Edwin Peck, Attorney at Law
Liability for operating a public swimming area
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Public Swimming Area, Liability

*member of the Florida Bar

Municipal liability for operating a public swimming area.

 

On March 24th, 2005 the Florida Supreme Court issued its opinion in Breaux vs. City of Miami Beach, 899 So.2d 1059, March 24, 2005 (Fla. 2005), providing a municipally has obligations to protect swimmers when it operates a public swimming area.  The case was returned to the trial court for a jury determination on whether the city breached its duty and if that breach contributed to the loss.

 

Facts

While swimming in the Atlantic Ocean adjacent to the 29th Street beach area, Ms. Poleyeff was caught in rip currents.  Upon hearing Ms. Poleyeff’s calls for help, Zachary Breaux,  attempted to save her.  Tragically, they were both overcome by the rip currents and drowned.

The City provided public restrooms with showers, water fountains, telephones, picnic tables and there was metered parking adjacent to the beach on 29th Street.  In addition, the City licensed Hurricane Beach Rentals to operate at that location.  Hurricane Beach Rentals rented to beach users a variety of equipment, including lounge chairs, umbrellas, and watercraft.  The City required the concessionaire and its employees to wear identification badges issued or approved by the City.

 

Holding

When a municipality operates a public beach as a swimming area, the municipality has a duty to exercise reasonable care under the circumstances to those foreseeable users of that swimming area.

That the totality of the circumstances in this case demonstrates that the City was operating a “public swimming area” at the 29th Street location.  The City knew that the public was using this location for swimming.  There were no signs warning the public not to swim and both the Poleyeff family and the Breaux family saw people using the area for swimming.  Moreover, although the City did not have a lifeguard station at the 29th Street beach area, the City built beach facilities at this location and provided metered parking at the end of 29th Street.  Of even greater significance, the City licensed a concessionaire to rent beach chairs, umbrellas, and watercraft at this location, thereby deriving revenue from the public’s use of this particular beach area.

 

Facts relating to North Redington Beach, Florida:

 

The Town

  • knows that people swim in the Gulf of Mexico.
  • provides parking for residents and issues parking decals, a fee is to be set by resolution not for revenue production but to cover cost of printing.
  • requires concessions to have a license and charges a fee.
  • maintains beach access points.
  • cleans and rakes the beach.
  • provides trash containers.
  • marks a “no anchoring zone”.  (the history of that ordinance shows that it was passed for the protection of swimmers)
  • has regulations which are enforced regarding the use of the beach.

 

North Redington Beach’s facts are somewhat different then the facts in the Miami case.  The Town does not provide baths, tables or showers, nor are the fees charged for concessions and parking intended to produce revenue.  It is my opinion that under our facts a court could concluded that the North Redington Beach may operate a public swimming area.  The Supreme Court held that when a municipality operates a public beach as a swimming area it has a duty to exercise reasonable care under the circumstances to those foreseeable users of that swimming area.

 

What others are saying:

“In my opinion, the most responsible step for a city to take would be to follow the last comment of Peck and to erect proper signage to warn persons unaware of local hazards. That may not improve the beauty of the beach, but it would give tourists a reasonable chance to survive their vacations to the Sunshine State.” Riptide Drownings At City Beach, Bob Carroll, Attorney at Law, Perenich, Carroll, Perenich, Avril, Caulfield & Noyes, P.A., September 21, 2005.

 

“‘(The) Supreme Court says a municipality is liable for public swimming areas,’ said Edwin Peck, town attorney, as he led the discussion at the April 14 Town Hall meeting on the town’s potential liability in light of a recent state Supreme Court decision.” Breaux vs. Miami Beach washes liability issues onshore, Carlson, Beach Beacon, May 10, 2005.