Sarasota County v. Butler, 84-2532

• Decision Date: 26 July 1985
• Docket Number: No. 84-2532,84-2532
• Citation: 476 So.2d 216,10 Fla. L. Weekly 1819
• Parties: 10 Fla. L. Weekly 1819 SARASOTA COUNTY, Florida, a corporate body politic, Appellant, v. Margaret E. BUTLER, as personal representative of the estate of Henry Lee Sanders, a minor, Appellee.
• Court: Florida District Court of Appeals

Page 216

476 So.2d 216

10 Fla. L. Weekly 1819

SARASOTA COUNTY, Florida, a corporate body politic, Appellant, v. Margaret E. BUTLER, as personal representative of the estate of Henry Lee Sanders, a minor, Appellee.

No. 84-2532.

District Court of Appeal of Florida Second District.

July 26, 1985.

Rehearing Denied Oct. 8, 1985.

Robert C. Widman of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellant.

John P. Graves, Jr. of John P. Graves, Jr., Chartered, Sarasota, for appellee.

FRANK, Judge.

Sarasota County, Florida, has appealed from a jury verdict awarding $87,500 to the appellee, Margaret Butler, as a result of the drowning death of her 9 year old son at the South Lido Beach located in that county. It urges five points on appeal. The question we have resolved makes it unnecessary to reach the remaining four. We reverse on the ground that the record in this matter discloses that Sarasota County is insulated from liability under the doctrine of sovereign immunity.

On June 10, 1981, the decedent, in the company of his aunt and seven other young children, went to the South Lido Beach. The aunt delegated supervision of the children to one in the group who was twelve years old. Two of the children attempted to pull the decedent from the water but they halted that effort when told he could swim. He drowned and his body was recovered the next day. The record indicates that the tides and currents were strong and the underlying lands contained drop-offs. The complaint alleged that Sarasota County was negligent because it failed to post warning signs or other warning devices alerting beach-goers to the dangerous conditions, failed to provide lifeguards or other protection and failed to provide safety or rescue equipment to be used in emergencies. Such omissions were alleged as the proximate cause of the decedent's death.

The test, composed of three conjoined parts, to be followed in a matter of this kind is whether the governmental entity created the dangerous condition, knew it to be dangerous and that such danger was not readily apparent to those persons who might sustain injury as a result of it. City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Barrera v. State of Florida, Department of Transportation, 470 So.2d 750 (Fla. 3d DCA 1985). One of the elements critical to stripping away the shield of sovereign immunity is missing in the matter at hand, i.e. the creation by Sarasota County of the dangerous condition. The hazardous nature of the waters which might exist at the South Lido Beach cannot be attributed to Sarasota County. That condition, based upon the present record, pre-existed Sarasota County's assumption of proprietary dominion over the beach. There is no claim pleaded nor was one tried upon a theory that Sarasota County by, for example, dredging or other action generated the undercurrents, the drop-offs or the tides associated with the waters adjacent to the beach. Although the appellee's claim is eviscerated by the absence of the "creation" f...