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THE BODY OF WATER DOCTRINE
By
Eric Glazer, Esq.
Published October 7, 2024
We too
often here about a child drowning in a body of water. So
many of our beautiful communities are built next to a
natural lake or contain man-made lakes. It begs the
question…..Can a developer face liability if a child drowns
in a river or other body of water? That question was
answered in Feliciano v. Rivertree Landings Apartments, LLC,
387 So.3d 422 (Fla.App. 2 Dist., 2024) where a Personal
representative for a child who drowned in a river that
abuted an apartment complex in which she was a resident
brought a wrongful death action against the complex owner
and management company for the complex, alleging negligence.
The Circuit Court, 13th Judicial Circuit, Hillsborough
County, Paul L. Huey, J., 2023 WL 2874410, granted owner's
motion for summary judgment and the Representative appealed.
On Appeal, the court said:
1.
the body-of-water rule
provides that owners of bodies of water are not guilty of
actionable negligence on account of drownings therein unless
the bodies of water are constructed so as to constitute a
trap or unless there is some unusual element of danger
lurking about them not existent generally in similar bodies
of water; this is true even where the drowning victim is
tragically a child.
2.
absent unusual, dangerous
conditions, the owner of natural or artificial body of water
has no duty to fence it and has no duty to post guards or
signs in areas not designated for swimming;
3. Drowning is a risk
inherent in any body of water but the owner of a body of
water is not liable based solely on a plaintiff's failure or
inherent inability to heed the open and obvious danger of
the water.
It’s
tough to argue with the court’s logic. Some bodies of water
are extremely large. Can you imagine if every owner of
every lake was required to put fencing around it? It would
be a pretty huge task for many. It would also depreciate
the appearance of a natural body of water that the owner
paid for and wants to keep. It would also make the cost of
our communities more expensive.
This is
obviously a terrible case. Does anyone disagree with the
result reached by the appeals court?
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About
HOA & Condo Blog
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Eric Glazer graduated
from the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric
has been the host of Condo Craze and HOAs, a weekly one-hour
show airing at 7 p.m. each Thursday on YouTube. This show allows
viewers to engage in live chats with Eric and other participants
but also enables a broader audience to access free advice,
making valuable insights more widely available.
See:
www.condocrazeandhoas.com
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 Floridians all across the
state. He is certified as a Circuit Court Mediator by The
Florida Supreme Court and has mediated dozens of disputes
between associations and unit owners. Eric also devotes
significant time to advancing legislation in the best interest
of Florida community association members.
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