may 9, 1975
Mr. eoa, a. rlster
P. O. box 4f7
fMswfDille, Plorieda 315
Bhi mWM'g 1 imm e to MtLability in the Okiuwrha
Cthai of Lsake stonration Ireeot
I swseive a oepy of a I-rai- dateS April 8e, 3197
fti Jay jban to yo, .onalise the above prosat.
I ar aneliag herewith coiese of resareh we, letter
to the POPUatie Cantrol Autherity aad an OOr of the
fPll tisi Caotoel Autbrity.
It to -m, tf what X have bard about the above
ii ,taIt it Is a vofer qoIlity pel$f. Unde thoes
Soln, -w rmet erS nn ttlni- desM water
toe aiellTy ifS i i- -t ve f p con-a
itlak, it wdm bhe th edsest pasraes ar1 the e~b t
ao* an.d i M4A s At e a ai tams to Atet orter sb talar
to *he oW es r s ae )p oeka.
TRoms vayr truey,
Myroan 6. GQibbes
April 28, 1975
L ~ ~ MEMORANDUM f\
TO: DONALD R. FEASTER, EXECUTIVE DIRECTOR -S
FROM: JAY T. AHERN, STAFF ATTORNEY) !
RE: SWFWMD's Exposure to Liability in the Oklawaha
Chain of Lakes Restoration Project
An answer to the question as to the liability of the District for the
adverse results caused by the Oklawaha Lakes Restoration Project requires
consideration of a number of things.
Initially, the District lost the defense of sovereign immunity to tort
claims on January 1, 1975. This means the District and Basins are sub-
jected to suits for damage claims for injury or loss of property, personal
injury or death caused by the negligent or wrongful act or omission
committed while acting within the scope of the office or employment sub-
ject to the limits of this act. The limits of the act provide the District
shall not be obligated to pay a judgment by any one person which exceeds
the sum of $50,000 or any judgment or portions thereof which when totalled
with all other claims or judgments paid arising out of the same incident
. or occurrence exceeds the sum of $100,000. However, a judgment or judg-
ments in excess of these amounts shall be reported to the Legislature
and be paid in whole or part only by further act of the legislature
Section 768.28, Florida Statutes.
Thus, the District would be subject to liability for its negligence.
Negligence is the failure to use that degree of care which a reasonably
careful person would use under like circumstances. Negligence may consist
either in doing something that a reasonably careful person would not do
under like circumstances or in failing to do something that a reasonably
careful person would do under like circumstances. This has been the
guide followed by the Florida courts and is set forth in a case entitled
City Cab Company of Orlando, Inc. v Green 308 So 2d 540 (Fla. App. 1975).
The application of the law to the lake restoration chain in the Oklawaha
Basin results in the District being subject for the loss of property,
personal injury or life proximately caused by the negligence of District
but subject to the limits set forth in Section 768.28 F.S. Thus, I am
advised some of the effects of the lake drawdown is lowering the water
level in the aquifer of the surrounding area and causing wells to go dry.
Also, this could cause damages to any business or industry that depends
on the lake waters as its principal source for livelihood. There is also
a possibility of upsetting the ecosystem or cause sinkholes. All the
potential problems should be investigated and the reasonable measures to
be undertaken to prevent their occurrence should be considered to avoid
O" the District being accused of being negligent.
o 1 4
- cc: Myron G. Gibbons, Esquire
April 28, 1975
You may inquire on how t6 protect the District. The method of protection
used will depend on whether the District is active or inactive party in
the project. In active position the District must make a thorough study
of all the potential hazards that would result from the project and the
measures employed to prevent them where possible. In the inactive position,
~ the District should require an agreement from the party or parties con-
ducting the project to save and hold harmless the District and Basin from
all claims, suits, judgment and damages arising out of the project.