Mississippi-Alabama Sea Grant
|• Home||• About Us||• Site Map||• Contact|
Currents and Landowner Liability
Rip currents are
dangerous surf phenomena described by the National Weather Service as
powerful, channeled currents of water flowing away from shore
[that] typically extend from the shoreline, through the surf zone, and
past the line of breaking waves. Rip currents can occur at any beach
with breaking waves, including the Great Lakes and are estimated
to result in over one hundred drownings per year on U.S. beaches.2 The National Weather Service and Sea Grant have teamed with the U.S.
Lifesaving Association to raise awareness of the dangers of rip currents
in order to reduce rip current fatalities and Break the Grip of
One good way to increase public awareness of rip currents is by distributing information and posting warning signs at beach areas. However, many beachfront landowners are hesitant to do so because they believe that it might increase their liability if someone drowns. This article will provide a very broad overview of the law of landowner liability, and perhaps will encourage people to warn their guests and customers about the dangers of rip currents. Only general principles are given; please bear in mind that the law varies somewhat from state to state, and that for formal legal advice you should seek the counsel of an attorney who is licensed to practice in your state.
Tort of Negligence
The big question in landowner liability cases is usually duty of care. Did the landowner have a duty to the plaintiff, and if so, what was it? If there was no duty of care, then a negligence suit will be unsuccessful.
Landowners Duty of Care
n most states, a
beachfront landowners property ends at the high tide line. Seaward
of the high tide line is state or federal property (usually state).
Rip currents, by necessity, occur on the public property seaward of
the high tide line. Thus, by the general rule, adjacent upland landowners
do not have a duty to warn people about them. Several court decisions
have affirmed this general rule.
In Swann v. Olivier,4 a guest at a private beach
party near San Clemente, California sued the host for injuries he sustained
from hazards in the surf, including a rip current. The plaintiff asserted
that the defendant landowner had a duty to warn him of those hazards.
Relying on the principle that a landowner is generally not liable for
injuries on property outside his ownership, possession, or control,
the Court of Appeal for California held that the private beachfront
landowner had no duty to warn the plaintiff. The court left open the
possibility that private landowners might be found liable for injuries
off their property if (1) they imposed or created some palpable
external effect on the area where the plaintiff was injured, or (2)
they received a special commercial benefit from the area of the injury
plus had direct or de facto control of that area.5
The following year
the California appeals court faced an almost identical case in which
the private landowner was a hotel company, which clearly received
a special commercial benefit from the area. Princess Hotels
Intl v. Superior Court 6 concerned a couple
who went for a late-night swim in the ocean in front of their hotel.
They were caught in a rip current; the man drowned, and the woman was
injured. She and the mans estate sued the hotel for failing to
warn adequately of the danger (the hotel had posted swim at your
own risk signs, but the woman denied seeing them). The court followed
Swann and ruled that the hotel owed no duty to warn, even though it
received commercial benefit from the area, because it had no control
over the ocean.
The highest state
court in New York has ruled similarly in a case in which the estate
of a hotel guest who drowned in a rip current sued the hotel for negligence.7
The hotel was separated from the beach by a highway, but the hotel encouraged
use of the beach by its guests and provided them with chairs, towels,
umbrellas, and even a security escort service. The hotel also distributed
pamphlets warning of various dangers including sunburn and crime on
the beach. The plaintiff charged that the hotel knew or should have
known of the rip current danger, and breached its duty to warn its guests.
The court disagreed, holding that the hotel had no duty to warn because
the rip currents occurred in an area over which it exercised no management,
supervision, or oversight, even though it encouraged beach use. The
court also held that the hotel had no duty to investigate and discover
dangerous conditions of the bathing area.
Closer to home (but
not in the Gulf), a Florida court, ruling in a case brought against
a hotel by the estates of the victims of a double drowning in a rip
current off Miami Beach, held that an entity which does not control
the area or undertake a particular responsibility to do so has no common
law duty to warn, correct, or safeguard others from naturally occurring,
even if hidden, dangers common to the waters in which they are found.8
The court noted that a duty of care might arise if the hotel or other
business rented some kind of water craft for use in the surf where rip
One judge in the
Florida case wrote a brief dissent, in which he raised the possibility
that the common law duty of innkeepers to protect their guests against
unreasonable risks of physical harm might be implicated.9
While this duty is commonly recognized, it is not typically considered
to apply when guests are away from the premises.10 In
such situations the analysis usually focuses on land ownership and the
general rule against liability for injuries on anothers land is
An unusual case
from California, Pacheco v. U.S.,11 merits
attention because it turned out differently than the ones described
above. An eleven-year-old Kansas girl was caught in a rip current on
a beach near Big Sur; her mother and grandmother jumped in to rescue
her and all three were drowned. The girls father sued the U.S.
(the area was part of Los Padres National Forest) and the private company
that operated the campground at which the family was staying, asserting
that they breached their duty to warn.
The case would seem
to be controlled by Swann, but a 2-1 majority of the court held that,
if the particular facts of the case as alleged by the plaintiffs were
true, the defendants may have breached a duty to warn. The court based
this outcome on two principles: creation and control. First, the court
reasoned that the defendants created the hazard by encouraging children
to play in the water, which it did by handing out perforated toy buckets
and failing to warn of the dangers to children of playing in the surf.
Second, the defendants were said to have created an open public
display of their control of the area by maintaining paths, posting
signs, and promulgating and enforcing rules governing usage of the beach.12
These elements of creation of the danger and control of the beach were
sufficient to create a duty to warn of the rip current danger. This
duty, the court observed, could have been satisfied by posting signs
or distributing information.
The Pacheco case
should probably be considered an anomaly because of its peculiar reasoning.
The Swann case exhibits the conventional reasoning with respect to creating
an off-premises hazard. There, the hazard was the rip current
itself, which, of course, the defendant did not create. In Pacheco the
court implies that the hazard is the appearance that playing
in the surf is safe, which the defendant supposedly did create.
The court similarly
tinkered with the control analysis. In Swann, the court
found it highly doubtful that anyone could control the sledge
hammering seas and inscrutable tides of God.13 That is, the thing not controlled was the rip current itself.
In Pacheco, the thing controlled was the entire beachfront
area. The Pacheco dissenter pointed out that the courts analysis
was contrary to the controlling precedent of Swann. Had the Pacheco
analysis been employed in Swann, the result of that case would have
been completely different. It is probably safe to say that the weight
of authority is on the side of Swann, and that a beachfront landowner
generally has no duty to warn of rip currents. The possibility of a
contrary holding should be kept in mind, however.
Despite its unusual result, Pacheco provides an important take-home message: posting or distributing warnings should satisfy the duty to warn, if one exists. From a liability standpoint, the safest course for a beachfront landowner may be to warn guests of the dangers of rip currents. That way the landowner is likely to be covered whether or not a court finds there was a duty to warn. Better yet, good warnings may prevent rip current accidents from happening at all.14
Many states have
consented to waive their sovereign immunity to suit for torts like negligence
in certain situations. A state usually waives its immunity in a statute
called a Tort Claims Act.15 A Tort Claims Act typically
allows citizens to sue the state for torts committed by its agencies
and employees acting in the course of their employment. Negligently
failing to warn of a rip current could, in theory, be the basis for
such a suit.
Posting or Distributing Rip Current Warnings Increase My Liability?
FOR MORE INFORMATION: http://www.ripcurrents.noaa.gov
Phone (662) 915-7775 • Fax (662) 915-5267 • 256 Kinard Hall, Wing E, University, MS 38677-1848