The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 18-10305
Non-Argument Calendar
D.C. Docket No. 1:17-cv-21422-DPG
ODALVIS FERNANDEZ,
JULIO RODRIGUEZ,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of Florida
(March 12, 2019)
Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
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This appeal concerns whether the United States is immune from suit based
on Florida’s recreational use statute for an injury that occurred on an area made
available to the public for recreational use without charge. Odalvis Fernandez and
Julio Rodriguez were swimming near the island of Boca Chita Key in Biscayne
National Park near Miami, Florida, when Fernandez injured her foot by stepping
on a submerged piece of rebar. Fernandez and Rodriguez sued the United States
for negligence under the Federal Tort Claims Act (“FTCA”). 1 The FTCA provides
that the United States may be sued for actions in negligence if a private party
would be subject to suit in the same circumstances. 28 U.S.C. § 1346(b)(1). The
district court granted the United States’ motion to dismiss for lack of subject matter
jurisdiction because Florida’s recreational use statute limits the liability of persons
who make a portion of their property available for recreational use without charge.
We agree with the district court and affirm.
I. BACKGROUND
A. Factual Background and Procedural History.
On July 12, 2015, Odalvis Fernandez and Julio Rodriguez traveled on their
boat to Boca Chita Key, an island located in Biscayne National Park, near Miami,
Florida. They anchored the boat in the waters of Biscayne Bay near Boca Chita
1
Rodriguez brought a related claim for loss of consortium that is not at issue in this
appeal.
2
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Key and went swimming in the designated swimming area, which was marked by
white buoys with “a red symbol—a diamond shape with an X inside—and lettering
designating the beach as a swim area and prohibiting marine vessels from
entering.” While they were swimming, Fernandez injured her foot by stepping on a
piece of rebar protruding from a submerged piece of concrete.
Biscayne National Park is owned by the United States and managed by the
National Park Service. The National Park Service does not charge for entry into
Biscayne National Park but charges a $25.00 fee for camping or docking at Boca
Chita Key and Elliott Key, except during the summer when the fees are waived.
The National Park Service also rents the pavilion on Boca Chita Key for a fee of
$100.00 for four hours. The National Park Service charges no other fees in
Biscayne National Park.
Fernandez and Rodriguez filed their amended complaint against the United
States on August 4, 2017, alleging negligence under the FTCA. The United States
moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction, arguing that it is immune from liability under Florida’s
recreational use statute, Fla. Stat. § 375.251, because Fernandez’s injury occurred
in the designated swimming area of the park, which is made available to the public
free of charge. In response, Fernandez and Rodriguez argued that the United States
is not immune from liability because the National Park Service charges fees for
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camping and docking in Biscayne National Park. The district court granted
summary judgment in favor of the United States, concluding that “a plain reading
of the statute as a whole suggests that liability will not attach unless the injury
occurred in a distinct area where revenue is derived from patronage.” Fernandez
and Rodriguez appealed.
B. The FTCA and Florida’s Recreational Use Statute.
The FTCA provides that the United States district courts have jurisdiction
over damages claims against the United States alleging injury caused by “the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where
the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1). Therefore, to determine whether the United States has waived its
sovereign immunity under the FTCA, we must look to the law of the State where
the act or omission giving rise to the litigation occurred. Daniels v. United States,
704 F.2d 587, 591 (11th Cir. 1983); 28 U.S.C. § 2674. In this case, we look to
Florida law.
Florida’s recreational use statute, Fla. Stat. § 375.251, generally limits the
liability of private persons who make land, water, and park areas available to the
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public for recreational use without charge. Fla. Stat. § 375.251. Specifically,
section 375.251 currently provides, in relevant part: 2
(1) The purpose of this section is to encourage persons to make land,
water areas, and park areas available to the public for outdoor
recreational purposes by limiting their liability to persons using these
areas and to third persons who may be damaged by the acts or
omissions of persons using these areas.
(2)(a) An owner or lessee who provides the public with an area for
outdoor recreational purposes owes no duty of care to keep that area
safe for entry or use by others, or to give warning to persons entering
or going on that area of any hazardous conditions, structures, or
activities on the area. An owner or lessee who provides the public
with an area for outdoor recreational purposes:
1. Is not presumed to extend any assurance that the area is safe for
any purpose;
2. Does not incur any duty of care toward a person who goes on
the area; or
3. Is not liable or responsible for any injury to persons or property
caused by the act or omission of a person who goes on the area.
...
(c) The Legislature recognizes that an area offered for outdoor
recreational purposes may be subject to multiple uses. The limitation
of liability extended to an owner or lessee under this subsection
applies only if no charge is made for entry to or use of the area for
outdoor recreational purposes and no other revenue is derived from
patronage of the area for outdoor recreational purposes.
...
(5) As used in this section, the term:
2
Throughout this opinion, as we discuss both the current and former versions of the
statute, we use italics to show the portions of the statute that were amended by the Florida
legislature in 2012.
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(a) “Area” includes land, water, and park areas.
(b) “Outdoor recreational purposes” includes, but is not limited to,
hunting, fishing, wildlife viewing, swimming, boating, camping,
picnicking, hiking, pleasure driving, nature study, water skiing,
motorcycling, and visiting historical, archaeological, scenic, or
scientific sites.
The question we must answer in this appeal is whether section 375.251 shields an
owner or lessee from liability for an injury occurring in an area of a park in which
no fees are charged even though fees are charged elsewhere in the park.
We have addressed that question as it relates to an earlier version of section
375.251. See Kleer v. United States, 761 F.2d 1492 (11th Cir. 1985). Kleer
concerned an accident in which William Russell Kleer suffered a fractured neck as
a result of diving off the Florida State Route 19 bridge in the Juniper Springs area
of the Lake George District of the Ocala National Forest. Id. at 1493. Kleer argued
that Florida’s recreational use statute did not shield the United States from liability
because the Forest Service charged a fee for entry into parts of the Ocala National
Forest, though not the Lake George District. At the time of Kleer, former section
375.251 provided in relevant part:
(1) The purpose of this section is to encourage persons to make land, water
areas, and park areas available to the public for outdoor recreational
purposes by limiting their liability to persons using these areas and to third
persons who may be damaged by the acts or omissions of persons using
these areas.
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(2)(a) An owner or lessee who provides the public with a park area
for outdoor recreational purposes owes no duty of care to keep that
park area safe for entry or use by others, or to give warning to
persons entering or going on that park area of any hazardous
conditions, structures, or activities thereon. An owner or lessee who
provides the public with a park area for outdoor recreational purposes
shall not by providing that park area:
1. Be presumed to extend any assurance that such park area is
safe for any purpose,
2. Incur any duty of care toward a person who goes on that park
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
that park area.
(b) This section shall not apply if there is any charge made or usually
made for entering or using such park area, or any part thereof, or if
any commercial or other activity for profit is conducted on such park
area, or any part thereof.
…
(5) The term “outdoor recreational purposes” as used in this act shall
include, but not 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.
We concluded that section 375.251 foreclosed Kleer’s claim against the
United States because “the statute bars suits for injuries sustained in areas of parks
where no fee is charged and no commercial activity takes place” and no fee was
charged for entry into the Lake George area of the Ocala National Forest. Id. at
1495. We explained that “the phrase ‘park area’ denotes something less than the
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entire parcel of land,” meaning that the relevant area for purposes of the exception
from limited liability is the area in which the injury took place. Id. We also
explained that a narrow reading of the exception from protection against liability is
consistent with the statute’s express purpose to encourage people to make their
land available to the public for recreational use without compensation. Id.
Further, we looked to the construction of section 375.251 in two related
Florida state court decisions—Abdin v. Fischer, 374 So.2d 1379 (Fla. 1979) and
Sea Fresh Frozen Products, Inc. v. Abdin, 411 So.2d 218 (Fla. 5th Dist. Ct. App.
1982). Abdin arose from an accident in which the plaintiff slipped and fell on a
boat ramp, which was open to the public free of cost. 374 So.2d at 1379. The
defendant also maintained a retail and wholesale business on three separate parcels
of land. Id. at 1379–80. The state trial court entered summary judgment in favor of
the defendant. Id. at 1381. The Supreme Court of Florida reversed, concluding that
whether commercial activity occurred in the park area was a question of fact for
the jury to resolve. Id. After remand and on appeal, the Florida Fifth District Court
of Appeals concluded that the evidence was insufficient to prove that the defendant
conducted commercial activity within the area where the accident took place. Sea
Fresh Frozen Prods., 411 So. 2d at 220. We concluded that the “Abdin rule” was
that the fact that “commercial activity was conducted in other areas of the
defendant’s property did not preclude the defendant from invoking the protection
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of section 375.251 [when no commercial activity was conducted within the park
area where the injury occurred].” Kleer, 761 F.2d at 1494.
The Florida legislature amended section 375.251 to its current version in
2012, more than 26 years after the Kleer decision. The relevant 2012 amendments
replaced:
This section shall not apply if there is any charge made or usually
made for entering or using such park area, or any part thereof, or if
any commercial or other activity for profit is conducted on such park
area, or any part thereof.
Fla. Stat. § 375.251(2)(b) (1975), with:
The Legislature recognizes that an area offered for outdoor
recreational purposes may be subject to multiple uses. The limitation
of liability extended to an owner or lessee under this subsection
applies only if no charge is made for entry to or use of the area for
outdoor recreational purposes and no other revenue is derived from
patronage of the area for outdoor recreational purposes.
Fla. Stat. § 375.251(2)(c) (2012). The amendments also added a definition of
“area” to include “land, water, and park areas,” id. § 375.251(5)(a), and changed
“park area” to “area,” id. § 375.251
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal of an action for lack of
subject matter jurisdiction. Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.
2015). “Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co.
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of Am., 511 U.S. 375, 377 (1994). “[T]he burden of establishing [subject matter
jurisdiction] rests upon the party asserting jurisdiction.” Id. Given that the United
States raised a facial challenge to the complaint, we look to see if Fernandez and
Rodriguez “sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in [the] complaint are taken as true for the purposes of the motion.”
Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (quoting Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
III. DISCUSSION
Fernandez and Rodriguez argue that the district court erred in dismissing the
complaint for lack of subject matter jurisdiction because the United States would
be subject to liability under Florida’s recreational use statute as a private party. See
28 U.S.C. § 1346(b)(1); Fla. Stat. § 375.251. First, they argue that the plain
language of section 375.251 supports their reading, but that even if it does not, we
should reject the statute’s plain meaning because it leads to absurd results. Second,
they argue that the 2012 amendments render this Court’s decision in Kleer
inapplicable. Third, they argue that even if this Court agreed with the district court
that the United States has immunity with respect to injuries occurring in distinct
areas made available to the public without charge, there is a disputed factual
question as to whether the swimming area is a distinct area of Biscayne National
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Park. For the reasons that follow, we find each of Fernandez and Rodriguez’s
arguments unpersuasive.
A. Section 375.251 Provides that Liability Attaches Only if Charges Are
Made in the Distinct Area Where the Injury Occurred.
“When construing the language of a statute, we ‘begin where all such
inquiries must begin: with the language of the statute itself,’ and we give effect to
the plain terms of the statute.” In re Valone, 784 F.3d 1398, 1402 (11th Cir. 2015)
(alteration adopted) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235,
241 (1989)). “We do not look at one word or term in isolation, but instead we look
to the entire statutory context.” United States v. DBB, Inc., 180 F.3d 1277, 1281
(11th Cir. 1999).
At the same time, we are not deciding this case on a blank slate, and
therefore, this Court’s decision in Kleer must guide our analysis. “The Legislature
is presumed to know the judicial constructions of a law when amending that law,
and the Legislature is presumed to have adopted prior judicial constructions of a
law unless a contrary intention is expressed.” Fla. Dep’t of Children & Families v.
Florida, 880 So.2d 602, 609 (Fla. 2004) (citing City of Hollywood v. Lombardi,
770 So.2d 1196, 1202 (Fla. 2000)). We presume that the legislature “adopt[ed] the
existing interpretation unless it affirmatively acts to change the meaning.” Bledsoe
v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816, 822 (11th Cir.
1998). Therefore, our analysis is focused on the question of whether anything in
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the 2012 amendments “affirmatively acts to change the meaning” ascribed to
section 375.251 by Kleer. Id.3
Starting at the beginning of the statute, the legislature did not amend the
express statutory purpose contained in subsection (1). Subsection (1) provides:
“The purpose of this section is to encourage persons to make land, water, areas,
and park areas available to the public for outdoor recreational purposes by limiting
their liability to persons using these areas.” Fla. Stat. § 375.251(1). The legislature
also directed courts to “liberally construe[]” the provisions of the statute in order to
accomplish that purpose. Fla. Stat. § 375.061. The Kleer decision, and the district
court’s decision, are both consistent with that express statutory purpose.
Next, the legislature amended subsection (2)(a) by changing “park area” to
“area.” That subsection currently provides the general rule that “[a]n owner or
lessee who provides the public with an area for outdoor recreational purposes
owes no duty of care to keep that area safe for entry or use by others.” Fla. Stat.
§ 375.251(2)(a). At the time of Kleer, that provision read: “[a]n owner or lessee
who provides the public with a park area for outdoor recreational purposes owes
3
Fernandez and Rodriguez also argue that we should reject Kleer altogether because it
improperly applied Florida Supreme Court precedent. However, we may not depart from a prior
panel’s decision “based upon a perceived defect in the prior panel’s reasoning or analysis as it
relates to the law in existence at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir.
2001); see also United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc)
(“Under our prior panel precedent rule, a panel cannot overrule a prior one’s holding even
though convinced it is wrong.”).
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no duty of care to keep that park area safe for entry or use by others.” Fla. Stat.
§ 375.251 (1975). A similar change was made to subsection (2)(c) which limits the
general rule in subsection (2)(a) to situations in which “no charge is made for entry
to or use of the area for recreational purposes and no other revenue is derived from
patronage of the area for recreational purposes.” Id. § 375.251(2)(c). When this
Court decided Kleer the subsection provided that the limitation on liability shall
not apply “if there is any charge made or usually made for entering or using such
park area, or any part thereof, or if any commercial or other activity for profit is
conducted on such park area, or any part thereof.” Fla. Stat. § 375.251 (1975).
The general rule contained in subsection (2)(a) thus remains the same as the
previous version except for the substitution of “park area” for “area.” Fernandez
and Rodriguez argue that this change reflects an affirmative act to change the Kleer
interpretation because the legislature removed every reference to the term “park
area” that was at issue in Kleer. However, the legislature did not eliminate every
reference to “park area” but only moved it into the definition of “area.” At the time
this Court decided Kleer, the statute used the term “park area” but did not define
that term. This Court held that subsection (2)(a), and subsection (2)(c) which we
discuss specifically later, refer to the particular area where the injury occurred
because “park area” denotes something less than the entire parcel. With the 2012
amendments, the legislature simply changed the word in subsection (2)(a) to “area”
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and provided the following definition: “‘Area’ includes land, water, and park
areas.” Fla. Stat. § 375.251(5)(a). Accordingly, while this change expands the
types of areas within the statute to include land areas and water areas, it
nonetheless keeps the limiting term “area” such that our Kleer analysis continues
to apply. Further, this change is consistent with the express statutory purpose to
“encourage persons to make land, water areas, and park areas available to the
public,” id. § 375.251(1), which was not changed.
Fernandez and Rodriguez also argue that the new definition of “area” itself
reflects the legislature’s intent to change the Kleer interpretation of “park area” as
denoting something less than the entire parcel by including a broad definition of
“area.” However, the statutory definition merely tracks what Kleer said—that a
“park area” is something less than the entire parcel. The fact that the legislature
decided to add land areas and water areas does not change the essential fact,
recognized in Kleer, that a park area means something less than the entire parcel.
Turning to the exception to the limitation on liability in subsection (2)(c), as
already explained, that subsection continues to provide that an owner or lessee is
not exempted from liability if he charges for entry into or use of the area. The
“entry to or use of” clause remains substantively the same. And although the
legislature changed “any commercial or other activity for profit” to “revenue
derived from patronage,” that change is immaterial to the question presented here
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because it concerns the types of charges that cause the exception from limited
liability to apply, not the scope of the relevant area. Fernandez and Rodriguez
argue that by adding a new first sentence to subsection (2)(c) the legislature
affirmatively rejected Kleer. That sentence reads: “The Legislature recognizes that
an area offered for outdoor recreational purposes may be subject to multiple uses.”
But that sentence tracks Kleer and simply made explicit what was implicit in the
previous version of the statute—that an area might be subject to multiple uses.
Accordingly, we find nothing in the text of section 375.251 that constitutes an
affirmative act by the legislature to change the interpretation provided in Kleer.
Finally, in subsection (5), the legislature added the definition of “area,”
which includes three different types of areas—“land, water, and park areas.” Id.
§ 375.251(5)(a). Before the amendment, the statute referred only to “park area.” As
already explained, this change clarifies that land areas, water areas, and park areas
are within the scope of section 375.251, consistent with the express statutory
purpose to “encourage persons to make land, water areas, and park areas available
to the public.” Id. § 375.251(1). Accordingly, it tracks Kleer’s holding that the
exception from limited liability applies only if an owner or lessee charges fees in
the particular area where the injury occurred. We also find no affirmative act to
change Kleer in the amendment to subsection (5)(b). That amendment changed
“[t]he term ‘outdoor recreational purposes’ as used in this act shall include, but
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not be limited to, hunting, fishing, wildlife viewing, swimming, boating, camping,
picnicking, hiking pleasure driving, nature study, water skiing, motorcycling, and
visiting historical, archaeological, scenic, or scientific sites” to “‘[o]utdoor
recreational purposes’ includes, but is not limited to, hunting, fishing, wildlife
viewing, swimming, boating, camping, picnicking, hiking pleasure driving, nature
study, water skiing, motorcycling, and visiting historical, archaeological, scenic, or
scientific sites.” That minor change to the definition of a term not at issue in Kleer
does not reflect an affirmative attempt to change Kleer’s holding that “park area”
denotes something less than the entire parcel.
Fernandez and Rodriguez argue that even if the plain meaning of section
375.251 continues to require adherence to Kleer, we should reject that plain
meaning because it leads to absurd results. In particular, they assert that the
legislature could not have intended the anomalous result that the United States
would be immune with respect to injuries occurring in the pavilion on Boca Chita
Key but not in the designated swimming area or on the walkway to the pavilion.
We disagree that such result is absurd. The legislature could reasonably have
decided to limit liability with respect to each specific area that is made available
free of charge in order “to encourage persons to make land, water areas, and park
areas available to the public for outdoor recreational purposes by limiting their
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liability to persons using these areas.” Fla. Stat. § 375.251(1). In fact, that is
exactly what this Court recognized in Kleer. Kleer, 761 F.2d at 1495.
Having found nothing in the text of section 375.251 that clearly shows the
legislature sought to change Kleer’s interpretation of that statutory provision, we
apply the holding of Kleer that an owner or lessee is immune from liability so long
as he makes no charges in the particular area where the injury occurred.
B. It is Undisputed that the United States Does Not Charge Fees for Use
of or Derive Revenue from the Relevant Park Area.
Fernandez and Rodriguez argue that even if we conclude that the United
States is not liable for injuries occurring in distinct areas where no fees are
changed, a disputed factual question exists about whether the swimming area, the
boat dock, the pavilion, and the camping areas are inextricably intertwined such
that they are one area for purposes of section 375.251. However, we do not find
such issue fairly disputed.4 Fernandez and Rodriguez’s amended complaint does
not allege that the swimming area is so intertwined with other areas of Biscayne
National Park that it is not a distinct area. In fact, the amended complaint alleges
4
Fernandez and Rodriguez argue that Florida courts often have determined that the
applicability of section 375.251 is an issue of fact that must be decided by a jury citing Abdin,
374 So.2d at 1380, Arias v. State Farm Fire & Casualty Co., 426 So.2d 1136, 1139 (Fla. 1st
Dist. Ct. App. 1983), and Goodman v. Juniper Springs Canoe Rentals & Recreation, Inc., 983 F.
Supp. 1384, 1387 (M.D. Fla. 1997). However, in those cases, there were disputed factual issues
about whether the defendant owned the relevant area or whether the defendant charged fees or
received revenue from such area. Here, Fernandez and Rodriguez do not dispute that the United
States owns Biscayne National Park, nor do they dispute that the United States does not charge
fees for or receive revenue from use of the designated swimming area.
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that the “designated swimming area” was surrounded by white buoys with “a red
symbol—a diamond shape with an X inside—and lettering designating the beach
as a swim area and prohibiting marine vessels from entering.” Because we must
consider those allegations as true, McElmurray v. Consol. Gov’t of Augusta-
Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007), we conclude that the
swimming area is distinct from the other areas of Boca Chita Key. And since
Fernandez and Rodriguez do not allege that the United States charges fees for or
derives revenue from use of the designated swimming area, the United States did
not waive its sovereign immunity under the FTCA, and the district court properly
dismissed the complaint.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
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