Cruz v. Metropolitan Dade County

350 So. 2d 533 | Fla. Dist. Ct. App. | 1977

Dissenting Opinion

NATHAN, Judge,

dissenting:

This is an appeal by plaintiffs from an adverse summary final judgment entered in favor of Dade County, discharging the county from liability. While snorkeling in the water adjacent to Rickenbacker Causeway, plaintiff was struck and injured by a boat operated by an individual who is not a party to this action. Plaintiff brought suit against Metropolitan Dade County and the city of Miami, alleging that either the city, the county, or both were negligent in maintaining and caring for a beach area in that they failed to patrol it properly, to delineate the appropriate swimming area, to post warnings or restrictions for boaters in the area, and to take adequate precautions, knowing that the area was dangerous because both swimming and boating took place there.

Although the location in which the accident occurred was not a “designated” beach or swimming area,¹ the record reflects that employees of the county and the city patrolled there, and knew the area was used by both boaters and swimmers. After discovery, the county moved for summary judgment, asserting, inter alia, (1) that, as a matter of law, Dade County should not be deemed negligent since it had violated no duty to plaintiff, and (2) that even if a duty were to be established, the doctrine of sovereign immunity precluded suit.

In regard to the county’s assertion that it owed no duty to plaintiff as a matter of law, resolution of a dispute by way of summary judgment applies only when there are no issues of material fact in dispute, and therefore the moving party is entitled to a judgment as a matter of law. In the case at bar, there are contested facts presented regarding the governmental entity responsible for the premises, the nature and degree of the responsibility involved, and the applicability of sovereign immunity. Thus there remain mixed questions of law and fact still unresolved, and summary judgment is an inappropriate method of precluding further pursuit of plaintiff’s cause.

The majority holds that no duty existed to supervise swimming in an area not designated as a public swimming area. This does not preclude the existence of a lesser duty in this location, for example the duty to inform the public that swimming would be an individual risk, or to post signs barring boats within a reasonable distance from shore. Whether or not such a duty exists may depend on other issues not yet resolved.

It may well be that appellant cannot recover under the facts and the law applicable to this case. But to bar the pursuit of a remedy in a situation in which the line between law and fact is itself blurred is an inadequate solution. I would reverse and remand for further consideration of the facts and the law.

1 . The record is unclear as to an accepted definition of a “designated” beach, but it appears that the reference is to areas in which lifeguard protection and numbered parking areas are provided by the county.

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Lead Opinion

PER CURIAM.

The plaintiffs Carlos Cruz and Luz Cruz, his wife, sued Metropolitan Dade County claiming damages from the County because Mr. Cruz was injured while swimming in the waters off Rickenbacker Causeway. While Cruz was engaged in the activity of “snorkeling,” he was struck by a motorboat. After discovery and the filing of affidavits, Dade County moved for summary final judgment. The summary final judgment was entered for Dade County, and the plaintiffs have appealed from that judgment.

The uncontroverted evidence before the trial court shows that the area in which Cruz was using the bay for swimming was not a designated county park and recreation area. Although it was known to the employees of the County that the area was sometimes used for swimming purposes, the County did not undertake to supervise swimming activities in the area. About forty-five minutes before the accident, a friend of Cruz’s, who was with him, told him to get out of the water because boats were coming in close and someone might get hurt. Cruz got out of the water but, thereafter, returned to his snorkeling activities.

The controlling question on this appeal is whether or not, under the facts of the case, Metropolitan Dade County had a duty to supervise swimming in the area. We hold that no duty existed to supervise swimming in a portion of the bay which was not designated as a public swimming area. In Waite v. Dade County, 74 So.2d 681 (Fla.1954), the Supreme Court of Florida held that the failure of the County to place barriers on a strip for pedestrians on a bridge concerned functions being performed by the County in its governmental capacity and that the County as a political subdivision of the State of Florida was immune from suit as a result of the failure to perform the function.¹

There being no genuine issue of material fact and it appearing that the County is entitled to a judgment as a matter of law, the summary final judgment is affirmed.

Affirmed.

1 . The accident with which we are here concerned occurred prior to the effective date of Sections 768.28 and 768.30, Florida Statutes (1975).