You Be the Judge: The Case of the Raging Riptide (Full story)

If you jump in the ocean, you swim at your own risk. Right?

By Robin Gerber

A Tragic Turn of the Tide

Rabbi Israel Poleyeff, a high school teacher in Cedarhurst, New York, didn't have much time for vacations. Neither did his wife, Eugenie, a school secretary. That's why the couple, both in their 60s, had been looking forward to a trip to Miami Beach during the break between school terms in February 1997.

Zachary Breaux, another New Yorker, headed to Miami Beach that week as well. The 36-year-old jazz guitarist was there with his wife, Frederica, and their young daughters, Alexis, Mia and Nina. Breaux's latest album, Uptown Groove, had just reached No. 14 on Billboard's contemporary jazz chart, and the family had gone to Miami Beach to celebrate.

Neither family could have known that their lives were about to be tragically linked. The Breauxes were staying at the Seville Hotel, on the water at 29th Street. On their last day of vacation, they strolled out to join other beach-goers already enjoying the sand, sun and surf. The beach had a city-run bathhouse with showers and picnic tables, and a tiki hut that housed Hurricane Beach Rentals, with beach chairs, umbrellas and watersport equipment. What the beach did not have was a lifeguard.

That same day, the Poleyeffs made their way down to the 29th Street beach. Eugenie Poleyeff loved to swim. So, as her husband enjoyed the sunny day, Eugenie joined a number of others already in the water.

But no one at the 29th Street beach knew that a riptide was rushing with deadly force under the surface. A riptide is a narrow slice of rapidly coursing water that moves away from the shore -- and Eugenie had the extreme bad luck of swimming right into this perilous current. The powerful riptide immediately pulled her out to sea.

As Eugenie cried out for help, it was Zachary Breaux, building sand castles with his daughters, who heard her screams. The young father shot into the water, while his wife ran toward the boardwalk to find a lifeguard. Zachary's daring leap into the sea made perfect sense to his family: In 1988, the excellent swimmer and former Eagle Scout had saved a drowning man off the coast of Italy.

But the riptide proved too strong even for him: Zachary was also overcome by the ocean's force. Horrified bystanders gathered at the surf's edge and watched the two swimmers thrash in the ocean. Incredibly, a group of men were able to snatch the pair and bring them to shore. A few of the men were still administering CPR when a lifeguard ran up from a beach eight blocks away. But it was too late. Eugenie and Zachary both died.

The Poleyeff and Breaux families sued Miami Beach, arguing that the city had control over the area. The city should have warned swimmers of rip currents, they claimed. And why weren't lifeguards on duty? Anyone could see people were swimming. Didn't Miami Beach have a duty to provide ocean-lovers with a safe place to swim?

After all, the city seemed to be encouraging people to swim by supplying public showers and watersport rentals. At every other beach where the city offered these amenities, there were also lifeguards. The day of the drowning, the lifeguard at the 21st Street beach, just eight blocks away, had even posted riptide warning flags. This tragedy could have been avoided if Miami Beach had shown reasonable care.

The city saw its responsibilities differently. Miami Beach's lawyers certainly did not think licensing beach- equipment rentals increased the city's responsibility for swimmers. And the attorneys were adamant that the city couldn't protect against riptides, events that occur suddenly, randomly, and in oceans all over the world. How could the city protect people from the natural force of the sea? Keep in mind that Florida has over 2,000 miles of shoreline. It would be impossible to protect the public at all times.

Besides, the city council had decided which beaches along the vast shoreline to specify as swimming areas. These beaches had posted signs informing the public that swimming was allowed. The 29th Street beach had not been designated a swimming area, and had no sign indicating that swimming was -- or was not -- allowed.

For Miami Beach to be held liable for the deaths, a city attorney argued, "you'd have to say that the Atlantic Ocean itself is a hazardous condition that must be guarded and protected against." People have a right to swim wherever they want, the city said, but Miami Beach didn't have a duty to protect them wherever and whenever they chose to swim.

Did the city of Miami Beach have a duty to warn swimmers of danger, or did Poleyeff and Breaux swim at their own risk? You Be the Judge -- then find out if the court ruled the way you did!

The Verdict

Last year, the Florida Supreme Court made clear that Miami Beach was running the beach on 29th Street as a public swimming area. The city was responsible for the beach and water activities.

The court added that by supplying amenities, especially beach rentals, the city influenced people's selection of that area for swimming. The public was led to believe that swimming was allowed -- signs or no signs. The court even went so far as to say that Miami Beach knew people were swimming there and as a result had provided access from the boardwalk as well as beach facilities, such as showers. The city, whether it admitted it or not, was running a swimming area at the 29th Street beach, and had a duty to warn swimmers of the possible dangers.

Nine years have passed since Israel Poleyeff and Frederica Breaux lost their spouses, and a settlement from Miami Beach seems likely. Lifeguards are now posted at the 29th Street beach, and the city's website provides information on rip currents. Two more Poleyeff grandchildren have been born, one named for Eugenie. And Zachary Breaux's album, the one that put him on the Billboard chart, is still for sale. The last song on the CD is called "I Love This Life."

From Reader's Digest - July 2006

Beach Warning Flag Program

The safety and enjoyment of Florida's public beaches are affected by changes in tide and surf conditions. To minimize the risks of drowning or serious injury, the Florida Coastal Management Program worked with the Florida Beach Patrol Chiefs Association , the United States Lifesaving Association (USLA), and the International Life Saving Federation to develop a uniform warning flag program for use by Florida's beachfront communities.

Why does Florida need a uniform warning flag system?

Many residents and visitors travel to different parts of the state to enjoy Florida's wonderful public beaches, and many beach communities post warning flags. Differences in flag colors, sizes and symbols from place-to-place can confuse beach goers, thereby decreasing the effectiveness of efforts to improve public safety. The Florida Legislature decided that a uniform flag system would provide the best measure of safety and, in 2005, amended Section 380.276, F.S., to require that all public beaches displaying warning flags use only the flags developed for the state's warning program.

How does it work?

Florida's beach warning flag program uses flags in four colors accompanied by interpretive signs along the beach to explain the meaning of each color. To the extent funds are available, warning flags and interpretive signs are provided free of charge to local governments that provide public beach access. The communities that receive the free warning flags and interpretive signs are responsible for the installation, proper use, and maintenance of the flags and signs.

Are flags used to warn of the presence of rip currents?

The beach flags provide general warnings about overall surf conditions and do not specifically advise the public of the presence of rip currents. However increasing awareness of natural conditions which pose a significant risk at the beach, such as rip currents, is a critical element to improve public safety. Therefore in addition to this warning system, the FCMP also distributes rip current educational signs to local governments and public parks in the state of Florida free of charge. Since 2004 FCMP has distributed these comprehensive national signs that were developed through the combined efforts of the National Oceanic and Atmospheric Administration's National Weather Service (NWS) and SeaGrant, and the USLA. To further your understanding on the dynamics and dangers of rip currents, FCMP encourages you to consult the professional advice provided by the NWS and the USLA.

How many signs are available?

Local governments can request any number of warning flags and interpretive signs needed to place flags and a sign at each public beach access location identified by the local government. Each year, flags and signs will be provided by the Florida Coastal Management Program until the funds reserved for the program have been expended.

What are the dimensions of the flags and signs?

Each flag measure 29.25”H. x 39”W. The signs are 30” x 36”.

Specifications for Beach Warning Flags and Signs

http://www.dep.state.fl.us/cmp/programs/flags.htm

Description of the flags

On 8 June 2005 the governor of Florida amended a 2002 state law to mandate adherence to the state beach warning flag program on all public beaches where a warning program is utilized. According to the Department of Environmental Protection press release at www.dep.state.fl.us/secretary/news/2005/06/0608_04.htm

"Three years ago, at the request of the Florida Legislature, DEP began developing uniform safety flags and notification signs for life-guarded beaches along Florida?s coast. HB 1395 expands the existing program to more beaches, allowing use of the warning flag system on non-life-guarded beaches. In addition, the amended law eliminates confusion for beachgoers, standardizing beach flags state-wide by requiring consistency with those issued by DEP.

The uniform flags and signs, which use the colors adopted by the International Lifesaving Federation, are available to beach communities free of charge through DEP's Coastal Management Program. Flag warnings and colors are:

Green: Low hazard, calm conditions, exercise caution.

Yellow: Medium hazard, moderate surf and/or currents.

Red: High hazard, high surf and/or strong currents.

Red over Red [i.e., two red flags]: Water closed to the public.

Purple: Dangerous marine life."

The lower red flag in the "red-over-red" illustration shows a no swimming logo in white.

The flags provided by the DEP are 29.25 inches by 39 inches (about 75 x 100 cm).

The flags flying are indicators of the swimming conditions. The yellow flag means that there are moderate surf conditions. Not too rough but not smooth either. But the purple flag is ominous and means that there are sea pests present in the water, it can mean jellyfish, sea lice or the dreaded man-of-war. So we did not test the waters. There are several colored flags that they can fly to inform us of the conditions. Here is a link to our Ocean Rescue website that gives current updates on the conditions. There is a neat color image for the different flags. One can log on before heading to the beach and find out if it is a good swimming day at the beach, or just a good day to be on the beach. http://ci.ftlaud.fl.us/oceanrescue/index.asp

In the first photo you can see how close the water is to the road. We have had a lot of beach erosion so the beaches have really lost a lot of depth.

The Beach Service of South Padre Island, LLC is a full service beach rental company serving the South Padre Island, Texas, US area. Our services include umbrella and chair rentals, watersports including Waverunner/jetski, jet boat rides, kayaks and banana boat rides; wedding and special event rentals; medical mobility (Beach Wheelchairs); and baby furniture.

Call our beach service reservation line at 956-761-5622 for more information or email us at TBS@thebeachservice.com

If you would like to inquire about a service or make a reservation. You can use our easy form to contact us.

Related Article

You Be the Judge: The Case of the Crazed Canine

A friend's vicious dog sinks his teeth into 10-year-old Brian. It's a slam-dunk lawsuit. Or is it?

By Robin Gerber

A Terrifying Dog Attack

If anyone ever needed to find ten-year-old Brian Yuzon, a good bet was to check down the street at Jeff Blackburn's house. Brian often hung out with his pal Jeff, even though he was afraid of Jeff's two family dogs. He was particularly frightened of Kemo, a Rottweiler-pit bull mix. In fact, whenever Brian went to visit Jeff, the Blackburns locked Kemo in a room.

Illustrated By Christoph NiemannBrian had no reason to think Kemo wasn't safely inside when, on a spring day in 2001, he and a couple of other friends in Long Beach, California, went to Jeff's home after school. The boys headed into the Blackburns' backyard and waited as Jeff, whose parents weren't home, went inside to use the bathroom. When Jeff came out through the back door, Brian was horrified to see Kemo running outside, barking wildly. Jeff yelled for Brian to freeze, but the boy was already racing toward the front gate. He didn't make it.

With bared teeth, Kemo lunged and caught Brian's arm in his powerful jaws. Kemo clamped down again and again as Brian screamed hysterically. The other children tried to pull off the attacking dog, while a neighbor called for help. By the time paramedics arrived, the skin on Brian's upper arm and elbow was shredded and hanging. His physical injuries took nearly three hours of surgery to repair, leaving Brian with multiple scars and a deep fear of dogs.

Deeply upset, and facing medical bills that quickly climbed into the thousands, the Yuzon family brought a lawsuit against the Blackburns -- only to discover that they had no money in the bank. So, after learning that the Blackburns were renting their house from a man named Gerald Collins, the Yuzons reasoned that he, too, was responsible for Brian's injuries. The Yuzons assumed Collins had to have known that he was allowing a vicious animal on his property, because Kemo had escaped several times and frightened the neighbors.

And Tracy Blackburn, Kemo's owner, testified that whenever Collins visited the property, she would greet her landlord on the front porch. While they talked, Kemo would bark and lunge at the door. She also claimed that Collins once asked her to "pin the dogs up" before an insurance agent was to inspect the backyard. Why would Collins do that, the Yuzons wondered, if he didn't know there was more than one dog or that one dog was fierce? Didn't the owner have a duty to protect outsiders from any known dangers at his rental house?

Gerald Collins had a very different story. He acknowledged that the Blackburns' lease allowed them to keep a dog, but at the time he had agreed to this lease, the Blackburns' only dog was a blind springer spaniel. Collins also testified that he was not only unaware of any other dog on the property, but that he had never seen or heard a dog at all when he showed up at the door of the rental house. Contrary to the Yuzons' contention, Collins asserted that he had never heard from the neighbors about Kemo's escapes or seen the dog running wild, and the Blackburns never told him of any problems with Kemo. He didn't know about the danger, Collins said, so how could he be liable for the damage the dog caused?

Is Collins responsible for Brian's injuries? You be the judge! Then read on to see if the court actually ruled the way you did.

The Verdict

This case went before a state court of appeals in Los Angeles, which held that, to be liable, Collins had to have prior "actual knowledge" that Kemo was both being kept at his rental and that he was a vicious dog. Tracy Blackburn's testimony convinced the court that Collins was aware of a dog on the property, but it didn't prove he knew about Kemo or any vicious dog. "Pushing, barking, and jumping at the screen door," the court found, "would not have given Collins actual notice of Kemo's vicious propensities."

There was also no proof that Collins knew Kemo had scared any neighbors. No one, it turns out, had ever mentioned Kemo to Collins. It also didn't matter to the court whether or not Collins had asked that dogs be confined when the insurance inspector came. Even if he had, that wouldn't prove Collins thought the dog would attack, since the landlord had no knowledge of any other attacks by Kemo. The kinds of behaviors described in the testimony were "normal dog behaviors," the court said, and not alarming enough to prove that Collins knew that Kemo was dangerous. Finally, landlords aren't obligated to inspect their property for a dangerous animal. The verdict: Without proof Collins knew about this particular dog, he cannot be held liable.

Landlord and tenant responsibility for dog attacks varies by state. To be safe, tenants should obtain written permission to keep a dog, confine and muzzle potentially dangerous dogs, and get renters insurance to cover liability. Landlords should have insurance as well. Collins's insurance spared him costly legal bills. Landlords can require that tenants have insurance too.

Ultimately, Kemo was put to sleep, and the Blackburns moved. Four years after the attack, Brian still needs surgery to repair scars, and his fear of dogs has not diminished. He even told his mom that when he grows up, he would get a dog only if its teeth were removed so it can't hurt anyone.

From Reader's Digest - January 2006