City of Miami Beach v. Manuel Menendez, etc.

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 27, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1465 Lower Tribunal No. 20-6437 ________________

City of Miami Beach, Appellant,

vs.

Manuel Menendez, etc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Rafael A. Paz, City Attorney, Henry J. Hunnefeld, First Assistant City Attorney, and Freddi R. Mack, Senior Assistant City Attorney, for appellant.

Fernandez & Alvarez, P.A., and Ralph E. Fernandez (Tampa), for appellee.

Before EMAS, FERNANDEZ and LINDSEY, JJ.

PER CURIAM. Affirmed. See Breaux v. City of Miami Beach, 899 So. 2d 1059, 1066

(Fla. 2005) (“We hold that based on the undisputed facts, [Miami Beach]

controls the beach area and was operating a public swimming area at the

29th Street location at the time of the accident. Thus, the City had a duty of

care to warn of dangers that were known or should have been known, and

is not shielded from liability as a matter of law based on sovereign

immunity.”); Florida Dept. of Nat. Res. v. Garcia, 753 So. 2d 72, 77 (Fla.

2000) (“[W]here an area such as South Beach is a well-known public

swimming area . . . the State has no basis for claiming immunity from suit

merely because a formal designation as a state park did not occur.”); Butler

v. Sarasota Cnty., 501 So. 2d 579, 579 (Fla. 1986) (“[O]nce the

[governmental] unit decides to operate the swimming facility, it assumes the

common law duty to operate the facility safely, just as a private individual is

obligated under like circumstances. . . . [T]he public owner did not create the

specific dangerous condition but did create a designated swimming area

where the dangerous condition existed.”); Burton v. MDC PGA Plaza Corp.,

78 So. 3d 732, 734 (Fla. 4th DCA 2012) (“A plaintiff's awareness of a

dangerous condition does not negate a defendant's potential liability for

negligence in allowing the dangerous condition to exist; it may be relevant,

however, to a determination of comparative negligence.”).