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When Eugenie Poleyeff ventured into the ocean off Miami Beach in February 1997, she had no idea of the dangers awaiting her. Without warning, the 66-year-old New York tourist was caught in a rip current and swept out to sea. Another tourist, Zachary Breaux, who was playing with his children on the beach, heard her screams for help and sprang to her rescue. He, too, was caught in the rip current. Both drowned. On Tuesday, the 3rd District Court of Appeal in Miami, sitting en banc, was asked whether the hotels where the two tourists and their families stayed had a “duty to warn” guests of the dangers associated with riptides, or whether existing law, which does not require a duty to warn, should stand. The 3rd District hears cases not only from Miami-Dade but from Monroe County, which includes the Florida Keys. People who work in the Florida tourism industry are worried that if the hotels are held responsible in some way for the drowning deaths, the implications will be felt not only in Miami Beach, but down to Key West. And lawyers in other jurisdictions might see the ruling as an invitation to go after hotels in other parts of Florida. Meanwhile, some say a duty to warn should come from the state Legislature, not the courts. The appellate court’s decision to hear the case follows a Miami-Dade circuit judge’s July 1999 dismissal of a lawsuit filed on behalf of Poleyeff and Breaux against the Saxony and Seville hotels, the city of Miami Beach, and Hurricane Beach Rentals, a company that rented a beach chair and umbrella to Poleyeff on the day she drowned. At trial, attorneys for the drowning victims argued that the hotels where the two were guests and the rental company were negligent for failing to warn guests of the dangers of rip currents, provide them with life-saving equipment or tell them where the lifeguard stations were located so that they might choose to swim closer to them. The closest station was about six blocks away. Poleyeff, the wife of a New York rabbi, had been staying at the Saxony on the 3200 block of Collins Avenue. She and her husband walked about three blocks to the Seville where she could rent a beach chair and umbrella. She then went for a swim in the ocean. Caught in the riptide, Poleyeff began to cry for help. Breaux, a 36-year-old jazz guitarist from New York who was a guest at the Seville, went to her rescue. Ironically, he had rescued someone once before while in Italy, said the family’s attorney, Howard Pomerantz of Abramowitz & Pomerantz in Sunrise, Fla. However, the attorneys for the families never got to tell their stories to a jury. Judge David Tobin dismissed their suit for failure to state a cause of action. Tobin cited a previous 3rd District ruling, Adika v. Beekman Towers Inc., which holds that no cause of action can be stated for a drowning that occurs in the ocean due to naturally occurring conditions in similar bodies of water. “Under the law there is no such duty to warn and there are a number of cases that specifically hold there is no duty unless you have created a unique circumstance that makes it dangerous,” said Richard E. Berman of Berman & Kean in Fort Lauderdale, Fla. He represents the Saxony Hotel. Attorneys for the drowning victims plan to argue that Adika “is simply wrong,” and “contrary to controlling Supreme Court authority,” according to a brief submitted by Joel Eaton, of Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, who represents the Poleyeffs in their appeal. Eaton declined to comment, referring instead to his written arguments. In Adika, a wrongful-death action was brought against the hotel by the family of a man who drowned in the ocean behind Beekman Towers in Surfside. The victim also appeared to have been swept up in a riptide and carried out to sea. In that case, the 3rd District affirmed a lower court’s dismissal of the case on grounds that the hotel’s duty to exercise reasonable care for its guests did not extend to the public beach. But attorneys in the Poleyeff case contend that the hotels entice guests to use the ocean and link their businesses to it. As a result, they argue, they have a duty to warn. “These hotels that are profiting, and Hurricane Beach Rentals, which is profiting, owed a duty to the people they are profiting from because they are in a superior position of knowledge to identify rip currents and to know that this area of the beach doesn’t have life guards,” said Pomerantz. “A simple warning sign stating that this is an unguarded beach may have prevented these deaths.” But, wrote Berman in his brief, the drowning didn’t even happen anywhere close to the Saxony and as such “can not reasonably be considered ‘adjacent’ to this hotel.” “If one were to adopt appellants’ position, then every hotel owner in the state would be responsible for any drowning death that occurs in the ocean on a day when there were conditions that were not appropriate for swimming,” wrote Berman. It’s his contention that if there were to be a change in the law, it should come from the Legislature. And, Berman noted, “the Florida Legislature has chosen not to expand the common law duty to warn of dangerous, naturally occurring conditions in exercising the duty of reasonable care.” Imposing such a requirement would be the “equivalent of imposing liability on any beachfront hotel simply because an invitee dies of drowning — through no fault of the hotel,” argues Elliot H. Scherker of Greenberg Traurig, the appellate lawyer for the Seville. Nicki E. Grossman, president of the Greater Fort Lauderdale Convention & Visitors Bureau, also worries about the consequences of overturning existing law. “I think that’s one of the laws that allows the hospitality industry to stay in business,” Grossman said. “The kind of insurance requirements you would have to have to operate a hotel or motel [if the law was scrapped] would put them out of business. “When you are at the ocean standing there with this massive mind-of-its-own kind of attraction like the Atlantic Ocean in front of you, you are under notice that you are responsible for your own protection,” Grossman said.

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