United States District Court, M.D. Florida, Orlando Division
Gregory A. Presnell United States District Judge
Matter comes before the Court on the Government's Motion
to Dismiss (Doc. 11), the Plaintiffs' Response in
Opposition (Doc. 16), the Government's Reply (Doc. 18),
the Plaintiffs' Supplemental Response (Doc. 32), and the
Government's Supplemental Reply (Doc. 33).
instant suit arises out of an incident that occurred at a
beach access area known as “Tables Beach, ” a
facility maintained by the United States Air Force. Doc. 1
¶ 9. The Plaintiffs visited Tables Beach on or about
October 5, 2015. Id. ¶ 13. During the visit,
Plaintiff Robin Fisher slipped and fell in the shower,
sustaining “serious bodily injuries.”
Id. The Plaintiffs later filed the Complaint, and
the Government filed a Motion to Dismiss under Rule 12(b)(1)
of the Federal Rules of Civil Procedure. Initially, the Court
declined to rule on the instant Motion in order to give the
Plaintiffs the opportunity to conduct some jurisdictional
Motion to Dismiss
motions to dismiss under Federal Rule of Civil Procedure
12(b)(1) come in two forms. First, there are “facial
attacks, ” which “require the court merely to
look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction.” 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)). A court assessing a “facial
attack” on jurisdiction is to assume the allegations in
the complaint are true and not to look outside the pleadings
and attached exhibits. See Id. Second, there are
factual attacks, which challenge the factual basis asserted
for jurisdiction. Id. If a factual attack on
jurisdiction regards an issue reasonably distinct from the
merits, the court may weigh conflicting written and oral
evidence and decide for itself whether jurisdiction exists.
See, e.g. Menchaca v. Chrysler Credit Corp., 613
F.2d 507, 512-13 (5th Cir. 1980). If a Court treats a
12(b)(1) motion as a factual challenge, the plaintiff must be
given an opportunity for discovery. McElmurray v. Consol.
Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1247
(11th Cir. 2007); Williamson v. Tucker, 645 F.2d
404, 414 (5th Cir. 1981).
Federal Tort Claims Act
FTCA is a specific, congressional exception' to the
United States' sovereign immunity for tort claims, under
which the government may ‘be sued by certain parties
under certain circumstances for particular tortious acts
committed by employees of the government.'”
Turner ex rel. Turner v. United States, 514 F.3d
1194, 1200 (11th Cir. 2008) (quoting Suarez v. United
States, 22 F.3d 1064, 1065 (11th Cir. 1994)). “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.” Fernandez v. United
States, No. 18-10305, 2019 WL 1130355, at *1 (11th Cir.
Mar. 12, 2019) (citing 28 U.S.C. § 1346(b)(1)). The law
applicable to an FTCA claim is the law of the state where the
tortious act occurred. 28 U.S.C. 1346(b)(1); see also
Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir.
2015). All the events in the current case occurred in
Florida; thus, Florida law applies.
Government argues that the Court lacks subject matter
jurisdiction because the Florida Recreational Use statute,
codified at Section 375.251, immunizes it against liability
for the Plaintiffs' injuries. Doc. 11 at 1. Section
375.251 limits liability against those who make areas
available for public recreational use, subject to certain
limitations on commercial activity. See Fernandez v.
United States, No. 18-10305, 2019 WL 1130355, at *2-3
(11th Cir. Mar. 12, 2019). The Government has presented
evidence that the North Beach Picnic Area, where the outdoor
showers at issue are located, is free and open to the public.
There is no evidence that suggests that any commercial
activity was taking place in the North Beach Picnic Area at
the time of the incident. While the pavilion in the North
Beach Picnic Area was later rentable for a fee, there was no
fee for reserving it in October of 2015. Doc. 33-1 at 8.
There were no concessionaires operating at the North Beach
Picnic Area in October of 2015. Doc. 33-1 at 10.
Plaintiffs argue that beach equipment rentals, located about
a mile away from Tables Beach, constituted sufficient
commercial activity to render Section 375.251 inapplicable.
But if that were the case, the exception would swallow the
rule. Many beach equipment rentals, such as water bikes and
kayaks, are designed to be used for recreational travel in
the ocean. And the jurisdictional evidence shows that renters
were permitted to take the equipment anywhere in the world,
so long as they returned it.
Plaintiffs also argue that they should be classified as
invitees rather than members of the general public, removing
them from the scope of Section 375.251. However, the North
Beach Picnic Area and Tables Beach were free and open to the
public, so the Plaintiffs cannot be properly considered
the Government is immune from liability, and the Court lacks
subject matter ...