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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13626
________________________
D.C. Docket No. 6:18-cv-01539-GAP-GJK
ROBIN FISHER,
LAURIE FISHER,
his spouse,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 27, 2021)
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
NEWSOM, Circuit Judge:
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This appeal requires us to interpret a Florida statute that protects owners of
outdoor recreation areas against ordinary premises liability in tort. As relevant
here, the statute provides that if a landowner opens its land to the public for
outdoor recreational purposes, it incurs “no duty of care to keep that area safe for
entry or use by others,” no “duty of care toward a person who goes on the area,”
and no “duty . . . to give warning to persons entering . . . that area of any hazardous
conditions.” Fla. Stat. § 375.251(2)(a). We must decide whether the statute
applies even where, as here, the injured entrant went onto the land for reasons
related to business and, thus, in common-law lingo, was a “business-visitor
invitee.” We hold that the statute, which speaks in broad and unqualified terms,
means exactly what it says—that an owner incurs no ordinary duty of care to, and
no duty to warn, any entrant, regardless of his common-law status or reason for
entry.
I
The federal government operates Patrick Air Force Base on a large parcel
of land in Brevard County, Florida. That land encompasses Tables Beach, which
fronts the Atlantic Ocean and which the government has opened to the public.
Robin and Laurie Fisher, a Florida couple, frequented Tables Beach because Mrs.
Fisher worked as a civilian employee at the base.
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The government maintained a public shower at Tables Beach with a
wooden floor. According to the Fishers, whose allegations we accept as true for
the purposes of this appeal, the government negligently allowed an algae-like film
to accumulate on the shower floor and failed to provide any warning that the film
had caused the floor to become slippery. In 2015, while at Tables Beach, Mr.
Fisher stepped into the shower, slipped, and fell down hard. The fall caused
multiple severe injuries that eventually necessitated, among other things, two
shoulder surgeries.
The Fishers sued the United States in federal court under the Federal Tort
Claims Act. Mr. Fisher alleged that the government had negligently allowed an
unreasonable accumulation of water to build up in the shower, negligently failed to
treat the shower floor with a non-slip finish, and failed to warn him of the resulting
hazardous condition. Mrs. Fisher sued for loss of consortium.
The government moved to dismiss the Fishers’ action. It argued that the
United States was immune from suit because the FTCA, which waives sovereign
immunity in specified instances, authorizes only those tort actions that can be
brought against private persons under state law. And, the government contended,
under Florida law—specifically, what we’ll call its “recreational-use statute”—if a
landowner “provides the public with an area for outdoor recreational purposes,” it
is protected against ordinary premises liability. Fla. Stat. § 375.251. Because the
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Fishers’ claims arose from a fall on its public beach, the government insisted that
their claims fell outside the statute’s terms, and thus outside the FTCA’s waiver of
sovereign immunity.
In response, the Fishers argued that Florida’s recreational-use statute
doesn’t protect landowners against suits by so-called “business visitor” invitees, a
legal term of art that refers to those invited onto land for reasons related to
business. Because Mrs. Fisher worked at Patrick Air Force Base, the Fishers
asserted that they were business-visitor invitees and, therefore, that the statute
didn’t affect the government’s duty of care or duty to warn as to them.1
The district court granted the motion to dismiss, holding that the
recreational-use statute eliminated the government’s ordinary duty of care and duty
to warn as to the Fishers. The Fishers appealed.
II
A
In order for us to exercise jurisdiction over a damages action against the
United States in its sovereign capacity, the plaintiff must show that the government
1
The Fishers separately argued that because the recreational-use statute’s protection applies only
to landowners who make “no charge . . . for entry to or use of the area” and derive “no other
revenue . . . from patronage of the area,” § 375.251(2)(c), the government wasn’t protected
because it derived revenue from rental equipment used at Tables Beach. Because the Fishers
haven’t renewed that argument on appeal, we won’t address it. See Sapuppo v. Allstate
Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014).
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consented to the suit. See Zelaya v. United States,
781 F.3d 1315, 1321–23 (11th
Cir. 2015).2 In the Federal Tort Claims Act, the government has consented to be
sued under “circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the [allegedly
tortious] act or omission occurred.” 28 U.S.C. § 1346(b). Accordingly, we may
exercise jurisdiction over this suit if—and only if—it could be brought against a
private person under Florida tort law.
The government argues that the Fishers’ suit couldn’t be brought against a
private landowner under Florida law—and, accordingly, that we can’t exercise
jurisdiction over it here—because the state’s recreational-use statute would bar it.
That statute broadly protects owners of public outdoor recreation areas against
ordinary premises liability in tort. Its operative provision states that—
An owner or lessee who provides the public with an area for outdoor
recreational purposes owes no duty of care to keep that area safe for
entry or use by others, or to give warning to persons entering or going
on that area of any hazardous conditions, structures, or activities on
the area. An owner or lessee who provides the public with an area for
outdoor recreational purposes:
1. Is not presumed to extend any assurance that the area is safe for
any purpose;
2. Does not incur any duty of care toward a person who goes on
the area; or
2
We review this question of law de novo. See Zelaya v. United States,
781 F.3d 1315, 1321
(11th Cir. 2015).
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3. Is not liable or responsible for any injury to persons or property
caused by the act or omission of a person who goes on the area.
Fla. Stat. § 375.251(2)(a).
By its terms, § 375.251(2)(a) bars the Fishers’ suit. First, the government is
an “owner.” Second, it provides the public access to Tables Beach, “an area for
outdoor recreational purposes.” And finally, the Fishers are “persons” and
“others” within the meaning of the statute.3 Accordingly, by dint of
§ 375.251(2)(a)’s clear text, the government owed Mr. Fisher no “duty of care” or
“duty . . . to give [him] warning” of a hazardous condition. Because the Fishers’
suit seeks damages for the government’s breach of its ordinary duty of care and
duty to warn, the statute squarely forecloses it.
B
In an effort to overcome to the recreational-use statute’s plain meaning, the
Fishers direct our attention to an adjacent statutory subsection. Codified
immediately after § 375.251(2), § 375.251(3) states that an owner who enters into
a written agreement with the state regarding the use of an area for outdoor
recreational purposes owes no duty of care or duty to warn as to users of that area.
As the Fishers emphasize, § 375.251(3) then goes on to say, expressly, that “[t]his
3
The Fishers suggested at oral argument that the word “others” meant those invited onto the land
for reasons unrelated to business. We think that term is more fairly read to refer to anyone other
than the owner, especially because the statute appears to use it interchangeably with the word
“persons.”
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subsection applies to all persons going on the area that is subject to the agreement,
including invitees, licensees, and trespassers.” Fla. Stat. § 375.251(3)(a)–(b)
(emphasis added). Aside from the fact that subsection (3) involves state
contracting, whereas subsection (2) does not, the two provisions contain similar
language to effectuate similar protections.
In light of the proximity of, and similarity between, the two provisions, the
Fishers invoke the proposition that where the legislature “includes particular
language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that [the legislature] acts intentionally and purposely in the
disparate inclusion or exclusion.” Gozlon-Peretz v. United States,
498 U.S. 395,
404 (1991). Because subsection (3) expressly references “invitees, licensees, and
trespassers,” but subsection (2) does not, the Fishers reason (1) that we should
interpret the latter to exclude at least some category of entrants and (2) that the
most plausible candidate for exclusion is the “business visitor,” a subcategory of
“invitee.”
Because the Fishers’ argument depends on some background principles of
common-law premises liability, we provide a brief primer: The common law
assigns landowners varying duties of care to entrants depending on the terms of
entry. If an individual enters without permission, he is owed the lowest duty of
care as a “trespasser.” See Post v. Lunney,
261 So. 2d 146, 147 (Fla. 1972). If he
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enters with permission, he is owed an intermediate duty of care as a “licensee.”
Id.
And if he enters pursuant to an invitation, he is owed the highest duty of care as an
“invitee.”
Id. Importantly here, some courts further divide the “invitee” category
into two subcategories: “public invitees” and “business visitors.” See
id. at 148. If
someone enters pursuant to an invitation for a purpose for which the land was held
open to the public, he is a “public invitee.” If he enters pursuant to an invitation
for a purpose connected with business dealings with the owner, he is a “business
visitor.” See
id. Although Florida law isn’t crystal clear on the subject,
landowners at least arguably owe business-visitor invitees a slightly higher
standard of care than they owe public invitees.4
With those common-law basics in mind, let’s return to the Fishers’
argument, which proceeds as follows:
(1) Sections 375.251(2) and 375.251(3) are largely identical.
(2) Section 375.251(3), by its terms, applies to “invitees, licensees, and
trespassers.”
4
On the one hand, a Florida-practice treatise says that owners must warn public invitees only
against latent perils that should be known to the owner, but that owners must affirmatively
inspect their land for business-visitor invitees to ensure that the conditions are safe. See 41 Fla.
Jur. 2d Premises Liability §§ 19, 23. On the other hand, the Florida Supreme Court long ago
purported to “eliminate the distinction between commercial (business or public) visitors and
social guests upon the premises, applying to [all] the single standard of reasonable care under the
circumstances.” Wood v. Camp,
284 So. 2d 691, 695 (Fla. 1973) (emphases added). We needn’t
decide in this case whether any daylight remains between the duties owed to public and business-
visitor invitees under Florida law.
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(3) Therefore, § 375.251(2), which lacks similar language, must not apply
to all three categories—invitees, licensees, and trespassers.
(4) Therefore, § 375.251(2) doesn’t apply to business-visitor invitees, but
only to trespassers, licensees, and public invitees.
(5) The Fishers were business-visitor invitees, so § 375.251(2) doesn’t
apply to them.
We cannot accept the Fishers’ argument, which we find begins to fray at step (3)
and then completely unravels at step (4).
As for step (3), we think the Fishers make too much of the discrepancy
between the two provisions. To be sure, Florida courts recognize the “generally
accepted canon of construction” that “when the legislature includes a provision in
one section of a statute but excludes it in another, courts will deem the difference
intentional and will assign meaning to the omission.” Bellsouth Telecomm. v.
Meeks,
863 So. 2d 287, 291 (Fla. 2003). But they also recognize the foundational
principle that courts should not “resort to rules of statutory construction” to
counteract statutory text that is “clear and unambiguous.” Daniels v. Florida Dept.
of Health,
898 So. 2d 61, 64 (Fla. 2005). After all, legislatures occasionally have
some reason for including clarifying language in one place but not another—and
sometimes just draft statutes inelegantly.
Here, subsection (2)—which expressly refers to “others” and applies to all
“persons”—is sufficiently “clear and unambiguous” that reliance on an inference
from silence would be inappropriate. It’s at the very least possible that the
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legislature added the clarifying language to § 375.251(3) in order to deal with the
particular subject that it covers and to quell any doubt that entities contracting with
the state would be protected. Short story: We will not invoke the “negative
pregnant” principle as an “interpretive trump card”—especially where, as here, it
“suggests results strangely at odds with other textual pointers.” Field v. Mans,
516
U.S. 59, 75, 67 (1995).
Moreover, and in any event, the Fishers’ argument fails at step (4). Even if
we were to assume (at step (3)) that the Florida legislature deliberately excluded
from § 375.251(2) the “inclu[sion of] invitees, licensees, and trespassers,” that
doesn’t justify (or really even suggest) the distinction that the Fishers draw
between public invitees and business-visitor invitees. Neither of those
subcategories of invitees is mentioned by name anywhere in § 375.251(3), and the
Fishers haven’t directed us to any cases arising under the recreational-use statute
that distinguish between the two. So even if we were inclined to apply the
inclusion-exclusion rule here, the upshot would be that § 375.251(2) excludes one
of the three categories mentioned by name in § 375.251(3)—“invitees, licensees,
[or] trespassers”—not that it excludes some otherwise unmentioned subcategory of
invitees.5
5
We are aware, of course, of the general interpretive principle that statutes that alter settled
common-law rules must do so clearly. See Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 318 (2012). But for the reasons we have explained,
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Accordingly, even assuming step (5)’s claim that the Fishers were business-
visitor invitees—which itself is far from clear—we can’t accept their invitation to
read an exemption into § 375.251(2)(a)’s broad and unqualified language. 6
III
The plain language of Florida’s recreational-use statute protects a
qualifying landowner against a suit alleging a breach of its ordinary duty of care
and duty to warn as to all entrants, regardless of their reason for entry.
Accordingly, the government has not waived its sovereign immunity under the
FTCA, so we cannot exercise jurisdiction over this action against it. We AFFIRM
the district court’s dismissal.
§ 375.251(2)(a) is clear, so we can’t “distort[]” it simply to preserve common-law rules of
landowner liability. See
id. Furthermore, Florida law provides another, countervailing rule of
interpretation—that we should “liberally construe[]” the recreational-use statute’s provisions to
“accomplish the purposes thereof.” Fla. Stat. § 375.061. And the relevant statutorily-defined
“purpose[]” here is “to encourage persons to make land, water areas, and park areas available to
the public for outdoor recreational purposes by limiting their liability to persons using these
areas.”
Id. § 375.251(1).
6
At oral argument, the Fishers urged us to consider the adverse consequences that would result
from interpreting the recreational-use statute to apply without exemption to all “persons.” They
suggested, for instance, that under a plain-meaning interpretation, an entity that made its land
available to the public wouldn’t be liable even if it negligently injured one of its own employees
or a contractor whom it had hired to perform some service on the land. Maybe. We
acknowledge that interpreting § 375.251(2) in accordance with its plain meaning may well
protect owners from tort liability even against its employees and contractors. But we expect that
other legal mechanisms—such as workers’ compensation law for employees and contract law for
contractors—would provide relief to persons in such circumstances so as to avoid any truly
inequitable results. And of course, even if the statute as written did entail unfortunate
consequences, it would still be our job to apply it according to its terms—and the legislature’s
job to re-write it if it saw fit.
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