Seelbinder v. County of Volusia

• Decision Date: 31 May 2002
• Docket Number: No. 5D00-3308.,5D00-3308.
• Citation: 821 So.2d 1095
• Parties: Marlene SEELBINDER and James Seelbinder, etc., Appellants, v. COUNTY OF VOLUSIA, etc., Appellee.
• Court: Florida District Court of Appeals

821 So.2d 1095

Marlene SEELBINDER and James Seelbinder, etc., Appellants, v. COUNTY OF VOLUSIA, etc., Appellee.

No. 5D00-3308.

District Court of Appeal of Florida, Fifth District.

May 31, 2002.

Rehearing Denied August 2, 2002.

Mark A. Zimmerman, of James, Zimmerman, Paul & Huddleston, LLP, DeLand, for Appellants.

James W. Smith, of Smith & Schroder, L.L.P., Daytona Beach, and Jennifer S. Carroll and John M. Porter, of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for Appellee.

GRIFFIN, J.

Marlene and James Seelbinder, the plaintiffs below, appeal a directed verdict entered against them in an action for negligence.

On September 18, 1994, forty-seven-year-old Marlene Seelbinder ["Marlene"] was seriously injured when she was struck by lightning as she stood on a public beach on the north end of New Smyrna Beach in Volusia County, Florida. Marlene, her husband and two children had arrived around noon, used their season pass to gain entrance to the beach and parked in the "packed sand" near where the soft sand began. Marlene said that as the day wore on, she could see a storm moving in from the south, but it was down at the end of the beach and she was not worried about it. They ultimately decided to pack up and go because it started to sprinkle rain and the sky was "dark" to the south with an "approaching dark storm." However, the sky overhead was still clear and there were no dark clouds in the immediate vicinity. Marlene put the children in the car and got rid of the trash, while her husband went to get their son in from the water. They worked at a steady pace, but not as rapidly as they might have worked had they known there was a threat of lightning. She estimated it was about fifteen to twenty minutes from the time it started to sprinkle until she was struck at 3:29 p.m. Marlene never saw or heard any lightning before she was struck.

Marlene and her husband, James, filed suit against Volusia County ["the County"] on October 7, 1996, alleging that the County's beach lifeguards were negligent in failing to warn her of the risk of lightning. The complaint set forth that the County controlled the beach through its lifeguards; that the lifeguards monitored the beach for storm activity and would call a "red light" alert when they learned of an approaching storm; that a "red light" alert required the lifeguards to get all beachgoers out of the water and direct all beachgoers west of the traffic area into the soft sand area;¹ that on the day of the accident, the County was aware as of 3:01 p.m. that a lightning storm was approaching the beach from the southwest, but the County negligently failed to call a "red light" alert until 3:24 p.m. and that the County failed to warn Marlene of the hazard of remaining on the beach once "red light" conditions existed. At the close of the plaintiffs case, the County moved for a directed verdict on the issue of liability. During the defense case, the Court granted the motion, ruling that there was no evidence the County breached any duty to Marlene and that the County's acts or omissions were not the cause of Marlene's injuries. We agree and affirm.

The appellant mainly contends that the County's lifeguards were negligent in failing to give timely warnings to beachgoers in the vicinity of the lifeguard tower 641, including Marlene, that there was a storm in the vicinity producing lightning. Between the plaintiffs' and defendant's briefs, we have at least some analysis of virtually every extant theory of negligence that could conceivably apply to this case. We begin by joining the almost universally agreed view that the County, in its capacity as "landowner" or the equivalent, did not have a duty to warn invitees, including beachgoers that there was a risk of being struck by lightning. Caldwell v. Let the Good Times Roll Festival, 717 So.2d 1263 (La.Ct.App.1998); Grace v. City of Oklahoma City, 953 P.2d 69 (Okla.Ct.App.1997); Dykema v. Gus Macker Enters., 196 Mich.App. 6, 492 N.W.2d 472 (1992); Hames v. State, 808 S.W.2d 41 (Tenn.1991); Davis v. Country Club, Inc., 53 Tenn.App. 130, 381 S.W.2d 308 (1963). This view appears consistent with Florida law. See Wamser v. City of St. Petersburg, 339 So.2d 244, 246 (Fla. 2d DCA 1976).

If any duty to warn exists, it arises from the County's having undertaken to provide warnings of lightning to beachgoers. Having undertaken this responsibility, the County was obliged to exercise reasonable care in so doing. See, e.g., Metropolitan Dade County v. Dubon, 780 So.2d 328 (Fla. 3d DCA 2001). In this case, the County had set the following procedure:

Florida leads the country annually in the number of people struck by lightning. Lightning is a very dangerous natural phenomenon.... Because lightning is impossible to control or

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