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Court requires safeguards on public beaches

Along with allure must come protections from or warnings about any unseen hazards, it rules in a Miami Beach case.

Associated Press
Published March 25, 2005

TALLAHASSEE - The beach where 29th Street ends at the Atlantic Ocean in Miami Beach seemed to Eugenie Poleyeff like a great place to go swimming.

It was better than the beach a few blocks away, where she and her husband were staying, because it had a place to change and shower and some food concessions. It was almost like the city was saying, "Swim here."

But on the day in 1997 when she went there, one of the amenities it didn't have was a lifeguard close by, and there was no warning of the possible danger from rip currents that day.

Poleyeff got caught in a current, and she and another tourist who tried to rescue her drowned.

On Thursday, the Florida Supreme Court said when Miami Beach made that place attractive to swimmers, it also had an obligation to warn them of known dangerous conditions.

The narrowly divided court also cited an earlier opinion in which it held that once a city decides to operate a swimming facility, "it assumes the common law duty to operate the facility safely."

That includes the requirement to warn the public of any dangerous conditions it knew or should have known about, the court said in one of two majority opinions.

The court's 4-3 ruling could have broad implications for local governments up and down Florida's coasts.

It may force cities to "to close beaches down or restrict access, or prevent people from enjoying the ocean," said Christopher Bellows, the lawyer who argued the case for Miami Beach.

But the attorney for the family of Zachary Breaux, who drowned trying to save Poleyeff, said the implications aren't so dire.

"I don't think this decision is going to impose any great burden on any municipality," said Nancy Little Hoffmann. She said in many cases, signs might be enough to warn swimmers, and many cities already put those up.

Justice R. Fred Lewis, who wrote one of the majority opinions, said all beaches wouldn't have to be marked, or guarded - only those where swimming seems to be encouraged.

"Here, the city engaged in affirmative actions that effectively designated the beach located at 29th Street as a public swimming area and derived revenue from that activity," Lewis wrote. "It is from that activity of designating this swimming area that the source of the governments' duty arises."

Miami Beach had argued that there are activities where danger is inherent, and people simply have to assume some risk.

Three of the justices agreed with the city. In a dissenting opinion, Justice Charles Wells wrote for the minority, "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, rip tides, sandbars, coral reefs, lightning, and literally thousands of other natural dangers."

Miami Beach has tried to eliminate some such dangers since that day in 1997. It has put a lifeguard stand at 29th Street.

The Supreme Court didn't rule in the specific wrongful-death cases. A jury will still have to decide whether Miami Beach is liable for the deaths of Poleyeff and Breaux.

[Last modified March 25, 2005, 01:00:17]

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