In this latest installment in our exclusive series on the three Florida Supreme Court justices up for retention on the November ballot, Sunshine State News takes a look at a ruling that could have opened taxpayers up to innumerable lawsuits for natural happenings beyond their control.

Although Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince are insisting that voters should ignore their rulings when they head to the polls, and consider only whether these justices have ever committed a crime, their critics and other legal scholars say otherwise, i.e., that it is absolutely relevant to their retention that voters consider whether these justices are interpreting relevant law according to its original public meaning, or whether they are activists who ignore the law and impose their own personal moral philosophy on cases that come before them.

(For the last several weeks Sunshine State News has unsuccessfully reached out to the three justices [who are traveling around the state to sit down with newspaper editorial boards] to interview for this series.)

In March 2005, the Florida Supreme Court issued its ruling in the case Breaux v. City of Miami Beach. The case was brought by the estates of two swimmers who drowned from rip currents in the ocean, near the 29th Street beach area of the City of Miami Beach.

Under the common law – the centuries-in-the making, unwritten body of law that governs tort actions unless federal or state statutes explicitly override it – an owner or controller of property owes a special “duty of care” to anyone he explicitly or implicitly invites onto the property: he must keep the premises in a reasonably safe condition and warn the public of any dangerous conditions the owner knows or should know about. An owner – even a governmental owner – will be held liable for negligence if he fails in this duty.

(State and local governments were traditionally immune, under the common law, from being sued in court, but Florida voluntarily waived this immunity through a statute the Legislature passed in 1976.)

An appeals court dismissed the plaintiffs’ suit, on the grounds that the City did “not control the [swimming] area or undertake a particular responsibility to do so,” and so was not subject to the common law tort of negligence.

The Supreme Court disagreed. In an opinion authored by Pariente (who was Chief Justice at the time), and joined in by Lewis and Quince and one other justice, the court held that the City of Miami Beach had “operate[d] [the] public beach as a swimming area by having public restrooms, showers, water fountains, parking, and a beach concessionaire from which it derive[d] revenues.”

Justice Charles T. Wells and two other justices dissented from the majority opinion, saying that it was “in conflict with [the] Court's long-standing precedent ... and w[ould] have serious adverse consequences for the state, county, and municipal beach areas of Florida.”

Wells noted that in all the previous cases in which the court found that cities could be held liable for negligently managing beach areas, those waters had been explicitly operated by the cities as swimming areas. By contrast, in the instant case:

“On the date of the drownings, the [Miami Beach] City Council had neither put a lifeguard station at the 29th Street area nor decided that the ocean adjacent to this area of beach was to be treated as a swimming area. The City had not changed or improved the ocean or ocean bottom in this area. The City had in no way marked the area for swimming.”

As to the restrooms the majority referred to, they had been in place for nearly 50 years, well before any of the shoreline had been developed and improved by the City.  According to Wells, there was no legal precedent for considering the City to have established a public swimming area merely because it opens a beach up to the public.

Wells summed up his frustration with the majority:

“Rather than exposing Florida's governmental entities where our beaches are located to tort liability, this Court should respect that the ocean and gulf waters adjacent to these beaches are filled with natural dangers which are controlled only by nature and that these dangers are simply inherent in the use of these waters. There are sharks, barracudas, stingrays, jelly fish, undertows, riptides, sandbars, coral reefs, lightning, and literally thousands of other natural dangers. Courts in other states with extensive beaches have recognized that there can be no tort recovery against the government from injuries caused by these natural transitory dangers in the ocean.”

Wells predicted that the court’s ruling would have a chilling effect on public access to the hundreds of miles of Florida’s beaches, as it would be financially impractical for city governments to post lifeguards and warning signs all along the coast, and to post warnings to potential swimmers of every possible natural occurring danger a swimmer might face.

It turns out the Breaux decision did not have this effect, thanks to the state Legislature, which in the wake of the decision added Section 380.726(6) to the Florida Statutes. The section reads --

“Due to the inherent danger of constantly changing surf and other naturally occurring conditions along Florida’s coast, the state, state agencies, local and regional government entities or authorities, and their individual employees and agents, shall not be held liable for any injury or loss of life caused by changing surf and other naturally occurring conditions along coastal areas, whether or not uniform warning and safety flags or notification signs ... are displayed or posted.”

Readers can review the Florida Supreme Court’s decision in this case for themselves, and determine whether Justices Pariente, Lewis, and Quince faithfully followed judicial precedent, or whether they invented a new legal doctrine to achieve a desired result for victims’ families. 

Reach Eric Giunta at egiunta@sunshinestatenews.com or at (954) 235-9116.