Orla RALPH, Petitioner, v. CITY OF DAYTONA BEACH, a Municipal Corporation, and Cheryl Ann Fetsko, Respondents.
No. 62094.
Supreme Court of Florida.
February 17, 1983.
Rehearing Denied June 27, 1985.
471 So.2d 1
EHRLICH, Justice.
Paul Bernardini of LaRue and Bernardini, Daytona Beach, and Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith, and Cutler, Tallahassee, for petitiоner.
Alfred A. Green, Jr., Frank B. Gummey, III, Robert G. Brown and Reginald E. Moore, Daytona Beach, for respondent.
Alan E. DeSerio, Appellate Atty. and John H. Beck, Gen. Counsel, Tallahassee, for Dept. of Transp., amicus curiae.
EHRLICH, Justice.
The limited issue in this case is whether a complaint that alleges that the City of Daytona Beach allowed a known hazardous condition to exist on the beach without warning the public invited to use the bеach for recreational purposes of that known hazardous condition, states a cause of action able to withstand a motion to dismiss. We hold that it does.
The petitioner sued the City of Daytona Beach and Cheryl Fetsko for injuries she sustained on a Sunday afternoon in August when a car driven by Fetsko ran over her while she was sunbathing on Daytona Beach. In the count directed to the city, petitioner cоntended that by virtue of a charter provision declaring and making the beach between the high and low water mark within the city limits a public highway, which provision also gave the city jurisdiction, supervision and control оver the highway, the city had assumed an obligation to exercise reasonable care for the safety of the public by accepting such power; that the city had invited sunbathers to use the beach and is held to the same duty of care as is required of private persons and corporations, to-wit: reasonable care for the safety of such persons who use the beach pursuant to said invitatiоn; that the
The sole issue in this case is whether the trial court erred in granting the motion to dismiss the third amended complaint which undertook to allege a cause of action against the city for negligently failing to warn of a known hazardous condition. For the purposes of a motion to dismiss for failure to state a cause of action, allеgations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla. 1972); Popwell v. Abel, 226 So.2d 418 (Fla. 4th DCA 1969). Applying that standard to the instant case, we find that petitioner‘s third amended complaint does state a cause of action.
Department of Transportation v. Neilson, 419 So.2d 1071 (Fla. 1982), is closely on point. There, the trial court dismissed plaintiff‘s complaint against the governmental entity because of planning lеvel immunity. We agreed with the trial court under the specific factual posture of that case but stated that “[i]f the complaint had alleged a known trap or dangerous condition for which there was no proper warning, such an allegation would have stated a cause of action.” Id. at 1078. The rationale behind this statement is language from Neilson and the holding of City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla. 1982). In Neilson, we said:
The failure to so warn of a known danger is, in our view, a negligent omission at the operational level of government and cannot reasonably be argued to be within the judgmental, planning-level sphere. Clearly, this type of failure may serve as the basis for an action against the governmental entity.
419 So.2d at 1078. Likewise, we said in Collom:
We hold that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.
419 So.2d at 1083. The complaint in the instant case did allege a dangerous condition for which there was no proper warning and as such did state a cause of action. The motion to dismiss was thus improvidently granted.
The allegations in the third amended complaint, at the very least, come within Neilson in alleging that the city was negligent in failing tо warn sunbathers that there would be no adequate traffic supervision.1
The scope of this opinion is narrow. We do not resolve the issue of whether the city, in fact, breached a duty to warn. Resolution of that issue concerns the “readily apparent” nature of the danger in this particular instance, (see Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA), petition denied, 389 So.2d 1113 (Fla. 1980); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980)), the relative rights of sunbathers and motorists on beaches, (see White v. Hughes, 139 Fla. 54, 190 So. 446 (1939); Town of Atlantic Beach v. Oosterhoudt, 127 Fla. 159, 172 So. 687 (1937); Sallas v. State, 98 Fla. 464, 124 So. 27 (1929)), as well as other factors not relevant to our discussion of the motion to dismiss but proper before a trier of fact.
It is so ordered.
ADKINS, BOYD and OVERTON, JJ., concur.
ALDERMAN, C.J., and McDONALD, J., dissent.
Notes
Relevant portions of the Third Amended Complaint read as follows:
17. On Sunday, August 28, 1977, at approximately 4:50 P.M., the above-described section of the Atlantic Ocean Beach was crowded with swimmers, sunbathers and motor vehicle traffic of all types. Plaintiff herself was a sunbather on said Atlantic Ocean Beaсh. Defendant City had invited through advertisements and other promotional means, these persons, including the plaintiff herself, to use the above-described beach. Defendant City maintained said beach as a рublic resort and knew large numbers of crowds congregated in this area at this particular time of year particularly on a Sunday. Defendant City maintained said beach as a public resort. As such, defendant City had a duty to use reasonable care to exercise all proper precautions, skill and care commensurate with the circumstances to maintain the beach in a reasonably safe condition and to have a sufficient number of attendants and policemen present to see that a reasonably safe condition existed.
18. At the above-described date, time and place, Orla Rаlph was using said beach for the intended purpose, to-wit: sunbathing on the beach near the Atlantic Ocean water.
19. At said time and place, defendant City did negligently and carelessly breach one or morе of the above-described duties in that defendant City negligently and carelessly failed to provide a sufficient number of attendants and policemen to properly control traffic, negligently and carеlessly failed to properly supervise motor vehicle traffic in this area by allowing motor vehicles to drive in an area where sunbathers were lying on the beach even though there were other arеas where motor vehicle traffic should properly have been directed; defendant City negligently and carelessly failed to properly supervise motor vehicle traffic in this area by allowing motоr vehicles to drive in an area where sunbathers were lying on the beach even though there were other areas where motor vehicle traffic should properly have been directed and even though there was known by defendant City an unreasonably high risk of harm to sunbathers being injured by motor vehicle traffic; defendant City was further negligent and careless in failing to warn sunbathers of the danger of sunbathing on the beach and the dangers of motor vehicle traffic not being properly supervised and in failing to warn sunbathers such as the plaintiff herself of an insufficient and inadequate number of attendants and policemen to properly supervise traffic; defendant City was further negligent in failing to properly warn the plaintiff of the danger of motor vehicle traffic driving along the Atlantic Ocean Beach near the water where sunbathеrs such as the plaintiff herself were sunbathing; defendant City negligently and carelessly failed to properly warn the plaintiff of these hazards and negligently and carelessly failed to correct said hazards, evеn though defendant City had a reasonable opportunity to do so and knew or should have known of the danger at a time when the plaintiff herself was in contact in the area which should have been properly supervised and regulated and which was negligently and carelessly improperly supervised and regulated by defendant City as a part of its operational level functions. Defendant City negligently and carеlessly failed to properly supervise or correct the situation where motor vehicles were operating in the area near the water where sunbathers were lying, although defendant City had an opportunity to do so; defendant City negligently and carelessly failed to provide a reasonably safe place for sunbathers and negligently and carelessly failed to provide proper lanes of traffic or proper traffic routes so that motor vehicle traffic would not proceed in and through the areas where sunbathers were bathing on the beach even though defendant City knew of the dangеr and had a reasonable opportunity to correct the hazard and a reasonable opportunity to keep said beach in a reasonably safe condition or to otherwise warn users of the beach of these known dangerous conditions. (emphasis supplied).