Knoll v. Paradise Beach Homes Inc.
Knoll v. Paradise Beach Homes Inc.
Opinion of the Court
ROGER VINSON, Senior United States District Judge *1319The plaintiff brought this diversity case against the defendant, alleging several counts of negligence after she was seriously injured while diving off a pier into Santa Rosa Sound at Pensacola Beach, Florida. The defendant has filed a motion for summary judgment (doc. 15) (Def. Mot.); the plaintiff has filed a response in opposition (doc. 19) (Pl. Opp.); and the defendant has filed a reply to that response (doc. 21).
I. Standard of Review
Summary judgment is appropriate if all the pleadings, discovery, affidavits, and other materials on file establish there is no genuine disputed issue of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). The plain language of Rule 56 mandates the entry of summary judgment, after an adequate time for discovery and upon motion, against any party that fails to prove the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See, e.g., Celotex Corp. v. Catrett ,
Summary judgment is inappropriate if a reasonable jury evaluating all the evidence could draw more than one inference from the facts, and if that inference creates a disputed issue of material fact. See Allen v. Board of Public Educ. for Bibb County ,
II. Background
The relevant facts are undisputed and can be stated briefly.
Joanne Williams is the owner of a beach house at 109 Via de Luna, Pensacola Beach. The property fronts the Santa Rosa Sound-which is a protected body of saltwater running parallel to the Gulf of Mexico between Pensacola Bay and Ft. Walton Beach, a distance of about 35 miles-and it has a private wooden pier that extends out from the shore 188 feet. The pier is about 2½ feet above the water. There are steps near the foot of the pier that lead directly into the water from the shore, and there is a "swimming ladder" near the end of the pier, where the water is around 3½ feet deep. The pier doesn't have any guardrails or lights. Santa Rosa Sound is about 2 miles wide at the site of the property, and it has a sand bottom.
Ms. Williams lived in Tallahassee at the time relevant to this case, and the defendant, Paradise Beach Homes, marketed and managed the property for her as a short term vacation rental pursuant to a *1320property management agreement. Under the terms of that agreement, the defendant would, inter alia , set and collect the rent; conduct semi-annual inspections to assess and rate the "furnishings, equipment, decor and appeal;" and, when necessary, hire contractors to perform "routine" repairs that cost no more than $ 200 (unless there was an emergency or Ms. Williams gave prior approval). The defendant listed the beach house for rent on its website, and under a photo of the pier there was a caption that read: "Private pier is great for boats, fishing and swimming." This photo will be attached as Appendix A.
In May 2016, the plaintiff, Terasa Lynn Knoll, and some friends were staying at the beach house for a week. See Deposition of Terasa Lynn Knoll, dated November 14, 2017 (doc. 15-3) (Pl. Dep.), at 39-43, 54-55.
The plaintiff flew into Pensacola from San Francisco at approximately midnight on May 26, 2016, after about twelve hours of traveling. See Pl. Dep. at 45-48. She took a car service to the house, and she got there about 12:45 a.m. See id. at 51-52. After visiting with her friends for a little while (and after she "swigged" a drink of vodka), she and one of her friends, Maria Fierro, got "excited" and decided to go swimming. See id. at 51-52, 54-57, 60. They left the house; took off their clothes; went "running or walking really fast" down to the end of the pier; and entered the water at the same time, side-by-side. See id. at 60, 62-65, 70-71. Fierro jumped in feet first (and was not injured), but the plaintiff chose to dive in head first (and hit her head on the bottom and suffered a severe spinal injury). See id. at 64, 66-69, 78. Tragically, she is now a quadriplegic. See id. at 78.
The plaintiff testified that it was "completely dark" the night of the incident and that she could not see how deep the water was; in fact, it appears that she couldn't even see the water much at all. See Pl. Dep. at 62-68 (it was "like black glass almost"). Thus, when she dived off the pier, she was "just basically diving into blackness." See id. at 65. The plaintiff testified that she thought the water was "the ocean" (and not Santa Rosa Sound), so she just presumed that it was going to be "deep water." See id. at 60-62.
*1321Several years prior to the incident, the homeowner-not the defendant-had painted the words NO DIVING in stencil on the wooden boards at the end of the pier. The plaintiff has described this warning as "weather-worn" [see Pl. Opp. at 5], but she does not dispute that it was still visible. See id. However, the plaintiff testified at deposition that she did not see the warning because she did not look down before she dived off the pier and that, even if she had looked down, she would not have been able to see the words "because it was so dark" that particular night. See Pl. Dep. at 88-90.
The plaintiff reached a significant financial settlement with the homeowner early on, after which she filed this suit against the defendant, alleging negligence, premises liability, and gross negligence. The gravamen of these claims appears to be that the defendant (as the property manager) should have "properly" warned her that the pier was not safe for diving. See Complaint ¶¶ 6, 16, 19, 24, 33-34, 37.
III. Discussion
Under the law of Florida (which applies to this diversity action), a plaintiff alleging negligence must prove the following four elements: (1) the defendant owed her a duty; (2) the defendant breached that duty; (3) the breach caused her to suffer an injury; and (4) she sustained damages. See, e.g., Clay Elec. Co-op. Inc. v. Johnson ,
*1322The plaintiff has not cited any case law holding that property managers have a duty to warn in a situation like the one presented here. All the cases that plaintiff has relied upon (which will be discussed infra , and can be distinguished on their facts) involved property owners. Although the property management agreement at issue provided that the defendant would, inter alia , set and collect the rent, conduct semi-annual inspections to evaluate the "decor," and hire contractors to perform repairs up to $ 200, it does not in any way suggest that defendant assumed an obligation to take it upon itself to install-or have installed-an elevated and illuminated NO DIVING sign on a pier that it neither owned nor built. In fact, although it presents a closer issue, it appears that Florida law would not have even required the property owner to provide such a warning on the facts of this case.
Florida law is well established that:
a property owner generally cannot be held liable for dangerous conditions which exist in natural or artificial bodies of water unless they are so constructed as to constitute a trap or unless there is some unusual danger not generally existent in similar bodies of water.
Tremblay v. South Florida Water Mgmt. Dist. ,
As to this issue, Switzer v. Dye ,
While the plaintiff in Switzer was a trespasser (and not, as here, an invitee), the case has not been limited to that context.
*1324I have reviewed all the cases that the plaintiff has cited in her response in opposition, but they do not compel a different result. In Turlington v. Tampa Electric Co. ,
Where one undertakes to render a service by furnishing accommodations of a public nature, the law imposes a duty to use proper care, precaution, and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be used. If the accommodations for any reason are not reasonably suitable and safe for the purposes for which they may ordinarily and apparently be used in a customary way, the public should be excluded from their use, or appropriate notice of their unsuitable or unsafe condition should be so given as to warn persons of dangers in using them. A failure to perform these duties or any of them may be negligence that, if it proximately results in injury to another ..., will constitute a cause of action for compensatory damages.
*1325The plaintiff next cites First Arlington Investment Corp. v. McGuire ,
It is well settled that a person who invites others on his premises must maintain the premises in a reasonably safe condition and must warn of dangerous conditions existing thereon. This duty extends not only to the ordinary use for which the premises are intended but also to the customary use of the premises by the invitee with the knowledge of the proprietor.
The plaintiff notes that the Second DCA ultimately concluded in First Arlington that " 'it was for the jury's determination as to whether or not the appellants were negligent for their failure to warn the appellee not to use the pier for a purpose (diving) other than the admittedly intended purpose. ' " Pl. Opp. at 8 (quoting First Arlington ,
The plaintiff also cites to Brightwell v. Beem ,
First, the "bathing beach" in that case was part of an amusement park.
Moreover, the evidence in Brightwell (similar to First Arlington ) showed that guests of the amusement park "customarily" used the platform for diving-including throughout the afternoon and night of the accident at issue-and that defendants knew about it. See
Unlike Brightwell , this case involves a private pier behind a private house, not an amusement park. There is no contention *1327that anyone had ever dived head first off the pier before or that defendant knew the plaintiff intended to do so (or that one of its employees watched her prepare for her dive). Nor can there be any argument that the plaintiff-who was not an inexperienced fifteen-year-old girl, but rather a twenty-seven-year-old woman and highly experienced diver-lacked the ability to see a "potential danger" in diving head first off a pier into unfamiliar water that she couldn't even really see. See Pl. Dep. at 63-65 (testifying that it was "completely dark" outside, the water was "like black glass," and she was "basically diving into blackness.").
Lastly, the plaintiff has cited Lienhart v. Caribbean Hospitality Servs., Inc. ,
Unique Sports drives its trucks pulling trailers across a public beach from its facility located adjacent to the hotel. It does so without any demarcation or separation of a driving path and without any warning signs on the beach or back-up devices on the trucks. When Lienhart was struck by the trailer as it was being backed up along the beach, she was asleep on one of the hotel's lounge chairs, where it had been placed by a hotel employee. She had no warning that the vehicles were approaching. Lienhart testified that, although she was generally aware of the movement of the vehicles, she was not aware that they would be driven into that part of the beach where the Aruba Grand placed chairs for its guests' use.
* * *
We conclude that Aruba Grand created a foreseeable, general zone of risk by placing its tiki huts and guest chairs on the beach close to where Unique Sports *1328drove its trucks and trailers. The hotel thus owed Lienhart a duty of reasonable care which it breached by exercising control over this area of the beach but failing to use any measures to separate vehicular traffic from it. The district court erred in holding that the Aruba Grand did not create a zone of danger.
Id. at 1341 (emphasis added).
Asserting that Lienhart is "instructive for the instant matter," the plaintiff maintains that the defendant similarly created a "zone of risk" or "zone of danger" by not warning her against diving from the pier. See Pl. Opp. at 10-13. But this lawsuit is nothing like Lienhart. As noted, the defendant in Lienhart owned the resort and installed the lounge chairs under tiki huts on the beach close to the ocean. One of its employees directed plaintiff to sit in one of those chairs where she fell asleep, but he did not tell her that a truck-which one would not usually or reasonably expect to be in such an area-would be driving right by her and might strike her while she slept. The underlying point of law from Lienhart (as the plaintiff herself notes, see id. ) is that property owners owe "clear-cut duties" to invitees in Florida, including "the duty to give the invitee warning of concealed perils which are or should be known to the landowner and which are unknown and undiscoverable by the invitee through the exercise of due care. "
In sum, in each of the cases that the plaintiff has cited and relied on, the defendants (all of whom were property owners) either affirmatively did something that led to the injury at issue or they failed to act based on prior knowledge. They were a public bathhouse that provided patrons with a diving board ( Turlington ); they were a hotel that provided a pier over shallow water and knew that guests were diving off the pier and did nothing to stop it-despite knowing that another person had previously broken their neck diving from the same pier ( First Arlington ); they were a bathing beach (part of an amusement park) and not only knew that patrons were diving head first off the pier and into shallow water but they actually watched the fifteen-year-old plaintiff prepare her dive and made no attempt to stop her ( Brightwell ); and they were a beachfront resort that directed plaintiff to sit in a specific beach chair near the ocean without warning her that trucks would be driving by ( Lienhart ). None of these cases are comparable to the facts here, where there was no history of anyone ever diving head first off the pier, and the defendant (an off-site property manager) neither owned nor built the pier and was contractually limited in what it was required and allowed to do *1329with respect to the property.
As there is no genuine disputed issue of material fact on this record, the defendant is entitled to summary judgment.
IV. Conclusion
I recognize that the plaintiff suffered a life-altering injury and has sustained a serious loss. And I am sympathetic to her situation. However, as was said more than 120 years ago:
" ... [H]ard cases, it has been often said, almost always make bad law; and hence it is, in the end, far better that the established rules of law should be strictly applied even though in particular instances serious loss may be thereby inflicted on some individuals, than that by subtle distinctions invented and resorted to solely to escape such consequences, long settled and firmly-fixed doctrines should be shaken, questioned, confused or doubted. It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured."
Saga Bay Prop. Owners Ass'n v. Askew ,
The defendant's motion for summary judgment (doc. 15) is GRANTED. This ruling necessarily moots the third party complaint against Ms. Williams, and the clerk is directed to enter judgment for the defendant, along with taxable costs, and close this case.
DONE and ORDERED this 29th day of August, 2018.
Appendix A *1330--------
The plaintiff's friends had rented the house, and they invited her to stay there for free (where she was planning to sleep on "a floor ... a couch or something"). See Pl. Dep. at 39-43. She had not seen and was not party to the rental agreement. See id. at 43-44.
In addition to traditional diving, the plaintiff was also a licensed/certified scuba diver, and she had been scuba diving in Ecuador and South Carolina as well. See Pl. Dep. at 19-20.
Although the plaintiff had dived into the myriad bodies of water indicated above "hundreds of times," she testified that prior to this incident she had never dived into any water-not even the presumptively "deep water" of the Pacific and Atlantic Oceans-until she could determine the depth of where she was diving. See Pl. Dep. at 20-23.
The plaintiff also alleged in her complaint that the defendant should have "fixed" or "cured" the dangerous condition [see Complaint ¶ 18], and in her opposition to summary judgment she notes in passing that there were "no railings around the pier." See Pl. Opp. at 6. Although it is not clear, to the extent she may be suggesting that defendant should have installed guardrails, she has not cited any authority holding that a non-owner property manager is allowed-let alone required-to do such a thing. In fact, as earlier noted, the property management agreement specifically limited repair and maintenance expenditures to $ 200 (absent an emergency or prior approval), and installing guardrails around a 188-foot pier would have obviously exceeded that amount.
The third party complaint is based on a hold harmless provision in the property management agreement which, according to the defendant, provides that it will be entitled to indemnity from the homeowner if it is found liable to the plaintiff. See Third Party Complaint ¶ 7. If the defendant is not liable to the plaintiff, it would appear the third party complaint is moot. See id.
It is not entirely clear what the plaintiff believes the defendant should have done with respect to the warning. Because she didn't look down before diving off the pier, I assume that she is arguing the warning sign should have been raised. Because it was too dark for her to see anything, however, I further assume that she is arguing the sign/pier should have been illuminated. Indeed, unless both things were done, it appears that she wouldn't have seen any warning on the pier that night. This is consistent with the testimony of plaintiff's expert witness, Dr. William Rowley, who opined that the defendant should have put up a warning sign with "enough lighting to see the sign." See Deposition of William Rowley, dated November 7, 2017 (doc. 15-2) (Rowley Dep.), at 79; see also id. at 68-69, 71, 73-74 (the warning sign should have been "apparent," "readable," and "visible" in the dark).
In fact, the Switzer opinion itself states that " '[w]hether the [plaintiff] was a trespasser upon the premises in question is not material.' "
The plaintiff in Savignac was paralyzed after he dived off a bridge and into a shallow canal. The Second DCA stated in that case-as quoted in Hughes above-that a property owner generally cannot be held liable in that situation unless there is an unusual danger or trap, and "[s]hallow water, insufficient for diving, does not constitute a trap."
Hughes and Savignac are not the only cases that have cited Switzer with approval. In Clark v. Lumbermans Mut. Ins. Co. ,
Although not binding, Dowen v. Hall ,
Dowen , in turn, was later cited with approval in Bucki v. Hawkins ,
Together, these cases support the conclusion that the property owner had no duty to warn the plaintiff on the facts presented here, which necessarily means the property manager had no duty. See Scott v. Future Invs. of Miami Inc. ,
The plaintiff notes that the pier had a swimming ladder and that the defendant marketed the property online as having a private pier that was "great for boats, fishing and swimming. " As for the property listing on the internet, the plaintiff testified at her deposition that she never saw it and knew nothing about it. See Pl. Dep. at 43-45. As for the swimming ladder, the plaintiff saw it for the first time-and presumably for an instant-as she and Fierro were practically running down the pier. See id. at 45, 63. However, even if the plaintiff reasonably assumed that the pier was good for swimming (either from how the property was advertised or after seeing the swimming ladder for the brief time they were on the pier), swimming and diving are not the same thing. The plaintiff tries to equate the two, but they are clearly different (albeit related) activities. To illustrate, above-ground swimming pools are obviously designed for swimming, but they are not meant for diving. See Sheehan v. North American Marketing Corp. ,
As earlier noted, the plaintiff testified that prior to this incident she had dived "hundreds of times" into natural bodies of water all around the world, but she had never once dived into any water of indeterminate depth-presumably because she knew it was dangerous. See Pl. Dep. at 19-23. Yet she dived in head first this time, even though her unfamiliarity with the water and the near total lack of visibility made it particularly risky. That begs the question: why would she do that? The plaintiff testified that she thought she was diving into the "ocean," which she just assumed was "deep water." See id. at 60-62. However, while ocean water eventually gets deep, it of course does not start out that way; rather, there is a gradual deepening the further you get from shore. The plaintiff obviously knew that as she had experience diving in both the Pacific and Atlantic, and she had never dived into those ocean waters until she could ascertain the depth of where she was diving. While one can only speculate as to why she chose to do something this time that she had never done before and that she had to know was dangerous, it is reasonable to assume (although it is not necessary to my decision) that the late hour, the long day of coast-to-coast travel, and/or her "swigging" vodka shortly before might have played a role in her decision.
The parties have spent a considerable amount of time in their briefs arguing about whether the defendant has violated Section 64E-9.013, Florida Administrative Code, but I can dispose of that issue quickly. Section 64E-9.013 provides that:
Platforms, diving boards, docks, beaches and walkways shall be kept clean and in good repair. Diving areas shall be readily identified , and shall have and maintain adequate water depth for safe diving based on the depth requirements of public swimming pool construction requirements.
Id. at § 64E-9.013(2)(b)(7) (emphasis added). Assuming this regulation reaches non-owner property managers, as the title of Chapter 64E-9 itself makes clear, it applies to "Public Swimming Pools and Bathing Places." Contrary to plaintiff's novel-but ultimately unpersuasive-argument, water below a private pier behind a private home (even one that is available for rent) is not a "public swimming pool or bathing place." Notably, the plaintiff has not cited any case law to support her argument on this point, and even her own expert witness has expressed doubt about it. See Rowley Dep. at 63-64 (conceding "[I am] not sure if this regulation would apply or not"). And even if it somehow applied, the plain language of the regulation requires that "[d]iving areas shall be readily identified." On its face, it does not say that non -diving areas must be "readily identified" as well.
This also moots the motion for summary judgment that Ms. Williams has recently filed (doc. 23).
Reference
- Full Case Name
- Terasa Lynn KNOLL v. PARADISE BEACH HOMES INC. Defendant/Third Party v. Joanne O. Williams Third Party
- Status
- Published