific fact, to state a cause of action against the city…

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