          Case: 18-14063   Date Filed: 10/21/2019   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 18-14063
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:17-cv-00588-RV-EMT



TERASA LYNN KNOLL,

                                                         Plaintiff – Appellant,

                                  versus

PARADISE BEACH HOMES, INC.,

                                  Defendant – Third Party Plaintiff – Appellee

JOANNE O. WILLIAMS,

                                           Defendant – Third Party Defendant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                           (October 21, 2019)

Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.
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PER CURIAM:

       After sustaining injuries resulting from a dive off a pier into the Santa Rosa

Sound, Terasa Knoll sued Paradise Beach Homes (“Paradise”), which managed

and marketed the vacation property where she was staying, for negligence. She

now appeals the district court’s order granting summary judgment in favor of

Paradise. After careful review, we determine that issues of fact remain regarding

whether Paradise negligently failed to warn Knoll of the dangers of diving off the

pier. We vacate the grant of summary judgment in favor of Paradise and remand

for further proceedings.

                                               I.

       The parties agree on the facts. Knoll, a twenty-seven-year-old woman, was

staying with some friends at a short-term vacation rental home in Pensacola Beach,

Florida. The vacation property was owned by Joanne Williams 1 and exclusively

managed and marketed by Paradise. The property included a 188-foot private pier.

The pier, which jutted out into the Santa Rosa Sound, was advertised by Paradise

as “great for boats, fishing and swimming.”

       On May 25, 2016, Knoll flew into Pensacola from San Francisco, California

and arrived at the house around 12:45 a.m. Upon her arrival, she visited with her



       1
         Paradise filed a third-party complaint against Williams on April 10, 2018. Williams is
not a party to this appeal.
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friends and “swigged” a drink of vodka. Shortly thereafter, she and a friend, Maria

Fierro, decided to go swimming. The two women ran down the length of the pier

and prepared to enter the water. Fierro jumped into the water feet first. Knoll

dove into the water head first. Knoll hit her head on the bottom and suffered a

severe spinal injury, rendering her quadriplegic.

      Knoll, who describes herself as “an experienced swimmer and diver,” had

previously dived “hundreds of times” into natural bodies of water all over the

world. She was a certified scuba diver and a member of her high school swim and

dive team for four years. During her deposition, she testified that she had never

been to Florida and thought that she was diving into the deep waters of the ocean—

rather than into the shallow depths of the Santa Rosa Sound. The night was

“completely dark,” so she could not see the depth of the water surrounding the

pier. She described the water as looking like “black glass.”

      The water level where Knoll dove was 3 feet 8 inches; the pier was

approximately two-and-a-half feet from the surface of the water. The pier had a

swim ladder near the point where the women entered the water. There was also a

faded “NO DIVING” sign stenciled onto the wooden boards. The pier did not

have any railing or lighting.

      The district court granted Paradise’s motion for summary judgment. The

court held that a common theme in cases imposing a duty to warn against the


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dangers of diving into shallow water was that the property owner “either

affirmatively did something that led to the injury at issue or they failed to act based

on prior knowledge.” The court then found that there “was no history of anyone

ever diving head first off the pier, and the defendant (an off-site property manager)

neither owned nor built the pier and was contractually limited in what it was

required and allowed to do with respect to the property.” Thus, the court held that

Paradise had no duty to warn Knoll of the dangers of diving. Knoll now appeals.

                                          II.

      As this case arises under diversity jurisdiction, we apply Florida substantive

law. “In interpreting Florida law, we look first for case precedent from the Florida

Supreme Court. Where we find none, we are ‘bound to adhere to decisions of the

state’s intermediate appellate courts absent some persuasive indication that the

state’s highest court would decide the issue otherwise.’” Winn-Dixie Stores, Inc. v.

Dolgencorp, LLC, 746 F.3d 1008, 1021 (11th Cir. 2014) (quoting Provau v. State

Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir. 1985) (per curiam)).

      The only question before us—whether Paradise owed Knoll a duty to warn

Knoll about the shallow depth—is legal. See Wallace v. Dean, 3 So. 3d 1035,

1046 (Fla. 2009) (“A duty of care is ‘a minimal threshold legal requirement for

opening the courthouse doors.’” (quoting McCain v. Fla. Power Corp., 593 So. 2d

500, 502 (Fla. 1992))). Under Florida premises-liability law, “the status of the


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entrant is pertinent to the duty of care owed by the landowner.” Estate of Marimon

ex rel. Falcon v. Fla. Power & Light Co., 787 So. 2d 887, 890 (Fla. 3d DCA

2001). An entrant falls into one of three categories: licensee, invitee, or trespasser.

Charterhouse Assocs., Ltd., Inc. v. Valencia Reserve Homeowners Ass’n, Inc., 262

So. 3d 761, 764 (Fla. 4th DCA 2018). The parties here agree that Knoll was an

invitee. The duties owed by a possessor of land to an invitee are twofold: “(1) to

use reasonable care to maintain [its] premises in a reasonably safe condition and

(2) to warn the invitee of any concealed dangers that the owner knows or should

know about, which are unknown to the invitee and cannot be discovered by the

invitee through due care.” Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362,

365 (Fla. 2013) (alteration in original) (quoting Morales v. Weil, 44 So. 3d 173,

178 (Fla. 4th DCA 2010)). This case boils down to the second duty—specifically,

whether Paradise had a duty to warn Knoll about the shallow depth.

                                          A.

      We find that the Florida Supreme Court’s decision in Brightwell v. Beem, 90

So. 2d 320 (Fla. 1956), dictates the outcome here. There, a teenage girl paid to

enter an amusement park and bathing beach. Id. at 321. A thirty-five foot

“wooden platform” extended from the shoreline into the lake. Id. The girl dove

off the platform into the water, struck bottom, and became quadriplegic as a result.

Id. Her fateful dive took place about two-thirds of the way down the platform


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from shore, the water’s depth was between three and three-and-a-half feet, and the

platform sat about two feet above the water’s surface. Id. The platform was not

intended for diving, only for swimming and sunbathing. Id. at 323. Throughout

the morning and the afternoon of the day of the accident, though, it had been used

for diving. Id. One of the employees, moreover, witnessed the victim prepare to

take the fateful dive. Id.

      The material facts here are the same. Knoll, an invitee, dove off a wood pier

that extended from the shoreline into the Santa Rosa Sound, a body of natural

water. She too struck bottom and was rendered quadriplegic as a result. The

water’s depth where she dove was a little over three-and-a-half feet. Indeed, as it

relates to the duty of care, the facts here are stronger than those in Brightwell.

Knoll dove at the end of the pier, some 188 feet from the shoreline. It stands to

reason that the further one goes out into the water, the more likely it is to be

deeper.

      Paradise argues that Brightwell is distinguishable on three fronts.

      It first argues that a heightened duty of care attends to amusement parks.

Under Florida law, however, both Knoll and the Brightwell plaintiff were invitees

who were owed the same duty of care. Friedrich, 137 So. 3d at 365 (quoting

Morales, 44 So. 3d at 178). To be sure, the Brightwell court cited American

Jurisprudence to articulate the degree of care owed by the operator of a “public


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amusement area.” 90 So. 2d at 322. Paradise reads this language to indicate that it

was subject to a lesser duty of care than the Brightwell defendant.

      Another Florida defendant has already tried to argue, based on the same

passage of Brightwell, that amusement parks owe a heightened duty of care. The

Florida Fourth District Court of Appeals rejected the argument. In Sergermeister

v. Recreation Corp. of America, 314 So. 2d 626, 626–27 (Fla. 4th DCA 1975), the

Fourth DCA affirmed the trial court’s refusal to instruct the jury that places of

public amusement are subject to a “higher degree of care.” Collecting cases, the

court concluded, “None of these authorities require or even suggest that an

instruction of a high degree of care should be given when an amusement park is a

defendant. Rather, they, with some specificity, endorse the proposition that the

duty owed is one of [r]easonable care.” 314 So. 2d at 629; see also W. Flagler

Assocs., Ltd. v. Jackson, 457 So. 2d 587, 588 (Fla. 3d. DCA 1984) (per curiam)

(indicating that for a “place of amusement where large crowds congregate,” the

duty is to maintain the premises in a “reasonably safe condition commensurate

with the business conducted”). This is precisely the same standard owed to an

invitee. See Friedrich, 137 So. 3d at 365 (observing a duty “to use reasonable care

to maintain [its] premises in a reasonably safe condition”).

      Paradise next argues that the Brightwell defendant had knowledge of the

dangerous condition, given the diving that had taken place in the day leading up to


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the accident. But—viewing the record in the light most favorable to Knoll—

Paradise had knowledge of the dangerous condition as well. As Knoll argues, the

stenciled “NO DIVING” on the wood boards at the end of the pier gave Paradise

constructive notice of the danger. The law imposes constructive notice pursuant to

the “legal duty to use reasonable care to look for, and to discover, reasonably

foreseeable but not actually known dangerous conditions.” Winn-Dixie Stores, Inc.

v. Marcotte, 553 So. 2d 213, 215 (Fla. 5th DCA 1989). Because the stenciled

warning predated Paradise’s management of the property, a question of fact exists

as to whether it had constructive notice of danger. Cf. Newalk v. Fla.

Supermarkets, Inc., 610 So. 2d 528, 530 (Fla. 3d DCA 1992) (remanding for a jury

trial on the issue of constructive notice). Knoll could prove constructive notice by

circumstantial evidence, id., such as “by showing that the dangerous condition

existed for such a length of time that in the exercise of ordinary care, the defendant

should have known of the condition.” Brooks v. Phillip Watts Enters., Inc., 560

So. 2d 339, 341 (Fla. 1st DCA 1990).

      Paradise argues for the first time in its brief to this Court that “[t]here is no

evidence that Paradise even knew the words were painted on the dock prior to

Knoll’s accident,” and that the homeowner had painted it “before Paradise began

managing the home.” As Knoll points out, Paradise photographed and specifically

advertised the pier which casts doubt on its assertion that it had never seen the


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words. The record also contains evidence that, under the terms of the management

contract, Paradise was to conduct “semi-annual inspections of the premises” and

had previously hired a contractor to repair the pier. Therefore, whether Paradise

knew of the sign—or whether, given its management of the property, it “should

have known”—presents an issue of fact for the jury. Brooks, 560 So. 2d at 341.

      And Florida premises-liability law does not distinguish between actual and

constructive notice in imposing a duty to invitees. See Friedrich, 137 So. 3d at

365 (quoting Morales, 44 So. 3d at 178). Indeed, a key difference between the

duty owed to invitees and trespassers, for example, is that only the former

encompasses the duty to discover dangers. Post v. Lunney, 261 So. 2d 146, 147

(Fla. 1972) (“He must not wil[l]fully and wantonly injure a trespasser; . . . where

the visitor is an invitee, he must keep his property reasonably safe and protect the

visitor from dangers of which he is, or should be aware.”). There is evidence from

which a jury could find that Paradise “should have known” of the dangers of

diving from the pier into the shallow water.

      Paradise then argues that Knoll—who was twenty-seven years old and an

experienced diver—had a greater recognition of the dangers of diving in shallow

water than the fifteen-year-old plaintiff in Brightwell. But as the Florida Supreme

Court stated in Brightwell, it is “a matter within the province of the jury” to

determine whether the proximate cause of Knoll’s injuries was the defendant’s


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failure to warn or Knoll’s own carelessness. 90 So. 2d at 323. The circumstances

here—the lack of illumination, the lack of a railing on the pier, Knoll’s

unfamiliarity with the area, the lack of visible warning signs, Knoll’s age and

experience, and the conditions of the night in question—present a jury question as

to comparative negligence.

                                          B.

      Having determined that Brightwell controls, we need not address decisions

of the Florida District Court of Appeal. We find comfort in our decision, however,

from an opinion of the Second DCA.

      The facts in First Arlington Inv. Corp. v. McGuire, 311 So. 2d 146 (Fla. 2d

DCA 1975) are similar to those here. In First Arlington, a pier—“included in [the

hotel’s] facilities”—extended 220 to 300 feet into a gulf. Id. at 147. There were

no signs warning persons not to dive nor indicating the depth of the water. Id. at

148. Despite the presence of a four-foot railing around the border of the pier, there

was evidence that persons “frequently” dove from the pier into the gulf. Id. The

plaintiff climbed on the four-foot railing that bordered the pier, dove, struck

bottom, and became paralyzed as a result. Id. After a jury found for the plaintiff,

the defendant appealed that it was not negligent as a matter of law. Id. Following

Brightwell, the Second DCA determined that it was for the jury to decide (1) if the

defendants “were negligent for their failure to warn appellee not to use the pier for


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a purpose (diving) other than the admittedly intended purpose” and (2) whether

plaintiff’s comparative negligence barred recovery. Id. at 151.

       Paradise argues that, unlike in First Arlington, there is no evidence that the

pier was customarily used for diving. But the landowner’s duty to warn invitees is

not limited to customary dangers: it includes concealed dangers that the landowner,

through reasonable care, “should know about.” Friedrich, 137 So. 3d at 365. That

can be shown either by evidence that the condition “occurred with regularity” or

that the dangerous condition had existed for long enough that the defendant should

have discovered it. Brooks, 560 So. 2d at 341. As we explained above, whether

the stenciled “NO DIVING” sign constitutes constructive notice is a question of

fact for the jury.

                                          C.

       The cases that Paradise brings to our attention from the other DCAs are not

persuasive. In Poleyeff v. Seville Beach Hotel Corp., 782 So. 2d 422, 424 (Fla. 3d

DCA 2001) (en banc), the Third DCA, sitting en banc, stated, “[W]e hold 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.”

Id. (footnotes omitted). Poleyeff involved a drowning by a hotel guest off a public

beach. Id. at 422; see also Sperka v. Little Sabine Bay, Inc., 642 So. 2d 654, 654,


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656 (Fla. 1st DCA 1994) (per curiam) (holding that a hotel did not have a duty to

warn its guest of shallow depths at an adjacent “public beach area”). The court

made clear that the decision hinged on the defendant’s control of the premises. See

Poleyeff, 782 So. 2d at 424 n.6 (“Landowners may, of course, be liable for failure

to correct or warn about known defects peculiar to specific areas for which they are

responsible.”). Poleyeff is thus inapplicable here, where Paradise controlled the

platform from which Knoll dove.2

       Paradise also brings to our attention cases that we read to assert that shallow

depths are, as a matter of law, open and obvious dangers. Stated another way,

Paradise argues there was no unusual element of danger about the pier being

situated above shallow water and Paradise cannot be held liable for naturally

occurring conditions. For example, in Switzer v. Dye, 177 So. 2d 539, 541 (Fla. 1d

DCA 1965), the First DCA found that a pier situated five feet above water with a

depth of three to five feet was not a “trap or an unusual element of danger.” Other

DCAs have subsequently cited to Switzer for the proposition that “[s]hallow water,

insufficient for diving, does not constitute a trap.” Hughes v. Roarin 20's, Inc., 455



       2
         In its motion for summary judgment, Paradise argued that the duty to business invitees
is a nondelegable duty of the landowner and thus, as a property management company, Paradise
had no duty to Knoll. Paradise does not make this argument in its Appellee Brief. Paradise
does, however, concede that “Knoll is correct that the homeowner, and in turn Paradise,
exercised some degree of control over the pier.” Paradise’s “control” over the pier imposes a
duty of care concurrent with that of the property owner. Worth v. Eugene Gentile Builders, 697
So. 2d 945, 947 (Fla. 4th DCA 1997).
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So. 2d 422, 424 (Fla. 2d DCA 1984) (quoting Savignac v. Dep't of Transp., 406

So. 2d 1143, 1146 (Fla. 2d DCA 1981)); see also Seitz v. Surfside, Inc., 517 So. 2d

49, 51 (Fla. 3d DCA 1987).

      These cases are inapposite though: each considered and rejected liability

based on the attractive nuisance doctrine rather than on a landowner’s duty toward

invitees. The court in Switzer, for example, distinguished its holding from another

case that was “decided on the law applicable to the duties of landowners to

licensee.” 177 So. 2d at 541. In Hughes, the platform from which the plaintiff

dove was not part of Roarin 20’s campground facility and the plaintiff was a

trespasser on the other defendant’s property. 455 So. 2d at 423. In Seitz, the court

determined that Surfside owed only a limited duty to Seitz as he was a trespasser

on the pier. 517 So. 2d at 50. The distinction is important because a landowner

owes only a limited duty to trespassers but has a duty to warn invitees of certain

dangers and, under certain circumstances, to take additional precautions. Stewart

v. Boho, Inc., 493 So. 2d 95, 96 (Fla. 4th DCA 1986) (“[W]here the danger is of

such a nature that the owner should reasonably anticipate that it creates an

unreasonable risk of harm to an invitee notwithstanding a warning or the invitee’s

knowledge of the danger, then reasonable care may require that additional

precautions be taken for the safety of the invitee.”).




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      For example, in Savignac, 406 So. 2d at 1146, the Second DCA found that

the landowner had a duty to warn the plaintiff of the danger of diving from a

bridge into shallow water. The defendant had knowledge that previous trespassers

had been diving from the bridge and that the depth of the water had been

substantially reduced from recent shoaling. Id. Given the defendant’s knowledge

of other trespassers, the court characterized the plaintiff as a licensee. Id. The

court found that, because of the landowner’s duty toward licensees, “some sort of

warning” would have been appropriate and reversed the grant of summary

judgment for the defendants. Id. at 1147.

      Furthermore, a conclusion that diving into shallow water is an open and

obvious danger does not absolve the landowner of liability but is a factor that the

jury should weigh for comparative negligence. Knight v. Waltman, 774 So. 2d 731,

734 (Fla. 2d DCA 2000) (“The invitee’s knowledge of the danger is not a complete

bar to recovery, but rather triggers the application of comparative negligence.”);

Ahl v. Stone Sw., Inc., 666 So. 2d 922, 924 (Fla. 1st DCA 1995) (“[T]he fact that

the danger is known or obvious is important in determining whether the invitee

may be charged with comparative negligence. It is not conclusive, however, in

determining the duty of the landowner, or whether he or she acted reasonably

under the circumstances.”). Therefore, these cases do not go so far as to



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demonstrate that—as a matter of law—Paradise had no duty to warn Knoll of the

dangers of diving from the pier into the shallow water.


                                        III.

      Because issues of fact remain regarding whether Paradise had constructive

notice of the danger posed by dives from the pier into the shallow water and

whether Knoll was comparatively negligent in attempting such a dive, we

VACATE the district court’s order granting summary judgment in favor of

Paradise and REMAND for further proceedings consistent with this opinion.




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