CYNTHIA SCOTT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANTWAN NELSON, A MINOR, DECEASED, APPELLANT,
v.
FUTURE INVESTMENTS OF MIAMI, INC., APPELLEE
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A mother brought a wrongful death action on behalf of her seven-year-old son who drowned in a water control canal behind an apartment complex. The trial court granted summary judgment for the defendant property owner, holding that owners of bodies of water owe no duty to fence or guard against the open and obvious danger of water to children, absent unusual or hidden dangers.
An owner of a body of water, natural or artificial, has no duty to fence it or post guards unless there is an unusual danger not generally existing in similar bodies of water or a dangerous condition constituting a trap. The appellee owed no duty to fence the canal or provide safety precautions against the open and obvious danger of water. Summary judgment was proper as a matter of law.
[1] The owner of a body of water, natural or artificial, generally has no duty to fence it or post guards or signs in areas not designated for swimming.
[2] Liability for a child's drowning in a body of water may arise only if there is an unusual danger not generally existing in similar bodies of water or if the water contain…
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Join FLexlaw to unlock all legal intelligence“The owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers.”
Establishes that owners of bodies of water have no liability for drowning absent unusual dangers or traps, and parental responsibility remains with caretakers.
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Join FLexlaw to unlock all legal intelligenceAppellant's seven-year-old son drowned in a water control canal running behind an apartment rented from appellee. The canal was owned by a third party…
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PER CURIAM.
We review the trial court’s granting of appellee’s motion for summary judgment.
Appellant’s seven year old son drowned in a water control canal running behind the apartment his aunt rented from the appel-lee. Someone else owned the canal, but appellant maintained the abutting backyard. The mother as personal representative brought a wrongful death action. She alleged that appellee’s failure to erect a fence or provide other safety precautions next to the sandy embankment with its sudden drop-off was negligent maintenance of the complex.
Saga Bay Property Owners Association v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987), rev. denied, 525 So. 2d 876 (Fla.1988), one of the authorities cited in the trial judge’s two page Final Summary Judgment, states at 692-693:
The owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers. To shift the responsibility to the [water] owner — by virtue of ownership alone — is to unreasonably require the owner to fill the [area] or fence it in order to guard against being held liable. (Citations omitted). An owner of a natural or artificial body of water has no duty to fence it. (Citations omitted). Likewise, an owner has no duty to post guards or signs in areas not designated for swimming. (Citations omitted).
Thus, there is no liability for a child’s drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water or the water contains a dangerous condition constituting a trap.
If the law is such for an owner of a body of water surely the law is at least the same for a nonowner. Appellant produced no evidence of sloping sand banks similar to those which imposed liability in Allen v. William P. McDonald Corp., 42 So. 2d 706 (Fla.1949). A “sharp drop-off” has been held not to be an unusual element of danger. Hendershot v. Kapok Tree Inn, Inc., 203 So. 2d 628 (Fla. 2d DCA 1967).
The existence of a legal duty is a question of law for the court and not for the jury. Paddock v. Chacko, 522 So. 2d 410 (Fla. 5th DCA 1988), rev. denied, 553 So. 2d 168 (Fla.1989). The trial judge found that the photographs admitted into evidence did not show any hidden trap or danger. We find no genuine issue of material fact and that the appellee is entitled to judgment as a matter of law. Accordingly, we affirm the granting of appellee’s summary judgment, but note as did the Saga court at 694 (citing Demuth v. Old Town Bank, 85 Md. 315, 319-20, 37 A. 266, 266 (1897) (citation omitted)):
This is a case of exceedingly great hardship, and we have diligently, but in vain, sought for some tenable ground upon which the [appellant] could be relieved from the loss that [an affirmance] of the decree appealed from will necessarily subject [her] to. But hard cases, it has been often said, almost always make bad law; and hence it is, in the end, far better that the established rules of law should be strictly applied even though in particular instances serious loss may be thereby inflicted on some individuals, than that by subtle distinctions invented and resorted to solely to escape such consequences, long settled and firmly-fixed doctrines should be shaken, questioned, confused or doubted. It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured.
GLICKSTEIN, GUNTHER and GARRETT, JJ., concur.
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Kaweblum v. Thornhill Ests. Homeowners Ass'n, Inc., 801 So. 2d 1015 (Fla. 4th DCA 2001)…ater or [*1018] that the canal contains a dangerous condition virtually constituting a trap. A canal’s “sandy embankment with its sudden drop-off’ was not held to render such body of water a hidden trap in Scott v. Future Investments of Miami, Inc., 559 So. 2d 726, 727 (Fla. 4th DCA 1990). Accord Corcoran v. Village of Libertyville, 73 Ill.2d 316, 22 Ill.Dec. 701, 383 N.E. 2d 177 (1978)(find-ing no hidden trap where drowning occurred in a drainage ditch which allegedly had a deceptively steep slope leading in…
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. William P. McDonald Corp., 42 So. 2d 706 (Fla. 1949)
- Saga BAY Prop. Owners Ass'n v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987)
- Richards v. Dep't of Health & Rehabilitative Servs., 522 So. 2d 410 (Fla. 3d DCA 1988)
- Hendershot v. The Kapok Tree INN, Inc., 203 So. 2d 628 (Fla. 2d DCA 1967)
- Paddock v. Chawallur Devassey Chacko, M.D., 522 So. 2d 410 (Fla. 5th DCA 1988)
- Paddock v. Chawallur DeVassy Chacko, M.D., 553 So. 2d 168 (Fla. 1989)