The Florida Body Of Water Rule

Bob Carroll

Contributor

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If a young child drowns in a lake, is the owner of the body of water liable? The owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers.

The body of water cases in the State of Florida are summarized by the recent opinion in GARY KENLEY v. INWOOD PROPERTY INVESTMENTS, INC., 4th District, 31 Fla. L. Weekly D1739a.

By summary judgment, the trial court determined that defendant could not legally be held liable in money damages for a child who fell from a dock on a seawall into an open body of water covering sharp rocks. Among other things, plaintiff alleged that the property owner was negligent in failing to erect safety barriers and warnings. In affirming, we reject the father's contention that the "open and obvious" doctrine as applied to bodies of water is not applicable when the victim is a young child.

The outcome in this case is yet another result of the rule applied in the line of cases represented by Saga Bay Property Owners Ass'n v. Askew, 513 So.2d 691 (Fla. 3d DCA 1987). There the parents of a six year old child who drowned in an artificial lake near their home brought an action against the owners of the residential development in which the lake was located, alleging that the owners were negligent in failing to fence the area. The Third District held that the owners could not be held liable because "an owner of a natural or artificial body of water has no duty to fence it." 513 So.2d at 693. The court reasoned:

"The fundamental proposition that drowning is a risk inherent in any body of water leads to some equally fundamental legal principles. The owner of a body of water is not liable merely because a child may be too young or of insufficient intelligence to understand the open and obvious danger of the water; the responsibility for the care of such children remains with their parents and caretakers. To shift the responsibility to the lake owner -- by virtue of ownership alone -- is to unreasonably require the owner to fill the lake or fence it in order to guard against being held liable." [e.s.]

We see no way around these "body of water" cases. Florida is planted thick with masses of water, large and small, many touching towns, cities and residential developments from the very western tip of the Panhandle to the outermost island in the Keys. What the law might require for one lake or canal or river or pond must inevitably apply to all of them. The body of water rule has been around for more than a half-century. Any change or abandonment of the rule would have far-reaching effects in this state. Even though one might advocate a rule protecting young children who fall or walk into such bodies, it is up to the Legislature to make such a change.