KRIS COX, APPELLANT,
v.
COMMUNITY SERVICES DEPARTMENT, ETC., ET AL., APPELLEES
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Kris Cox sought damages for injuries sustained diving at a public park owned by Hernando County. The trial court applied a recreational use statute and retroactive sovereign immunity limitations to bar his claim, but the appellate court reversed, holding that the statute did not apply to county-owned parks and that the retroactive statutory amendment violated constitutional protections for vested property interests.
The court held that section 375.251 does not apply to municipalities and counties, so it could not be used to bar Cox's action against the county. The court also held that Chapter 87-134 cannot constitutionally be applied retroactively to divest a person of a vested cause of action, even if judgment has not yet been rendered.
[1] A statute limiting the liability of persons making areas available for recreational purposes without charge does not apply to county-owned and operated parks.
[2] A legislative amendment to a statute partially waiving sovereign immunity, which places specific dollar limitations on recoveries, cannot constitutionally be applied retr…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court erred in applying section 375.251, Florida Statutes, to the county-owned and operated park. That statute does not relate to municipalities and counties.”
Establishes that the recreational use statute does not apply to government entities.
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Join FLexlaw to unlock all legal intelligenceCox was injured in 1982 when he dove into water at a public park owned and operated by Hernando County. He filed a negligence action against the count…
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COWART, Judge.
Appellant, injured in 1982 when he dove into water at a public park owned and operated by Hernando County, filed a negligence action against the county in 1986. By Chapter 87-134, Laws of Florida, effective June 30, 1987, the legislature amended the statute partially waiving sovereign immunity (§ 768.28(5), Fla.Stat.) by placing specific dollar denoted limitations on recoveries that the statute permits against sovereign entities.
The trial court held:
(1) that the 1987 statutory amendment applied constitutionally and retroactively to appellant’s action against the county, and (2) that section 375.251, Florida Statutes, which limits the liability of persons making available to the public certain areas for recreational purposes without charge, applied to the county-owned park and operated to bar appellant’s action against the county.
The trial court erred in applying section 375.251, Florida Statutes, to the county-owned and operated park. That statute does not relate to municipalities and counties. City of Pensacola v. Stamm, 448 So. 2d 39 (Fla. 1st DCA 1984), rev. denied, 456 So. 2d 1181 (Fla.1984); Chapman v. Pinellas County, 423 So. 2d 578 (Fla. 2d DCA 1982); Metropolitan Dade County v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980), rev. denied, 389 So. 2d 1113 (Fla.1980).
The trial court was also in error in holding that Chapter 87-134 applied retroactively to limit the amount of appellant’s claim against the county. Although this court in Marion County School Board v. Streetman, 535 So. 2d 299 (Fla. 5th DCA 1988), held to the contrary, the issue was later examined more closely by Judge Campbell in City of Winter Haven v. Allen, 541 So. 2d 128 (Fla. 2d DCA 1989), and has now been directly addressed by the Florida Supreme Court which held in Kaisner v. Kolb, 543 So. 2d 732 (Fla.1989), that persons, like appellant, who have an accrued cause of action although not yet reduced to judgment, have such a vested interest as cannot be constitutionally retroactively divested by legislative action.
The final summary judgment in favor of the county, based on the application of section 375.251, Florida Statutes, to the county-owned park, and the retroactive application of Chapter 87-134, Laws of Florida, is reversed and the cause remanded for further proceedings.
REVERSED and REMANDED.
SHARP, C.J., and DAUKSCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989)
- Chapman v. Pinellas Cnty., 423 So. 2d 578 (Fla. 2d DCA 1982)
- Metro. Dade Cnty. v. Yelvington, 392 So. 2d 911 (Fla. 3d DCA 1980)
- City OF Pensacola v. Stamm, 448 So. 2d 39 (Fla. 1st DCA 1984)
- City OF Winter Haven v. Allen, 541 So. 2d 128 (Fla. 2d DCA 1989)
- Belcher v. James, 535 So. 2d 299 (Fla. 5th DCA 1988)