Breaux v. City of Miami Beach

• Decision Date: 24 March 2005
• Docket Number: No. SC02-1569., No. SC02-1568
• Citation: 899 So.2d 1059
• Parties: Frederica E. BREAUX, etc., Petitioner, v. CITY OF MIAMI BEACH, Respondent, Rabbi Israel Poleyeff, etc., Petitioner, v. City of Miami Beach, Respondent.
• Court: Florida Supreme Court

899 So.2d 1059

Frederica E. BREAUX, etc., Petitioner, v. CITY OF MIAMI BEACH, Respondent, Rabbi Israel Poleyeff, etc., Petitioner, v. City of Miami Beach, Respondent.

Nos. SC02-1568, SC02-1569.

Supreme Court of Florida.

March 24, 2005.

Nancy Little Hoffmann, Pompano Beach, Florida and Howard L. Pomerantz of Abramowitz and Pomerantz, P.A., Sunrise, Florida on behalf of Frederica E. Breaux, etc.; and Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin and Perwin, P.A., Miami, Florida on behalf of Rabbi Israel Poleyeff, etc., for Petitioner.

Christopher N. Bellows and Daniel S. Pearson of Holland and Knight, Miami, Florida, and Murray H. Dubbin, City of Attorney, Miami Beach, Florida on behalf of City of Miami Beach, for Respondent.

Edward G. Guedes of Weiss, Serota, Helfman, Pastoriza, Guedes, Cole and Boniske, P.A., Miami, Florida on behalf of Village of Key Biscayne and Bal Harbour Village; John C. Dellagloria, City Attorney, North Miami, Florida, Stephen H. Cypen, Town Attorney, Miami Beach, Florida, and Lynn M. Dannheisser, City Attorney, Sunny Isles Beach, Florida on behalf of City of North Miami and Town of Surfside, As Amici Curiae.

PARIENTE, C.J.

We have for review the Third District Court of Appeal's decision in Poleyeff v. City of Miami Beach, 818 So.2d 672 (Fla. 3d DCA 2002) (Poleyeff II), which expressly and directly conflicts with this Court's decision in Florida Department of Natural Resources v. Garcia, 753 So.2d 72 (Fla.2000).¹ We hold that when a municipality, such as the City of Miami Beach, operates a public beach as a swimming area by having public restrooms, showers, water fountains, parking, and a beach concessionaire from which it derives revenues, the municipality has a duty to exercise reasonable care under the circumstances to those foreseeable users of that swimming area. This holding is based on our longstanding and well-settled precedent addressing governmental entities that operate public swimming areas. We make no determination about whether the City of Miami Beach was negligent or whether any such negligence was the legal cause of the plaintiffs' damages. Nor do we determine what effect, if any, the principle of comparative negligence has on the plaintiffs' claims. Moreover, we note that as with all governmental entities, the City's liability is limited by the cap in the State's waiver of sovereign immunity set forth in section 768.28, Florida Statutes (2004).² Accordingly, we quash the Third District's decision and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On February 20, 1997, Eugenie Poleyeff and her husband, who were guests at the Saxony Hotel in Miami Beach, walked three blocks to the beach area behind the Seville Hotel at 29th Street to rent a beach chair and umbrella from a concessionaire, Hurricane Beach Rentals. While swimming in the Atlantic Ocean adjacent to the 29th Street beach area, Ms. Poleyeff was caught in rip currents. Upon hearing Ms. Poleyeff's calls for help, Zachary Breaux, who was a guest at the Seville, attempted to save her. Tragically, they were both overcome by the rip currents and drowned.

The estates of Ms. Poleyeff and Mr. Breaux brought wrongful death actions against multiple defendants, including the City of Miami Beach, the Seville Hotel, the Saxony Hotel, and Hurricane Beach Rentals. The trial court dismissed the complaints against the Seville Hotel, the Saxony Hotel, and Hurricane Beach Rentals with prejudice, and the Third District affirmed. See Poleyeff v. Seville Beach Hotel Corp., 782 So.2d 422 (Fla. 3d DCA 2001) (Poleyeff I)

, review denied, 817 So.2d 849 (Fla.2002).

With regard to the City, the complaints alleged that the City controlled the beach under a lease agreement with the State of Florida and was negligent in failing to warn swimmers of the danger of rip currents or take other action to safeguard swimmers who used the beach. The City filed a motion for summary judgment, arguing that it was entitled to sovereign immunity.

The record contains evidence that the City was aware that the public was using the beach area at 29th Street for swimming. The Poleyeffs saw other people swimming and wading in the ocean, and believed the area was a swimming area. The Poleyeffs saw no signs warning that the area was not a swimming area or that there were no lifeguards in the area. Similarly, the Breaux family saw many people swimming there on that day and the previous day, and believed the area was a swimming area.

Evidence was also presented to the trial court that at the 29th Street beach area, the City provided public restrooms with showers, water fountains, telephones, and picnic tables, and that there was metered parking adjacent to the beach on 29th Street. In addition, the City licensed Hurricane Beach Rentals to operate at that location. Hurricane Beach Rentals rented to beach users a variety of equipment, including lounge chairs, umbrellas, and watercraft. The City required the concessionaire and its employees to wear identification badges issued or approved by the City.

Although the City provided lifeguards at various other locations along the beach, at the time of the accident the beach area at 29th Street did not have a lifeguard station. The City's Parks and Recreation Director testified during a deposition that the 29th Street beach area was the only beach area that had public restrooms, showers, water fountains, and a beach concessionaire but not also a lifeguard station.

At those beaches where the City provided lifeguards, the public was warned of rip currents in the area. On the day of the accident, the lifeguard at the 21st Street beach area, which is eight blocks from the 29th Street beach area where the decedents were swimming, posted rip current warning flags. The trial court granted the City's motion for summary judgment, finding that the City was immune from suit, and the estates appealed to the Third District. The district court affirmed the trial court's grant of summary judgment, but not on the basis of sovereign immunity. Instead, relying exclusively on its prior en banc decision in Poleyeff I, the Third District held that the City had no duty to warn the decedents of, or safeguard them from, the naturally occurring rip currents because it did "not control the area or undertake a particular responsibility to do so." Poleyeff II, 818 So.2d at 673 (quoting Poleyeff I, 782 So.2d at 424). This holding conflicts with Garcia, both on the issue of the City's control of the beach area and on the issue of whether the City was operating a swimming area so that a duty of reasonable care arose.

ANALYSIS

We begin by resolving the conflict between the Third District's decision in this case and Garcia on the issue of control of the beach area. The Third District affirmed the trial court's order granting the City summary judgment on the authority of its en banc decision in Poleyeff I. In that case, the district court concluded that the Seville Hotel, the Saxony Hotel and Hurricane Beach Rentals had no "duty to warn, correct, or safeguard others from naturally occurring, even if hidden, dangers common to the waters in which they are found" because they did "not control the area or undertake a particular responsibility to do so." Poleyeff I, 782 So.2d at 424 (footnotes omitted).

Unlike the hotels and concessionaire dismissed as defendants in Poleyeff I, the City does control the area of Miami Beach, based upon a 1982 management agreement with the State. As we explained in Garcia,

[t]he management agreement: (1) provided that the State "holds title" to the beach property; (2) granted the City "management responsibilities" of the beach for twenty-five years; (3) required the City to submit a "management plan" providing for "the limitation and control of land and water related activities such as boating, bathing, surfing, rental of beach equipment, and sale of goods and services to the public;" and (4) required the City to pay the State twenty-five percent of revenues collected from private concessionaires.

753 So.2d at 74. We therefore conclude that the Third District erred to the extent it held that the City does not control the beach of Miami Beach.

We next turn to the issues of duty and sovereign immunity. In cases involving governmental tort liability, we generally determine whether the defendant owes a duty of care to the plaintiff before we address whether the governmental entity is immune from liability. See Henderson v. Bowden, 737 So.2d 532, 535 (Fla.1999)

("A threshold matter is whether the [defendant] had a duty to act with care toward the decedents.... Assuming a duty is owed, we must then determine whether sovereign immunity bars an action for an alleged breach of that duty."); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) ("Conceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.") (quoting Williams v. State, 34 Cal.3d 18, 192 Cal. Rptr. 233, 664 P.2d 137, 139 (1983)). However, in cases that involve injuries suffered while swimming, the issues of duty and sovereign immunity merge because the determination of both questions turns on the same inquiry — whether the governmental entity was operating a public swimming area when the accident occurred. We have explained that

[a] government unit has the discretionary authority to operate or not operate swimming facilities and is immune from suit on that discretionary question. However, once the unit decides to operate the swimming facility, it assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.

Avallone v. Board of County Comm'rs, 493 So.2d 1002, 1005 (Fla.1986); see also Butler v. Sarasota County, 501 So.2d 579, 579 (Fla.1986)

(quoting Avallone). This duty includes "keep[ing]...