MARIA NAVARRO, ETC., ET AL., APPELLANTS,
v.
COUNTRY VILLAGE HOMEOWNERS' ASSOCIATION, ET AL., APPELLEES

Fla. 3d DCA | 1995-04-12
No. 94-972
Before BARKDULL, COPE and GODERICH, JJ.
654 So. 2d 167 Florida District Court of Appeal, Third District (1995) Positive Treatment
Cited by 7 cases

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Synopsis

A dissenting opinion argues that a defendant should not be required to plead for attorney's fees if the time to answer the complaint has not yet matured, citing precedent where a defendant was not required to plead fees before a voluntary dismissal.


Holding

The dissenting judge believes a defendant should not be required to plead for attorney's fees if the time to answer the complaint has not yet matured, as the opposing party's actions (like voluntary dismissal) can prevent the defendant from needing to file an answer.


Headnotes

[1] A sudden drop-off in a lake does not, as a matter of law, constitute a concealed dangerous condition for purposes of imposing liability on the owner.

[2] The owner of an artificial body of water is not liable for drownings unless the body of water is constructed to be a trap or presents an unusual element of danger not typ…

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Facts & Procedural History

The dissenting judge discusses a prior case, Bruce v. Barcomb, where a defendant filed a motion to dismiss without seeking attorney's fees, and the pl…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The plaintiffs, Maria Navarro, etc., et al, appeal from the final summary judgment entered in favor of the defendant, Country Village Homeowners’ Association, in a wrongful death action. We affirm.

On June 22, 1990, in the late afternoon, Juan Navarro, age 35, took his two children to play in a lake in the residential development where they lived. Sometime after entering the lake with his children, Mr. Navarro, who did not know how to swim, drowned after stepping into a deep drop-off where the lake drastically changed from shallow water to deep water. At the time of his death, Mr. Navarro had lived in the development with his family since 1986 (about 4 years). The lake where he drowned and its beach area were owned, operated, and maintained by the defendant for the exclusive use of its residents. The lake’s beach area was adjacent to a picnic area and had several signs posted that stated, “Deep Water” and “Swim At Your Own Risk.”

Subsequently, the plaintiffs sued the defendant and alleged that the decedent’s death was caused by the defendant’s careless and negligent operation and maintenance of the lake area. Specifically, the plaintiffs argued that the defendant had a duty to maintain the lake area in a safe and reasonable condition and that the defendant had breached that duty by not having sufficient or reasonable signs warning of a sudden, deep water drop-off not far from shore, by constructing and/or maintaining the lake so that it had a hidden, deep water drop-off in an area not far from shore, by not prohibiting swimming in an area that it knew, or should -Rave known, would be dangerous to persons entering the lake, and by not having supervisory or lifeguard personnel in an area that it knew, or should have known, was dangerous.

Thereafter, relying on Saga Bay Property Ass’n v. Askew, 513 So. 2d 691 (Fla. 3d DCA 1987), review denied, 525 So. 2d 876 (Fla.1988), the defendant filed a motion for summary judgment arguing that in Florida, as a matter of law, a drop-off in a lake is not a hidden danger so as to impose liability. The trial court ruled that Saga Bay was controlling and that the facts did not support an action for negligence. Consequently, the trial court granted final summary judgment for the defendant, and this appeal follows.

The plaintiffs contend that the trial court erred, as a matter of law, by entering final summary judgment in favor of the defendant where the decedent was the defendant’s invitee, who was owed a duty of care, and whose death was proximately caused by defendant’s negligence. We disagree.

“Under Florida law, the general rule is that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally.” Kinya v. Lifter, Inc., 489 So. 2d 92, 94-95 (Fla. 3d DCA), review denied, 496 So. 2d 142 (Fla.1986). “The lake’s sharp change in depth is characteristic of lakes and does not constitute a concealed dangerous condition.” Saga Bay, 513 So. 2d at 693-94; see Hendershot v. Kapok Tree Inn, Inc., 203 So. 2d 628 (Fla. 2d DCA 1967).

We find, as in Saga Bay, that a deep water drop-off does not constitute a concealed dangerous condition, and thus, the defendant below cannot be held liable for negligence in connection with the decedent’s death. Therefore, the trial court properly entered final summary final judgment in favor of the defendant where there was no genuine issue as to any material fact, and the defendant was entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c).

Accordingly, we affirm.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Selvin v. DMC Regency Residence, Ltd., 807 So. 2d 676 (Fla. 4th DCA 2001)
    …y to the lake owner — by virtue of ownership alone — is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable.” [e.s.] 513 So. 2d at 693-694; see also Navarro v. Country Village Homeowners Ass’n, 654 So. 2d 167 (Fla. 3rd DCA 1995) (deep water drop-off did not constitute concealed dangerous condition and thus, under Saga Bay association could not be held liable for negligence in connection with resident’s death). Similarly in Walters v. Greenglade Villas Ho…
  • …There is no other evidence concerning the lake or the circumstances of the drowning. [FN7] [*1270] Saga Bay I, 513 So. 2d at 693-94 (emphasis added) (some citations and footnotes omitted). Likewise, in Navarro v. Country Village Homeowners’ Ass’n, 654 So. 2d 167, 168 (Fla. 3d DCA 1995), we observed: Under Florida law, the general rule is that the owner of an artificial body of water is not guilty of actionable negligence for drownings therein unless it is so constructed as to constitute a trap or unless th…
  • Kenley v. Inwood Prop. Invs., Inc., 931 So. 2d 1053 (Fla. 4th DCA 2006)
    …ake owner — by virtue of [*1054] ownership alone- — -is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable.” [e.s.] 513 So. 2d at 692-93; see also Navarro v. Country Village Homeowners’ Ass’n, 654 So. 2d 167 (Fla. 3d DCA 1995) (deep water drop-off did not constitute concealed dangerous condition and thus, under Saga Bay, association could not be held liable for negligence in connection with resident’s death). Likewise, in Walters v. Greenglade Villas H…

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