Expert Witness Chronicles: Beware the Shifting Sandbars
Editor’s Note: This is the third of seven articles on an expert witness case in the hospitality industry. Start with the first in the series.
By Dr. Gary Deel, Faculty Director, School of Business, American Military University
Paul was left a quadriplegic when his head and neck hit a sandbar while swimming in the ocean outside his hotel in Miami Beach. His attorney hired me as an expert witness to review the circumstances of the case and to testify whether the hotel had breached any duty to Paul by not warning him about the hazardous sand bar in the water.
It could be argued that the hotel was responsible for safety on the beach adjacent to its property despite the fact that the hotel did not actually own the beach. It almost seemed like an open and shut case.
But the hotel built a strategy to push back. And push back it did. The first argument in its own defense was that the hotel staff had no reason to know about the hazard of underwater sandbars. But Paul was an invitee (he was a paying guest). So even if the hotel was not actually aware of the sandbar, as long as a court would find the hotel accountable for safety on the beach, it had a duty to inspect the area for hazards and either ameliorate them or, if not possible, at least warn about them. So ignorance was not a defense.
If a Hazard Is Apparent, the Property Owner Need Not Necessarily Publish a Warning
The hotel then raised the patent hazard defense. Generally, the law holds that if a hazard is so apparent so as to be patent (that is, obvious) to those who would see it and have sufficient time to react and avoid it, the property owner need not necessarily publish a separate warning about it. For example, if a hotel lobby has a fireplace, the hotel probably doesn’t need to provide a warning about the danger of touching the fire because a) the fire will be bright and hot, and b) reasonable people generally know that they will be burned from touching the flame.
Contrast this example with something like a water spill on the marble floor of a hotel lobby. Pedestrians might not see clear water on a shiny surface, so without a sign or some type of warning, a slip and fall would likely occur.
In Paul’s case, the hotel argued that the sandbar was obvious; it was the kind of patent hazard that Paul should have seen and avoided without needing a separate warning. It was acknowledged that Paul frequently swam in the ocean in New York where he lived. So didn’t he know about sandbars? Didn’t he know to look for them when he was in the water?
Sandbars on South Beach Are Different Than Other Sandbars
The answer here is yes and no. Indeed, Paul was used to swimming in the ocean in New York. He even acknowledged familiarity with sandbars there. But the crux of the issue in this case was that sandbars on South Beach are not at all like sandbars on most beaches of the world because of Miami’s unique coastline.
Miami is actually eroding into the sea, and it has been for decades. Strong ocean currents from the jet stream push water onto the beach and pull the sand out into the sea. With every crashing wave, the hotels of South Beach get a little bit closer to becoming giant aquariums.
To prevent this, the city of Miami has done two things. First, it has artificially backfilled the beach with sand. Periodically, huge dump trucks bring sand to Miami Beach and replenish what has been lost to the ocean. Second, the city has created an artificial reef program, whereby scuttled vessels and old oil platforms are combined with thousands of tons of concrete and limestone to create a manmade barrier against continued erosion off the coast.
The result of these activities on South Beach is an extreme subsurface topography. Sandbars grow much larger and steeper than in other parts of the world because, after encountering the artificial reef, the eroded sand has nowhere else to go.
On most beaches, the water generally gets deeper the further out you go. However, in Miami, it’s not uncommon to walk into the water and find it getting deeper, then suddenly get very shallow again. There are parts of South Beach where a swimmer can wade into the water up to his waist, then take just two or three more steps away from shore and suddenly find himself standing atop a sandbar where the water comes up only up to his ankles.
To make matters worse, these sandbars are not obvious. The break of the waves and the turbulent waters from the ebb and flow obstruct the view of the bottom. On some windy days it can be virtually impossible to see a sandbar, even when it is only a few feet away. Also, due to the moving ocean currents, sandbar dynamics change over time. So even if a swimmer knew their exact sizes and locations today, they could be in different spots tomorrow.
So the argument that the hazard was obvious didn’t look promising at trial. But what about the argument that Paul assumed the risk that he would be injured in the ocean? What about the notion that he knew he was on a public beach and not subject to hotel protections? In the next article, we’ll see how these attempted defenses played out.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a JD in Law and a Ph.D. in Hospitality/Business Management. He teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others. To contact the author, email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.