Huff v. Goldcoast Jet Ski Rentals, Inc.

• Decision Date: 25 November 1987
• Docket Number: No. 4-86-0992,4-86-0992
• Parties: 12 Fla. L. Weekly 2691 James E. HUFF, also known as James Giesbrecht, Appellant, v. GOLDCOAST JET SKI RENTALS, INC., a Florida corporation, and City of Hollywood, a municipal corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1349

515 So.2d 1349

12 Fla. L. Weekly 2691

James E. HUFF, also known as James Giesbrecht, Appellant, v. GOLDCOAST JET SKI RENTALS, INC., a Florida corporation, and City of Hollywood, a municipal corporation, Appellees.

No. 4-86-0992.

District Court of Appeal of Florida,

Fourth District.

Nov. 25, 1987.

Henry T. Wihnyk of Weaver, Weaver, Lardin & Liroff, P.A., Fort Lauderdale, for appellant.

Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellees.

DOWNEY, Judge.

Appellant, James E. Huff, sued Goldcoast Jet Ski Rentals, Inc., and the City of Hollywood for damages sustained in an accident while Huff was sailing a dinghy in the intracoastal waterway in the City of Hollywood, Florida. From an order dismissing the third amended complaint Huff has perfected this appeal.

For appellate purposes, the third amended complaint only involves the City. The pertinent allegations are that Huff was injured when a Jet Ski rented from Goldcoast was so negligently operated in the intracoastal waterway in Hollywood, Florida, as to injure Huff as he was sailing a dinghy in a no wake zone of the waterway. It is alleged that, by licensing Goldcoast to operate a Jet Ski rental business in the waterway adjacent to a no wake zone, the City created a dangerous condition of which it had knowledge, i.e., the City knew or should have known that Jet Skis rented from Goldcoast would be operated in the no wake zone in such a fashion as to create a wake dangerous to other boaters in the zone and that this danger was not apparent to the average boater using the waterway. The main thrust of the City's motion to dismiss is that the act of the City in licensing Goldcoast was a planning-level decision and did not subject the City to liability therefor. The City relies upon cases such as Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985), and City of Cape Coral v. Landahl, Brown & Weed Associates, Inc., 470 So.2d 25 (Fla. 2d DCA 1985), which stand for the proposition that no cause of action accrues to an injured person against a municipality for exercising the governmental function of issuing a permit or license.

Huff contends that the City is liable because it created a known dangerous condition not readily apparent to waterway users when it licensed Goldcoast and yet the City failed to adequately warn the boating public of the danger. To support this thesis Huff relies upon such cases as Payne v. Broward County, 461 So.2d 63 (Fla.1984); Ralph v. City of Daytona Beach, 471 So.2d 1 (Fla.1983); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla. 1982); Dept. of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982).

It is noteworthy that the cases generally relied on by Huff involve liability arising out of operational-level activities. For example, the City's liability arose in City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), from its activity in building and maintaining a drainage system; in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), from building a highway intersection; and in Ralph v. City of Daytona Beach, 471 So.2d 1 (Fla.1983), from the creation of and authority to supervise and control a highway on its public beach. Clearly, under those circumstances, having created a known dangerous condition not readily apparent to persons who could be injured thereby, the governmental entity has a duty to warn.

In determining whether the issuance of a license or permit can give rise to a duty on the part of a governmental entity to warn of dangerous conditions that may arise out of the activities of the licensee or permittee, we must first determine whether there was such a duty recognized at common law or by statute. If not, since no new causes of action were created by the statute waiving governmental immunity, no such cause of action exists now. This elementary concept is nicely put in Zieja v. Metropolitan Dade County, 508 So.2d 354, 356 (Fla. 3d DCA 1986), wherein the court en banc stated:

The first step in determining whether a government is liable for negligent conduct is to decide whether the alleged negligent act could possibly give rise to either a common law or statutory duty. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla. 1985). If the act is inherently governmental, there can be no duty owed to individual citizens. Trianon, 468 So.2d at 919-20; Reddish v. Smith, 468 So.2d 929, 932 (Fla.1985). Additionally, the creation of section 768.28, waiving sovereign immunity in...