Margaret E. BUTLER, etc., Petitioner, v. SARASOTA COUNTY, Florida, etc., Respondent, 501 So. 2d 579
Opinion
PER CURIAM. We review Sarasota County v. Butler, 476 So.3d 216 (Fla. 2d DCA 1985), because of direct and express conflict with Avallone v. Board of County Commissioners, 493 So.2d 1002 (Fla.1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The district court below held that respondent possessed sovereign immunity in the operation of a swimming facility. It is uncontradicted that respondent owned the beach area in question and that it improved and maintained the area as a swimming facility.
Respondent urges, and the district court below agreed, that this was a “judgmental, planning-level” decision and that respondent had no operational-level duty to operate the facility safely. This position is true in part but overlooks our holding in Avallone that [a] government unit has the discretionary authority to operate or not operate swimming facilities and is immune from suit on that discretionary question. However, once the unit decides to operate the swimming facility, it assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.
We disapprove Sarasota County, Jenkins [v. City of Miami Beach, 389 So.2d 1195 (Fla.3d DCA 1980) ], and Relyea [v. State, 385 So.2d 1378 (Fla. 4th DCA 1980)] to the extent they conflict with the decision here. Id. at 1005. The duty of care is no different for a public owner than a private owner. In this instance, the public owner did not create the specific dangerous condition but did create a designated swimming area where the dangerous condition existed. We find no merit in respondent’s remaining points. We quash the opinion below and remand for reinstatement of the trial court’s judgment. It is so ordered.
ADKINS, OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur. McDONALD, C.J., dissents with an opinion, in which BOYD, J., concurs. The district court below did not have the benefit of Avallone.
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