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Wed 22nd May | 2024

The Week In Torts – Cases from May 17, 2024

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An uncompensable tragedy

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 20

MAY 17, 2024

NO ERROR IN GRANTING SUMMARY JUDGMENT FOR DEFENDANTS BASED ON COURT’S DETERMINATION THAT DEFENDANTS OWED NO DUTY TO CREATE A BARRIER BETWEEN ITS PROPERTY AND THE RIVER – PURSUANT TO THE “BODY-OF-WATER” RULE, ABSENT AN UNUSUALLY DANGEROUS CONDITION AN OWNER OF PROPERTY NEAR A NATURAL OR ARTIFICIAL BODY OF WATER HAS NO DUTY TO FENCE IT

Feliciano v. Rivertree Landings Apartments, LLC, 49 Fla. L. Weekly D1002 (Fla. 2nd DCA May 10, 2024):

The plaintiff and her two children lived in an apartment owned by the defendant Rivertree and managed by another entity. She sued both companies stemming after her six-year-old autistic daughter drowned in the portion of the Hillsborough river that abutted the apartment complex property.

The complex contained fencing in certain areas, including around a pool several yards away from the river. The residents are free to walk unobstructed from the pool sidewalk down the grassy slope to the river. A retaining wall abuts the Rivertree property with two signs that read “Caution” posted on the grassy area.

The plaintiff and her children lived in a first-floor apartment. Her daughter required constant supervision, which was provided by the plaintiff and her 16-year-old son. On the day of the incident, the woman’s daughter exited their apartment unnoticed.

Surveillance video showed the child walking along the river’s edge until she was obscured by a tree, and ripples were seen in the water followed by splashing. There was no clear evidence establishing how the child entered the river (accidentally or purposefully).

The plaintiff’s complaint alleged that both defendants allowed a dangerous and defective condition to be created by failing to maintain a barrier to section off the river.

The defendants moved for summary judgment asserting that based on Florida law, it had no duty to fence off access to the river along its property, unless it could be established that something about that river at that location constituted a danger not normally found with similar bodies of water.

Notwithstanding the undisputed dangers of the area (the steep slope down to the water, the uneven shoreline, etc.), the defendants asserted that there were no unusual dangers present in Florida’s rivers.

The plaintiff argued that under section 83.51(2)(a)(3), the defendant owed the residents a duty to maintain the common areas in a clean and safe condition. She further alleged that the undisputed evidence was that the area was deadly, unsafe, and dangerous, and contained a very steep slippery hill directly into the river, and there was no fence or barrier at the water’s edge to protect residents from falling into it.

Plaintiff offered expert testimony establishing that the slope of grassy area leading to the river was steep and dangerous and in excess of the 4 to 1 standard that is advocated. The expert also opined that the grassy area should have been fenced off.

The trial court granted summary judgment finding there were no disputed issues of material fact and that any facts the parties did disagree about were not material to the ultimate issue of the defendant’s duty that had been allegedly breached. The court further concluded that based on abundant case law, the property owner had no duty to erect a fence or barrier separating their property from a natural body of water.

The appellate court found that Florida’s “body-of-water” rule controlled the outcome. That general rule provides that owners of property near bodies of water are not guilty of actionable negligence on account of drowning unless the bodies of water are constructed so as to constitute a trap or unless there is some unusual element of danger lurking about them, not generally existing in similar bodies of water.

The court found the landowner’s duty turned on whether the circumstances created some unusual element of danger lurking about the body of water that did not exist in similar bodies.

While the plaintiff maintained that the conditions at issue were unusual because the ground was uneven, the slope was steep, and there was no fence or barrier, the plaintiff still failed to show any evidence of a trap or unusual element of danger associated with the riverbank adjacent to the complex.

While the plaintiff was correct that section 83.51(2)(a)(3) does require the landlord of a dwelling unit to make reasonable provisions for the clean and safe condition of common areas, these reasonable provisions need only include fencing off a body of water if the particular circumstances create an unusual element of danger not presented by similar bodies of water, which was not the case here.

The court also rejected that the “body-of-water” rule should not be applied to child invitees because the case law does not make such a distinction. There was no evidence in the case that these defendants owed a higher duty of care.

Consequently, the court affirmed the summary judgment.

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TRIAL COURT ERRED BY SUA SPONTE DISMISSING ACTION AS SANCTION FOR PLAINTIFF’S FAILURE TO COMPLY WITH ORDER OF REFERRAL TO ARBITRATION

Michaels v. Johnson, 49 Fla. L. Weekly D971 (Fla. 4th DCA May 8, 2024):

The trial court entered an order of referral to arbitration. No language in the order stated that a failure to comply would result in dismissal or other sanctions.

Approximately nine months later, the trial court, sua sponte dismissed the plaintiff’s action as a sanction for failure to comply with the order and closed the case. The dismissal order did not include the necessary findings required by Kozel.

Due process demands notice and an opportunity to be heard before dismissal.

Here, the trial court did not provide the plaintiff with notice of its intent to dismiss the action as a sanction or allow for an opportunity to be heard before dismissal. Moreover, the order of referral did not include language advising that the failure to comply would result in dismissal. The plaintiff was therefore denied due process, and the court reversed.