Florida/Georgia Personal Injury & Workers Compensation

...These are two completely independent issues. The presence of duty does not abrogate immunity and the absence of immunity does not create a duty. The operational versus planning dichotomy hopelessly commingles the issues of sovereign immunity and duty and should be abandoned. [1] Section 375.251, Florida Statutes, would exempt private persons from liability under these circumstances....

...Plaintiff alleged that the death of her six-year-old daughter was due to the negligence of the defendants. Pinellas County answered denying negligence and incorporating several affirmative defenses. In one defense the county asserted it was not liable because of section 375.251, Florida Statutes (1979)....

...The county moved for summary judgment on basis of the statute. The trial court recognized that our sister court in Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla.3d DCA), petition for review denied, 389 So.2d 1113 (Fla. 1980), held that section 375.251 does not apply to a county....

...ct was to immunize the county. Noting its ruling was consistent with other holdings in the Sixth Judicial Circuit, the trial court entered summary final judgment in favor of Pinellas County. This appeal ensued. We agree with Yelvington and hold that section 375.251 does not apply to counties....

...s who may be damaged by the acts or omissions of persons going thereon. (Emphasis supplied.) As the county observes, the Third District did not explicate its reasoning process in Yelvington. We think the obvious intent of the legislature in enacting section 375.251 was to encourage private owners and lessees *580 to open their land to the public for recreational use....

...A county, on the other hand, generally maintains its parks from available tax funds. When the statute was passed in 1963, counties were afforded sovereign immunity absent any waiver by legislative enactment. See Art. X, § 13, Fla. Const. No such waiver existed at that time, and it is logical to conclude that section 375.251 was not designed to immunize counties since they were already immune....

...We prefer to classify the plaintiff as a public invitee; but since the standard of care is identical with respect to each classification, the trial judge's ruling on this issue is not reversible error. The final point raised by the city of Pensacola is that section 375.251, Florida Statutes (1981), which provides a limitation on the liability of persons making property owned by them available to the public without charge for recreational purposes, should be applied to the city to relieve it of liability. We reject this contention because, as was held by the Second District in Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982), a governmental entity is not a "person" within the meaning of this statute. In our opinion, section 375.251 is intended to encourage private persons or entities to make their property available for public recreational use without being subject to liability for unknown hazardous conditions....

...by the Board. The adjacent strip of grass upon which the injury occurred was maintained by the Board and constituted property that was reasonably expected to be used as an entrance to or exit from the park. The final point made by the Board is that section 375.251, Florida Statutes (1981), should be applied to relieve it of liability to appellees....

...We reject this contention because the Board is a governmental entity charged with the responsibility of acquiring and maintaining property for the general welfare of the people and their use and enjoyment of such property for recreational purposes. § 266.101, Fla. Stat. (1981). As previously stated, section 375.251 is intended to encourage private persons and entities to open their private lands for public recreational use; it is not intended to protect governmental entities already charged with that responsibility....

...[1] She and her husband sued the County for damages arising from her injuries. A jury returned a verdict in favor of these plaintiffs and specially found that Mrs. Yelvington was sixty per cent negligent. From the trial court's judgment thereon both sides have appealed, and we affirm. The County asserts first, that Section 375.251, Florida Statutes (1975), relieves it of any duty of care toward any person who goes onto Pelican Harbor or any park area which it provides....

...jury could have concluded that Mrs. Yelvington slipped on a two or three-month buildup of algae. [2] The holding in McPhee was that the County, as a political subdivision of the sovereign, is immune from liability. Thus, the statement in McPhee that Section 375.251 does not apply to a county could be considered dictum. We now hold that Section 375.251 does not apply to a county.

...Mandell, of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant. Russell W. Layton, of Driscoll, Langstom, Layton & Kane, and Burton J. Green, Cocoa Beach, for appellees. ALDERMAN, Justice. This is a direct appeal from a circuit court's order upholding the constitutionality of section 375.251, Florida Statutes (1975), and granting defendants' motion for summary judgment....

...siness operation, along with a parking lot, restroom, and fish cleaning tables, *1380 was located near the boat ramp. Also in close proximity was defendants' wholesale fish house. In response to plaintiff's amended complaint, defendants pleaded that section 375.251, Florida Statutes (1975), shielded them from liability....

...The remaining issue is whether summary judgment is warranted in this case. In determining a motion for summary judgment, a trial court must resolve disputed facts and disputed inferences against the movant. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965). Section 375.251(2)(a)3(b) expressly affords no protection to owners and lessees who conduct commercial activity on the "park area." We find from a review of the record that a jury could reasonably infer that commercial activity was taking place on th...

...rks, we have no desire to discourage the development of parks by imposing unrealistic or unpredictable duties. In order to encourage outdoor recreation, the legislature has limited the standard of care of private persons who open land to public use. § 375.251, Fla....

...Williams' admission, together with the other allegations made by the plaintiffs on the question of control, was sufficient to raise a reasonable inference of a disputed material fact, so as to require that the motion be denied. Appellees also assert that under the provisions of Section 375.251, Florida Statutes (1979), [1] the defendant Williams owed no *1139 duty of care to keep the lake safe for entry or use by others or to give warning to persons entering or going on the lake of any hazardous conditions, structures or ac...

...us to one in a speeding boat. Because there are simply too many questions of fact unresolved by this record, we reverse the summary judgment, and remand the cause for further consistent proceedings. LARRY G. SMITH and SHIVERS, JJ., concur. NOTES [1] Section 375.251, Florida Statutes (1979), provides in pertinent part: (1) The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability t...

...against the United States for: injury or loss of property, or personal injury or death caused by the 1 In the court below, the United States also argued that Plaintiff’s action was barred by Florida’s Recreational Use Statute, Fla. Stat. § 375.251, and the district court relied on this statute as an alternate ground for dismissal of Plaintiff’s claim....

...1979), wherein that court overturned a summary judgment. However, after a review of the record, we hold the evidence at trial was legally insufficient to prove the appellant liable for plaintiff's injury. The appellant was legally entitled to the benefits under section 375.251, Florida Statutes (1975), and the court should have enforced its right....

...The Supreme Court ruled in that case that the trial court erred in granting a summary judgment in favor of appellant Sea Fresh Frozen Products, Inc. The key issue was whether or not Sea Fresh was conducting "commercial activity" on the ramp property to such an extent as to deprive it of the protection of section 375.251, Florida Statutes (1975)....

...[3] Both require a determination that there is no conflict of fact or inference therefrom to be determined by the jury. The Supreme Court has spoken on this very issue in this case. I feel we are bound by their decision. I would remand this case for a new trial only. NOTES [1] Section 375.251, Florida Statutes (1975) states in part: (1) The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability to persons goi...

HATCHETT, Circuit Judge: In this Federal Tort Claims Act lawsuit, we affirm the district court’s ruling that section 375.251, Florida Statutes, bars the action....

...Kleer filed this lawsuit alleging that the United States had a duty to warn him and other members of the public of the dangers of diving from the bridge, and alleging that the failure to warn was the proximate cause of his injuries. The United States moved to dismiss the action on the ground that Fla.Stat. 375.251 barred the action. On the eve of trial, the district court entered an order involuntarily dismissing Kleer’s suit, pursuant to Fed.R.Civ.P. 41(b). * Kleer contends that Fla.Stat. 375.251 provides no protection to the United States under the facts of this case. Kleer contends that section 375.251(2)(b) specifically provides that the owner or lessee of property is not entitled to the protection of the statute if there is any charge made or usually made for entering or using the park area, or any part thereof....

...n occurred.” 28 U.S.C.A. §§ 1346 (b), 2674; McCorkle v. *1494 United States, 737 F.2d 957, 959 (11th Cir. 1984). Florida law limits the liability of persons who make available to the public without charge certain areas for recreational purposes. Section 375.251 provides: (1) The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability to persons going thereon and to third persons who may be damaged by the acts or omissions of persons going thereon....

...The single issue presented is whether the statute bars this action where a part of the park area is used for commercial purposes and another part, where the injury occurred, is not used for commercial purposes. Our resolution of the issue turns upon the construction of section 375.251 in Abdin v....

...The Abdin Decisions The injury in Abdin occurred when the plaintiff slipped and fell on the defendant’s boat ramp. In addition to the boat ramp, which was open to the public without cost, the defendant maintained a retail and a wholesale business on three separate parcels of land. Relying upon section 375.251, the state trial court entered summary judgment for the defendant....

...It remanded the action for a determination of whether “commercial activity was taking place on property which defendants allege is a ‘park area.’ ” Abdin, 374 So.2d at 1381 . On appeal after remand, the Fifth District Court of Appeals concluded that the defendant was “legally entitled” to invoke the protection of section 375.251 because “the evidence at trial was legally insufficient to prove the [defendant] liable for [the] plaintiff’s injury.” Sea Fresh Frozen Products, Inc....

...In other words, no commercial activity was conducted within the distinct “park area” where the boat ramp was located. The fact that commercial activity was conducted in other areas of the defendant’s property did not preclude the defendant from invoking the protection of section 375.251. *1495 B. Statutory Construction The Abdin rule is consistent with the purpose of section 375.251. As an elementary principle of statutory construction, we must accord the unambiguous language of the statute its “plain meaning.” Rickard v. Auto Publisher, Inc., 735 F.2d 450, 454-55 (11th Cir.1984). The clear intent of section 375.251 is, by its terms, to encourage private landowners to make their land available to the public for outdoor recreational purposes. Fla.Stat.Ann. § 375.251(1)....

...The government further suggests that, even if the decision not to provide physical safeguards is not a discretionary decision, no duty was owed to Plaintiff to provide such safeguards. Secondly, the government argues that the Florida Recreational Use Statute, Fla.Stat. § 375.251, which limits the liability of persons who make available to the public certain areas for recreational use, applies to bar this FTCA suit. The government states that Section 375.251 applies to the instant action because Fort Jefferson National Monument is within Florida's state boundaries, the injury to plaintiff occurred in a park where no entrance fee is charged, and no "commercial activity" occurred in the area of the park where Plaintiff's injury took place....

...favor of Defendant. A. Fort Jefferson is within Florida's boundaries and therefore the statute is not applied extraterritorially. Defendant asserts that recovery in this lawsuit is further precluded by the Florida recreational use statute, Fla.Stat. § 375.251....

...purposes without charge. The statute specifies under subsection (2)(a) that the same entity owes no duty of care to keep the park area safe or to give warnings to persons on the park area of any hazardous conditions. Plaintiff argues that Fla.Stat. § 375.251 does not apply because Fort Jefferson is located in the Dry Tortugas and not within the state of Florida....

...Whether application of the Florida Recreational Use Statute is preempted by Federal law in this suit and therefore not available to bar this suit. Plaintiff claims that the application of the Florida recreational use statute is preempted by Federal law in this FTCA suit. Contrary to Plaintiff's position, Fla. Stat. § 375.251 applies to FTCA actions where the requirements of the statute are met. Kleer v. U.S., 761 F.2d 1492, 1493 (11th Cir.1985). In Kleer, the Eleventh Circuit affirmed the district court's ruling that § 375.251 applied to bar an FTCA suit involving a national forest area. Therefore, both the FTCA and Fla.Stat. § 375.251 are applicable to the instant action. C. Whether Fla.Stat. § 375.251(2)(b) precludes the suit from being barred where no charge was made for entering or using the area of the park in which the injury occurred, and where the injury occurred in an area of the park where "commercial activity" did not take place. Subsection (2)(b) of Fla.Stat. § 375.251 contains two clauses which, according *1582 to Defendant, apply to bar the instant suit....

...ther activity, whereby profit is derived from the patronage of the general public, is conducted on such park area or land, or any part thereof." Plaintiff first claims that charging fees for licenses constitutes "commercial activity" under Fla.Stat. § 375.251(2)(b)....

...ial activity on any part of their land. However, the Eleventh Circuit held that the phrase "park area" in subsection (2)(b) "denotes something less than the entire parcel of land." Kleer, 761 F.Supp. at 1495. The court went on to hold that Fla.Stat. § 375.251(2)(b) bars suits for injuries sustained in areas of parks where no fee is charged and no commercial activity takes place. Kleer, 761 F.Supp. at 1495. The clear intent of Fla.Stat. § 375.251 is, by its terms, to encourage persons to make their land available to the public for outdoor recreational purposes by limiting the liability of those persons. Fla.Stat. § 375.251(1). Plaintiff's construction of the statute is contrary to the very purpose of Fla.Stat. § 375.251....

...he statute's application to the instant case. Kleer, supra. Therefore, since no fee is charged by the government for entrance to or for use of the park and no "commercial activity" occurred in the distinct area where Plaintiff was injured, Fla.Stat. § 375.251 applies to bar the instant FTCA action. At oral argument on the instant motion, Plaintiff's counsel argued that Fla.Stat. § 375.251 should not be applied to this case because Fort Jefferson does not fall within the statutory definition of "outdoor recreation." The term "outdoor recreational purposes" as used in the statute includes, but *1583 is not necessarily limited to, hunting, fishing, swimming, boating, camping, picknicking, hiking, pleasure driving, nature study, water skiing, motorcycling, and visiting historical, archaeological, scenic, or scientific sites. Fla.Stat. § 375.251(5)....

...Because the Fort building is a historical site and the area which comprises Fort Jefferson is intended to be used for fishing, swimming, camping, picknicking, and nature study, the court finds that Fort Jefferson is within the purview of Fla.Stat. § 375.251....

...ns. The maintenance of a recreation area is not a necessary or governmental function. The accident occurred at a recreation area. Therefore, the procuring of insurance for such a function does not waive sovereign immunity. The appellees also rely on Section 375.251, Florida Statutes (1975) for immunity....

...of the property surrounding the old bridge is not clearly erroneous. The United States further claims immunity from liability under the limitation on liability provisions of Florida’s Outdoor Recreation and Conservation Act of 1963, Fla.Stat.Ann. § 375.251 (West 1974). Section 375.251 exempts from tort liability landowners who gratuitously provide the public with outdoor recreational areas....

...The district court found that the statute did not apply here because the City of Parker and Bay County, not the United States, provided the old bridge as a recreational area. The United States argues that Kleer v. United States, 761 F.2d 1492 (11th Cir.1985) should control. In Kleer , we held that section 375.251 barred a suit brought against the United States by a plaintiff who was injured in a section of the Ocala National Forest that had not been developed for recreational use, but was nonetheless available to the public for recreation....

...Kleer involved a recreational area provided by the United States. Here the United States provided neither the recreational fishing pier nor the approach to the pier. We therefore affirm the district court’s rejection of the United States’ claim that section 375.251 shields it from liability in this case....

...Stat.) by placing specific dollar denoted limitations on recoveries that the statute permits against sovereign entities. The trial court held: (1) that the 1987 statutory amendment applied constitutionally and retroactively to appellant's action against the county, and (2) that section 375.251, Florida Statutes, which limits the liability of persons making available to the public certain areas *298 for recreational purposes without charge, applied to the county-owned park and operated to bar appellant's action against the county. The trial court erred in applying section 375.251, Florida Statutes, to the county-owned and operated park....

...1989), that persons, like appellant, who have an accrued cause of action although not yet reduced to judgment, have such a vested interest as cannot be constitutionally retroactively divested by legislative action. The final summary judgment in favor of the county, based on the application of section 375.251, Florida Statutes, to the county-owned park, and the retroactive application of Chapter 87-134, Laws of Florida, is reversed and the cause remanded for further proceedings....

PER CURIAM. The trial court entered a final summary judgment in favor of the county on the sole basis that the duty of care owing to Cakora as set forth in Section 375.251, Florida Statutes (1977), was not violated. Subsequent to the entry of this judgment, we held in Metropolitan Dade County v. Yelvington, 389 So.2d 1113 (Fla. 3d DCA 1980), that Section 375.251, Florida Statutes (1977), is not applicable to counties....

...negligence at 25%. On appeal, defendant contends the trial court erred in failing to direct a verdict because plaintiff has not proven the requisite special duty necessary to establish the liability of a public officer. Appellant also contends that Section 375.251, Florida Statutes (1979), limits liability for injury in parks and provides immunity in this case....

...Otherwise, the Motion is DENIED. *1293 2.The Clerk of Court is directed to terminate all pending motions and deadlines as moot and close the file. . The Department of the Interior denied Wills's claim on the alternative basis that Florida’s recreational use statute, Fla. Stat. § 375.251 , applies and shields the United States from liability....

...nterrogatories, and admissions on file,” designate specific facts showing that there is a genuine issue for trial. Id. at 324 , 106 S.Ct. at 2553 . The United States has moved for summary judgment stating that Florida’s recreational use statute, Section 375.251(2), bars Plaintiffs’ claims....

...The parties do not dispute that the United States, treated as a private person, may avail itself of the limitations of liability provided by Florida’s recreational use statute. Plaintiffs correctly contend that the government is also subject to the exclusion in the statute. In relevant part, section 375.251 provides: An owner or lessee who provides the public with a park area or other land for outdoor recreational purposes owes no duty of care to keep that park area or land safe for entry or use by others, or to give warning to persons e...

...y made for entering or using such park area or land, or any part thereof, or if any commercial or other activity, whereby profit is derived from the patronage of the general public, is con *1387 ducted on such park area or land, or any part thereof. § 375.251(2)(b) (emphasis supplied)....

...This case is distinguishable from the cases cited by the United States, in which the undisputed facts were clear that the government did not charge a fee or engage in any commercial activity in the area in question. See Zuk v. United States, 698 F.Supp. 1577, 1582 (S.D.Fla.1988) (action barred by Fla. Stat. § 375.251 ; licensing fees charged to boat and seaplane charger operators do not “change the fact that no charge is made for entering or using the park area”); Kleer v....

...The interpretation of the water district recreational use immunity statute presents an issue of first impression. However, for guidance we look to cases interpreting the comparable recreational use immunity statute protecting private landowners. See § 375.251, Fla. Stat. (1991). These cases show that the determination of the facts that may trigger the statute are for the jury. In Abdin v. Fischer, the Supreme Court reversed summary judgment based on section 375.251, ruling that questions of fact remained before the statute could be applied....

...The supreme court reversed on that basis, holding that a jury could reasonably infer that the commercial activity was taking place on the property. See id. at 1381 . The first district also reversed a summary judgment for a private landowner which was based on section 375.251 in Arias v....

area of any hazardous conditions.” Fla. Stat. § 375.251(2)(a). We must decide whether the statute applies