Wamser v. City of St. Petersburg, 75--1345
| Decision Date | 27 October 1976 |
| Docket Number | No. 75--1345,75--1345 |
| Citation | 339 So.2d 244 |
| Parties | R. J. WAMSER and Robert Wamser, a minor, by his next friend, R. J. Wamser, Appellants, v. CITY OF ST. PETERSBURG and Insurance Company of North America, Appellees. |
| Court | Florida District Court of Appeals |
John L. McFadyen, Lloyd & Henniger, St. Petersburg, for appellants.
Michael S. Davis, St. Petersburg, for appellees.
Robert Wamser, a minor, and his father sued the City of St. Petersburg and its insurance carrier for damages sustained by them as a result of a shark attack. The amended complaint alleged that Robert was severely injured when he was attacked by a shark while swimming in the waters of the Gulf of Mexico adjacent to a beach operated by the city on Treasure Island. Both parties moved for a summary judgment. The trial court granted defendants' motion, holding that under the facts disclosed the city could not be held responsible as a tort-feasor for damages caused by a wild creature in its natural habitat.
The record, which was developed by extensive discovery procedure and affidavits, reflects that the attack occurred shortly after Mr. Wamser had joined Robert who was swimming about 25 feet from shore and approximately 15 to 20 feet north of the lifeguard stand. Before the attack the Wamsers were aware that there were sharks in the Gulf of Mexico, but had never heard that there were sharks at the city beach, nor had they received any specific warning that sharks inhabited the area directly around the beach.
The lifeguard on duty at the time of the attack had just received a report of a shark sighting south of the municipal beach and was going to investigate when he heard appellants' screams. He helped pull the boy upon the sand, directed someone to call the rescue squad and requested the other lifeguard to apply a tourniquet to the boy's leg. He then ordered all bathers out of the water.
There was no charge made by the city for the use of the beach. The District Recreation Supervisor for the city stated in his deposition that he had been connected with the city beach approximately 24 years and to his knowledge there had never been a shark attack at any of the city beaches in all those years. The two lifeguards, one of whom had worked at the beach for more than ten years, stated they had never seen a shark at the city beach. On several occasions they had received reports of sharks in the area but upon investigation, alleged shark sightings had proved to be sightings of porpoise.
In an affidavit submitted by appellants in support of their motion for...
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