PUBLIC SAFETY AND LIABILITY ISSUES

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PUBLIC SAFETY AND LIABILITY ISSUES

• Josh Clemons
• Research Counsel
• MS-AL Sea Grant Legal Program
• -------
• Beach Safety Educational Workshop
• St. Petersburg, Florida
• March 18, 2005

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TWO TOPICS

• Public Safety
• Publics right to use the shore vs. governments
  right to limit use to protect public safety.
  
• Liability Issues
• Rip current warnings.

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FIRST TOPIC Use vs. Safety

• People have the right to use the public shore.
• BUT
• The government can restrict that use to protect
  public safety.
  

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THE PUBLIC TRUST DOCTRINE

• Florida Constitution state holds shore in
  trust for all the people.
  

Ensures publics right to use shore for bathing
and other purposes.
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THE GOVERNMENTS POLICE POWER

• Police power governments authority to make and
  enforce laws to protect the publics health,
  safety, and general welfare.
  
• A very broad power.
• Allows government to close
• public beaches to protect
• public safety.

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POLICE POWER

• Police power resides in the state. The state can
  delegate it to local governments.

POLICE POWER
CITY HALL
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POLICE POWER

• Local governments have the police power only
  within their boundaries.

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POLICE POWER

• Local ordinances must be
• Nondiscriminatory, and
• Reasonable, meaning
• Rationally related to public health, morals,
  safety, or general welfare, and
  
• Reasonably designed to correct a condition
  adversely affecting the public good.
  

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FLORIDA COURT CASES

• Florida courts have held
• Cities can regulate and restrict public beach
  access, and use of public waters, for the general
  welfare.
  
• Cities can entirely prohibit recreational
  activities at certain public beach areas, if
  reasonable to do so.

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LIMIT ON POLICE POWER

• The public trust doctrine limits local government
  power.

No Beach Access Ever, Anywhere
No Beach Access Certain Times and/or Places
NOT REASONABLE
REASONABLE
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SECOND TOPICLiability for Warnings

• Rip currents are VERY DANGEROUS. They are also
  HIDDEN DANGERS.
  
• Private landowners, local government may want to
  warn guests, public.
  
• Question does failure to warn give rise to
  liability?

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PUBLIC/PRIVATE BOUNDARY

• The mean high water line is the boundary between
  public and private property.

Land above the high water line may be public or
private
property.
Seaward of high water line is public property.
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PRIVATE LANDOWNERS

• General rule the duty to warn does not extend
  to dangerous conditions on adjacent property.
  
• Florida court owner of beachfront property has
  no duty to warn his/her guests of naturally
  occurring surf conditions off a public beach.
  

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PRIVATE LANDOWNERS

• Private beachfront landowners may want to warn of
  hidden dangers in the surf.
  
• Choosing to warn should not create liability.
• Public policy supports warning people about
  dangers.

RIP CURRENTS
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GOVERNMENT DUTY TO WARN

• Question Does the government have a duty to
  warn of rip currents at public beaches?
  

RIP CURRENTS
PUBLIC SWIMMING AREA
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GOVERNMENT DUTY TO WARN

• Answer It depends.
• The government must warn of dangerous conditions
  when it
  
• designates a public swimming area, or
• holds out an area to the public as a swimming
  area.
  
• The holds out test Based on all the
  circumstances.

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GOVERNMENT DUTY TO WARN

• Circumstances might include
• Facilities (showers, restrooms, drinking
  fountains, parking, etc.)
  
• Access (for example, a boardwalk)
• Government-licensed concessionaires (for example,
  umbrella rentals)
  
• Knowledge that public is using the area for
  swimming
  

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GOVERNMENT DUTY TO WARN

• What should local governments do?
• In designated swimming areas, WARN.
• In areas held out as public swimming areas,
  WARN.
  
• In other areas, no duty to warn.

RIP CURRENTS
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QUESTIONS?

• Josh Clemons
• Research Counsel
• MS-AL Sea Grant Legal Program
• [phone]
• jeclemon_at_olemiss.edu