Florida Department of Natural Resources v. Garcia

No. SC93065 (753 So. 2d 72) (Fla. February 10, 2000)

ELR Digest

The court holds that a state could be held negligent for failing to remove underwater debris that injured a swimmer even though the state environmental agency never formally designated for swimming the beach where the swimmer was injured. The court first holds that a formal designation of a beach as a public swimming area is not necessary before a common-law duty to maintain the swimming area in reasonably safe condition arises. A government will be liable if it holds an area out to the public as suitable for swimming, regardless of whether the area had been formally designated for swimming. In this case, although the state had not formally designated the beach to be a public swimming area, there is no dispute that the beach was held out as a public swimming area by the city in which the beach is located. Further, the state made a conscious decision to allow the beach to be operated as a public swimming area when it signed an agreement for management of the beach with the city. The management agreement unquestionably demonstrates that the state was aware that the city would operate the beach as a public swimming area. The court then notes that common use of an area for swimming is only a factor to be considered in determining if a governmental entity held out the area as a public swimming area, or, as in this case, led the public to believe that the area was designated as a swimming area. Common use of a beach as a swimming area by itself does not create an operational-level duty requiring the state to maintain a swimming area with reasonable care.

The court next holds that the decision to impose liability on the state would not impose financial hardships because the management agreement between the city and the state contains an indemnification clause requiring the city to reimburse the state for any liability arising solely from ownership of the beach. Despite the state's claim that state law precludes government entities from entering into indemnity agreements, state law only prohibits government entities from entering into agreements to assume any liability for the other government entity's negligence. The agreement in this case is for the city to indemnify the state for the city's own negligence. Thus, the indemnification agreement at issue is not prohibited by state law.

The full text of this decision is available from ELR (8 pp., ELR Order No. L-183).

Counsel for Petitioner
Bruce G. Hermelee
Hermelee & Sharp
Ingraham Bldg.
25 SE Second Ave., Ste. 1135, Miami FL 33131
(305) 373-5444

Counsel for Respondents
Joel D. Eaton
Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin
City National Bank Bldg.
25 W. Flagler St., Ste. 800, Miami FL 33130
(305) 358-2800

[30 ELR 20407]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]