Stuart Grossman, left, and William Mulligan, right. (Courtesy photos)
Florida waterfront establishments must do a better job of protecting their customers and guests from water hazards. As a destination for sunshine and beaches, Florida attracts tourists from in-state and around the country and world who travel far and wide to spend time in our waters. In fact, there are numerous establishments, such as bars, restaurants, hotels and timeshares, that heavily advertise their “water attraction” to entice customers. Yet many of these businesses do not adequately protect their visitors who may be unfamiliar with the dangers in our waters that us natives are aware of.
There is no shortage of dangers within our waters in Florida. This list includes but is not limited to rip currents, differing water depths, deceptively clear waters, murky waters, tidal zones and alligators in lakes and lagoons. These hazards present real threats to individuals who are either unaware or have never been exposed to them, which can result in death and catastrophic injury.
For example, within the last year, there was the incident at a Disney World hotel where a 2-year-old Nebraska boy was killed by an alligator when he was playing in a foot of water in the resort lagoon. There was a “No Swimming” sign present, but nothing to warn of alligators or hinder this young boy from entering the water.
Also, twice in just a few years, we represented two out-of-state residents who were rendered quadriplegic when they dove into designated or expected swimming areas that were too shallow for safe diving. The swimming areas either had no signs warning of the shallow water or ineffective barriers to prevent entry into the water. These are just two of the many cases that have dealt with death or catastrophic injury due to a lack of appropriate safety measures in place around a body of water in Florida.
There is a crying need for local ordinances that mandate Florida resorts and businesses to warn of the dangers associated with their “inviting” waters. This is because many businesses and landowners do not understand that they have a duty of care to their guests and the public as well to inform them of shallow water and other hazards of which the business is or should be aware.
That duty is captured in the Florida standard jury instruction for premises liability of a landowner or possessor towards invitees and invited licensees, which states: “Whether the defendant negligently failed to maintain the premises in a reasonably safe condition, or negligently failed to correct a dangerous condition about which defendant either knew or should have known, by the use of reasonable care, or negligently failed to warn the plaintiff of a dangerous condition about which the defendant had, or should have had, knowledge greater than that of the plaintiff; and, if so, whether such negligence was a legal cause of loss, injury or damage to the plaintiff.”
Resort and business owners have three options as a means to protect their guests and the public against a water hazard: Remove the hazard, guard against the hazard and/or warn of the hazard. Because removing the hazard is not always feasible, businesses and resorts should be focusing on guarding against or warning of the hazard.
These necessary local ordinances should build off the minimal standards already established by the Florida Building Code, Florida Department of Health and the American National Standard Institute. The ordinances must mandate clear warning signage as to the design, size and content, and effective barriers where appropriate for all designated or potential swimming areas on resort and business property. There should be no ambiguity in these ordinances.
Tourism is and will be Florida’s chief economic engine. Protecting tourists as well as its citizens must be a top priority for the state. The dangers in our waters are real, and the consequences of not warning or guarding against them are dire. The irony of this recommendation is that warning signs and other remedial measures are so relatively inexpensive compared to insurance premiums, settlements and jury verdicts.
Businesses and resorts should welcome these mandatory requirements.