Palumbo v. State Game and Fresh Water Fish Com'n, BE-82

• Decision Date: 09 April 1986
• Docket Number: No. BE-82,BE-82
• Citation: 11 Fla. L. Weekly 843,487 So.2d 352
• Parties: 32 Ed. Law Rep. 401, 11 Fla. L. Weekly 843 Christopher A. PALUMBO, Appellant, v. The STATE of Florida GAME AND FRESH WATER FISH COMMISSION and the Florida Board of Regents, Appellee.
• Court: Florida District Court of Appeals

Page 352

487 So.2d 352

32 Ed. Law Rep. 401, 11 Fla. L. Weekly 843

Christopher A. PALUMBO, Appellant, v. The STATE of Florida GAME AND FRESH WATER FISH COMMISSION and the Florida Board of Regents, Appellee.

No. BE-82.

District Court of Appeal of Florida First District.

April 9, 1986.

James P. Jamieson and Philip Bartow, Gainesville, for appellant.

Jerrold K. Phillips, Tallahassee, for appellee.

THOMPSON, Judge.

Christopher A. Palumbo appeals an order granting a motion for summary judgment in favor of defendants-appellees in Palumbo's negligence action for injuries received when he was attacked by an alligator while swimming at a recreational park operated by appellees. We affirm.

The incident giving rise to this litigation occurred at a University of Florida recreational park known as Lake Wauberg. Appellant, a University of Florida student, had been visiting the park for recreational purposes since his arrival at the university some three years prior to the attack. On the day in question, appellant arrived at the park, presented his student ID card at the check-in shed at the entrance to the park, and proceeded to the boat ramp to meet three of his friends. Appellant had intended to go sailing, but upon arrival he noticed that the two sailboats available had already been taken out onto the lake. He also noticed that one of the boats had capsized and appeared to have its mast stuck in the mud. He decided to swim out to the capsized boat in order to help the occupants right it, and simply for some exercise. During his swim from the boat launch area, he was attacked and severely injured by an alligator.

In the order granting summary judgment, the trial court recited two bases for granting the motion:

1. The failure of the defendants to fence, block or otherwise prevent alligators from moving from Paynes Prarie State Park to adjoining Lake Wauberg and to provide an adequate number of lifeguards to serve as alligator spotters are clear discretionary decisions....

2. The plaintiff's total disregard of the clear warnings and regulations present at the facility was the sole proximate cause of his injury.

We agree that the trial judge correctly granted summary judgment in favor of appellees. The law of Florida does not require the owner or possessor of land to anticipate the presence of or to guard an invitee or trespasser against harm from wild animals unless one of two conditions exists: the animal has been reduced to possession, or the animal is not indigenous to the locality but has been introduced onto the premises. Appellees had not reduced the alligator to possession before the attack, and since alligators are indigenous to Florida, appellees were not required to have the alligator under dominion and control.

In regard to the trial court's application of the sovereign immunity defense, we observe that the Supreme Court of Florida, in City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), held that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, an operational duty arises to warn or protect the public from the known danger. Here, appellees clearly did not create the dangerous condition, i.e., the presence of the alligator, and we agree with the trial court that liability against appellees may not be predicated upon their decision, clearly discretionary and judgmental, of whether to fence, block or otherwise prevent alligators from moving from Paynes Prairie State Park to adjoining Lake Wauberg, if indeed it would have been possible to do so. Such preventive measures as appellant's allegations envision would be discretionary under the holding of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), thereby affording protection to appellees under the doctrine of sovereign immunity.

It is clear, however, that once the university undertook to open and operate the recreational facility (with or without the assistance of the Game and Fresh Water Fish Commission), it would be held to the same standards of care as are applied to private persons operating similar facilities. Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985).

We also agree with the trial court's finding that appellant's total disregard of the clear warning signs present at the facility was the sole proximate cause of his injury. A sign posted at the boat launch area where appellant entered the water read "No Swimming Allowed." Signs posted around the park making reference to alligators included a Game and Fresh Water Fish Commission poster attached to the gate attendant's booth at the entrance to the park; a sign located near the swimming dock on another part of the lake; and another sign located near one of the boathouse docks. The latter two signs read "Unlawful To Feed Alligators." The Game and Fresh Water Fish Commission poster read "Don't Feed Or Molest ...," and showed a picture of a large alligator. The poster also contained wording discussing the dangers involved in feeding or molesting alligators. Other...