Falmouth

[Genesis]

Funny how that works, and how it seems to come back to the same thing.

People claim that landowners say "liability concerns" prevent them from permitting diving.

Who keeps telling landowners - falsely - that there is a liability issue?

You caught that one Mike for the water management districts. Here's the general version - "The Sportsman Act" - which applies to every landowner, near as I can tell.....

375.251 Limitation on liability of persons making available to public certain areas for recreational purposes without charge.--

(1) The purpose of this act is to encourage persons to make available to the public land, water areas and park areas for outdoor recreational purposes by limiting their liability to persons going thereon and to third persons who may be damaged by the acts or omissions of persons going thereon.

(2)(a) An owner or lessee who provides the public with a park area or other land for outdoor recreational purposes owes no duty of care to keep that park area or land safe for entry or use by others, or to give warning to persons entering or going on that park area or land of any hazardous conditions, structures, or activities thereon. An owner or lessee who provides the public with a park area or other land for outdoor recreational purposes shall not by providing that park area or land:

1. Be presumed to extend any assurance that such park area or land is safe for any purpose,

2. Incur any duty of care toward a person who goes on that park area or land, or

3. Become liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on that park area or land.

(b) This section shall not apply if there is any charge made or usually made for entering or using such park area or land, or any part thereof, or if any commercial or other activity, whereby profit is derived from the patronage of the general public, is conducted on such park area or land, or any part thereof.

(3)(a) An owner of land or water area leased to the state for outdoor recreational purposes owes no duty of care to keep that land or water area safe for entry or use by others, or to give warning to persons entering or going on that land or water of any hazardous conditions, structures, or activities thereon. An owner who leases land or water area to the state for outdoor recreational purposes shall not by giving such lease:

1. Be presumed to extend any assurance that such land or water area is safe for any purpose,

2. Incur any duty of care toward a person who goes on the leased land or water area, or

3. Become liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on the leased land or water area.

(b) The foregoing applies whether the person going on the leased land or water area is an invitee, licensee, trespasser, or otherwise.

(4) This act does not relieve any person of liability which would otherwise exist for deliberate, willful or malicious injury to persons or property. The provisions hereof shall not be deemed to create or increase the liability of any person.

(5) The term "outdoor recreational purposes" as used in this act shall include, but not necessarily be limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, motorcycling, and visiting historical, archaeological, scenic, or scientific sites.

History.--ss. 1, 2, 3, 4, 5, ch. 63-313; s. 1, ch. 75-17; s. 7, ch. 87-328.

Copyright © 1995-2005 The Florida Legislature • Privacy Statement • Contact Us


So how come we keep having these problems?

From the text above its clear that unless you charge money for access - that is, you're a commercial operation - your liability to someone (or their estate, should they cack themselves) who dives a sink on your land is zero.

As such anyone who makes such a claim is, in fact, lying.

I think it is not only fair but is necessary that we, as divers, start asking exactly WHO is going to landowners and telling them that they have a liability issue if we dive there and get ourselves killed, thereby causing various organizations - such as county commissions, water management districts, various other organs of the state and private landowners to either restrict or ban access outright.

Indeed, for those who claim to be "pillars of the community", is not one of your obligations to tell the truth to these organizations and individuals - to present them with the appropriate cites from State Law - and to encourage them to allow open diving access to all?

I think asking exactly who has been "putting the bug in these people's ear" is very fair indeed. Perhaps a new round of FOIA's needs to be filed - with one of them going to SRWMD......

Maybe I'll have to do that as soon as I get back from T-day vacation, and since I suspect the documents returned won't be anywhere near as volumnous as they were for Wakulla, I'll just put 'em all online....

[Miner]

Preserving the caves we love to dive as well as the areas that surround them should be of the upmost importance in the coming years for all cave divers and cave diving organizations. With 1000 people per day moving to Florida and development expanding as rapidly as it is, preservation will become more and more difficult. We need to continue to act and push for cave preservation and show the communities how important the ground water and cave systems are for their future.

David Miner
www.divingindepth.com

[phreaticus]

This process has worked at Eagle's Nest and Buford Sinks, controlled by SWFWMD, why doesn't SRWMD do the same up there?

[Genesis]

Are there people arguing that it shouldn't, perhaps?

[resolute]

Preserving the caves we love to dive as well as the areas that surround them should be of the upmost importance in the coming years for all cave divers and cave diving organizations. With 1000 people per day moving to Florida and development expanding as rapidly as it is, preservation will become more and more difficult. We need to continue to act and push for cave preservation and show the communities how important the ground water and cave systems are for their future.

David Miner
www.divingindepth.com

That's all well and good and I agree AS LONG AS it does not restrict, inhibit or interfere with the rights of others (including cavedivers) to access or use the resources in a non-destructive manner for either recreation or continued scientific research. What I am tired of is listening to the forces that want to seal off everything to everyone qualified to be there (oh, except for me and MY little "group"... because we're doing "important research" - yeah, right...)...

(all in the context of PUBLIC lands of course, a landowner should be able to do whatever they want to with private land, within the law - and not adversely affecting others.)
JB

[Walter Pickel]

This process has worked at Eagle's Nest and Buford Sinks, controlled by SWFWMD, why doesn't SRWMD do the same up there?

That are is not controlled by SWFWMD. It is a state property now.

[Genesis]

This process has worked at Eagle's Nest and Buford Sinks, controlled by SWFWMD, why doesn't SRWMD do the same up there?

That are is not controlled by SWFWMD. It is a state property now.

Then they have even stronger protection in the form of the Sportsman Act (the WMD version exempts "gross negligence" - the general version does not.)

There is no liability issue.

[curtschu]

Can anyone with access to the Florida Second see if there is any reference to a successfull or not defence by the use of FS 375.251?
The internet just does not have all the answers!!!????

[rchrds]

Genesis- I'm not sure I catch the drift of your upset- the way I read the stuff Poucher posted, it does not imply that diving should not be allowed. The way I read it only supports the sportsmans act, by saying the park does not incur added liability by opening the site to recreational use (unless of course, a fee is charged.)
I havent seen the sign either, (what does it say?) but that is indeed unfortunate. But it is also the way of anything without water access in Florida. They're all going that way unfortunately. We dont represent enough money or political clout to do anything else. For f's sake, we have three or more organizations representing the same sport. No wonder nobody takes us seriously- we sure cant.

[Genesis]

Genesis- I'm not sure I catch the drift of your upset- the way I read the stuff Poucher posted, it does not imply that diving should not be allowed. The way I read it only supports the sportsmans act, by saying the park does not incur added liability by opening the site to recreational use (unless of course, a fee is charged.)

Actually, it IS the Sportsman act, with one little kicker - it specifically exempts gross negligence (which is NOT exempted in the Sportman Act - indeed, that language specifically states that you have no duty to inform or protect even from hazards you know exist! So not telling people there might be an alligator in there when you know there is could get the WMD in trouble, where for a private landowner (or state agency other than a WMD) it could not.

As such its pretty much an iron-clad preventer of liability suits. Oh it won't stop you from getting sued (I can sue you because I think you're ugly!) but I bet it keeps someone who sues from getting beyond a motion for summary dismissal. (With that said, IANAL, but the langauge is pretty clear)

As to the question asked about it being used as a defense, can anyone find me a case where, post the enactment of this law, a suit has been successful against a landowner who cited this statute - and lost anyway?

What good, solid laws tend to do is prevent lawsuits, not win them. Its poorly-written garbage that gets argued over in court; there's no point in bringing a lawsuit you know you're going to lose.

I havent seen the sign either, (what does it say?) but that is indeed unfortunate. But it is also the way of anything without water access in Florida. They're all going that way unfortunately. We dont represent enough money or political clout to do anything else. For f's sake, we have three or more organizations representing the same sport. No wonder nobody takes us seriously- we sure cant.

Actually, if we as divers (not just cave divers) would solidify behind a position of freedom and individual liberty (which reaches ALL diving in the state) we are quite an economic force indeed. Consider how many diving operations exist in Florida - not just cave diving related stuff, but diving related ones.

I'm working on something that might make a difference - maybe. It also may not - but I have to try.

More when I've got it together - I'm off for the T-day holiday to go play at the House of Mouse with my kid. Anyone who happens to be around Orlando this weekend drop me a note; I'd be happy to meet for a beer or dinner... unfortunately I won't have dive gear with me as I promised Sarah this was her (long) weekend.