Rip Currents and Landowner Liability
A Short Discussion of the Law 1

Josh Clemons

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 the Rip.”3

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.

The Tort of Negligence
If someone drowns because of a rip current, and his or her survivors decide to sue a beachfront landowner (such as the hotel at which the people who drowned were guests), their suit is most likely to be based on the tort of negligence. The tort of negligence has four elements, all of which must be present for a successful suit: (1) the defendant must have owed a duty of care to the plaintiff, (2) that duty must have been breached, (3) the plaintiff must have suffered an injury, and (4) the injury must have been caused by the defendant’s breach of the duty of care. In sum, negligence = duty + breach + injury + causation.

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.

Beachfront Landowners’ Duty of Care
Generally speaking, a landowner has a duty to non-trespassers on her land to either warn them of dangerous conditions on her land, or to make those conditions safe. However, a landowner generally does not have a duty to warn people on her land about dangerous conditions on adjacent property. The underlying common-sense principle is that she cannot be held liable for dangerous conditions on another’s land because she did not create the conditions and has no control over them.

n most states, a beachfront landowner’s 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 Int’l 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 man’s 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 currents occur.

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 another’s land is applied.

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 girl’s 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 court’s 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

State Landowner Liability
The state usually owns the land seaward of the high tide line, which is the property on which rip currents occur. Thus it is logical to suppose that the state could be sued for failure to warn of rip currents. The state, however, enjoys sovereign immunity from suit by citizens, which means that the only way one can sue the state is if the state consents to the suit.

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.
The suit would likely be unsuccessful, however. Most Tort Claims Acts include a big exception: the discretionary duty exception.16 Under this exception, the state retains its sovereign immunity for torts committed by its agencies or employees in the course of carrying out discretionary duties or functions. A function or duty is discretionary if it involves an element of judgment or choice; a duty that is proscribed by statute, regulation, or policy is not considered discretionary.17 A general and accurate statement about whether posting warning signs for rip currents is a “discretionary function” cannot be made, because the facts and law may vary so widely from state to state. Each state must carefully examine its unique situation to determine the best course of action.

“Will Posting or Distributing Rip Current Warnings Increase My Liability?”
Beachfront landowners sometimes think that posting signs or distributing information warning of dangers in the ocean may somehow increase their liability if someone is injured. This belief is not supported by the law, which reflects the sound public policy favoring protection of public safety by warning of dangers. Research on this topic uncovered no cases in which a landowner was found to be liable for injuries occurring on adjacent property because he warned of dangers on that property. If there is a duty to warn (which is unlikely, as discussed in the Pacheco case above), then warning will satisfy the duty and there will be no liability. If there is no duty to warn, then there can be no liability for negligence at all. Posting or distributing warnings would simply be “going the extra mile,” safety-wise.18

Conclusion
For beachfront landowners there is generally no liability for rip current injuries because the landowner neither creates the danger nor controls the property on which the danger occurs. Therefore, the beachfront landowner is not obligated to warn of dangers in the ocean. Nonetheless, a beachfront landowner should not be discouraged from warning visitors about rip currents by fear of increased liability. Raising awareness of rip currents is one way to “Break the Grip of the Rip.”

FOR MORE INFORMATION: http://www.ripcurrents.noaa.gov

ENDNOTES
1. The information in this article was presented in different form at a June 24, 2004 workshop on rip currents at Gulf Shores State Park, Alabama, sponsored by the Mississippi-Alabama Sea Grant Consortium.
2. Nat’l Oceanic and Atmospheric Admin., Nat’l Weather Serv., Office of Climate, Water, and Weather Servs., Rip Currents: Break the Grip of the Rip <http://www.ripcurrents.noaa.gov/>.
3. For more information on this effort, please visit <http://www.ripcurrents.noaa.gov/>.
4. 28 Cal. Rptr. 2d 23 (Cal. App. 1994).
5. Id. at 26.
6. 39 Cal. Rptr. 2d 457 (Cal. App. 1995).
7. Darby v. Compagnie Nat’l Air France, 753 N.E.2d 160 (N.Y. 2001). The hotel was actually located in Brazil, but for reasons beyond the scope of this article the case was decided in New York under New York law. The surf area was government property, as in the U.S.
8. Poleyeff v. Seville Beach Hotel Corp., 782 So. 2d 422, 424 (Fla. App. 2001).
9. See Restatement (Second) of Torts § 314A (2004) (stating rule).
10. Id. cmt. c.
11. 220 F.3d 1126 (9th Cir. 2000).
12. Id. at 1132 (emphasis added).
13. 28 Cal. Rptr. 2d at 28 (quoting Moby Dick).
14. Warning signs and brochures may be downloaded at <http://www.ripcurrents.noaa.gov/graphics.shtml>.
15. E.g., Miss. Code § 11-46-5 (Mississippi Tort Claims Act).
16. E.g., Miss. Code § 11-46-9(d).
17. See generally Jean F. Rydstrom, Annotation, Claims Based on Construction and Maintenance of Public Property as within Provision of 28 U.S.C.A. § 2680(A) Excepting from Federal Tort Claims Act Claims Involving “Discretionary Function or Duty,” 37 A.L.R. Fed. 537 (discussing discretionary duty exception to Federal Tort Claims Act, which is similar to most state Tort Claims Acts).
18. Of course, one must warn in a non-negligent manner; that is, as a reasonable person exercising ordinary care would do under the circumstances. This standard is not a difficult one to meet.

University of Mississippi