DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

BARBARA FELICIANO, as personal representative of the

Estate of Sthella Lopez Feliciano, a deceased minor,

Appellant,

v.

RIVERTREE LANDINGS APARTMENTS, LLC, a Florida 

Limited Liability Company, and FIRST COMMUNITIES MANAGEMENT, 

INC., a Florida Corporation,

Appellees.

No. 2D2023-0561

May 10, 2024

Appeal from the Circuit Court for Hillsborough County; Paul L. Huey, 

Judge.

James C. Blecke of The Haggard Law Firm, P.A., Coral Gables, for 

Appellant.

David L. Luck, Ross F. Berlin, and Janice Lopez of Lewis Brisbois 

Bisgaard & Smith LLP, Coral Gables; and Kathryn L. Ender of the Law 

Firm of Dinsmore & Shohl, LLP, Miami (substituted as counsel of record),

for Appellees.

SLEET, Chief Judge.
2

Barbara Feliciano, as personal representative of the Estate of 

Sthella Feliciano, challenges the trial court's final summary judgment 

entered in favor of Rivertree Landings Apartments, LLC, and First 

Communities Management, Inc., in Feliciano's wrongful death action

against them. Feliciano resided with her two children in an apartment 

complex owned by Rivertree and managed by First Communities. Her

lawsuit against the two companies (collectively referred to herein as 

Rivertree) stems from the death of her six-year-old autistic daughter, who 

drowned in the portion of the Hillsborough River that abuts the 

apartment complex property. Because Feliciano has not identified any 

duty that Rivertree possessed and breached and because no issues of 

material fact remain, Rivertree was entitled to summary judgment as a 

matter of law. Accordingly, we affirm.

The Rivertree complex is situated on property adjacent to the 

Hillsborough River in Tampa. The complex contains fencing in certain 

areas, including around a pool that is several yards away from the river. 

The residents are free to walk unobstructed from the pool sidewalk down 

the grassy slope to the river. A retaining wall that is level with the 

ground runs the length of the portion of the riverbank that abuts the 

Rivertree property. Two signs that read "caution" are posted on the 

grassy area.

Feliciano and her children lived in a first-floor apartment. Her

daughter required constant supervision, which was provided by Feliciano

and her sixteen-year-old son. On the day of the incident, Feliciano's 

daughter exited their apartment unnoticed. Rivertree surveillance video 

depicts the child walking up and down the sidewalk that fronts the 

parking lot and eventually going around the back of the complex's 

leasing office toward the Hillsborough River. In the video, the child can 
3

be seen walking to the river's edge, but she then is obscured by a tree; 

ripples can then be seen in the water, followed by splashing. There is no 

clear evidence definitively establishing how the child entered the river—

whether it was the result of an accidental slip or a purposeful entry—

because a tree obscures the view.

1 

Feliciano filed a two-count complaint, bringing one count of 

negligence against each of the defendants. In the complaint, Feliciano 

alleged that both defendants owed to residents of Rivertree "a duty of 

reasonable care to provide reasonably safe premises, including the 

common area of the Premises." The allegations as to both defendants 

were the same. Feliciano alleged that the defendants each breached their 

individual duty "by committing one or more of the following acts or 

omissions": 

A. Allowing a dangerous and defective condition to be 

created or to remain on its premises; to wit: an area of the 

Hillsborough River that was not sectioned off from the rest of 

the Premises by an adequate, non-defective [sic], operational 

barrier;

B. Failing to maintain, and thereby neglecting, a barrier 

that was voluntarily put in place sectioning off the 

Hillsborough River from the rest of the Premises; 

C. Permitting the voluntarily-installed barrier to remain 

in a state of disrepair and/or non-functioning [sic] and failing 

1 The video shows the side of the leasing office farthest from where 

the child was standing, and the area near the riverbank is somewhat 

difficult to see. Although the trial court made a specific finding in its 

order granting summary judgment that "[w]hen the minor child reached 

the edge of the river, she stopped and then stepped or jumped in," our de 

novo review of the video leads us to conclude that it does not definitively 

show how the child entered the river. See State v. Vazquez, 295 So. 3d 

373, 378 (Fla. 2d DCA 2020) ("[I]nsofar as a ruling is based on a video or 

audio recording, the trial court is in no better position to evaluate such 

evidence than the appellate court." (citing Almeida v. State, 737 So. 2d 

520, 524 n.9 (Fla. 1999))). 
4

to repair the barrier, thereby creating an extremely dangerous 

condition;

D. Failing to warn Plaintiff . . . of these dangerous 

conditions when neither Plaintiff [n]or [her daughter] had 

prior knowledge of same.

After the parties conducted discovery, Rivertree moved for 

summary judgment, arguing that it was entitled to judgment as a matter 

of law. Rivertree maintained that based on Florida precedent, it had no 

duty to fence off access to the river along its property unless it could be 

established that something about the Hillsborough River at that location 

constituted a danger not normally found with similar bodies of water. In 

its motion, Rivertree acknowledged Feliciano's position that the area 

where the child went into the river was dangerous because

a. The steep slope down to the water was greater than 4:1;[2]

b. The shoreline was uneven;

c. The water was moving in the river . . . ;

d. There was a risk of alligators;

e. There was no fence preventing entrance to the water;

f. The bulkhead surrounding the shoreline was in disrepair 

and could cause tripping hazards;

g. [The child] was severely [a]utistic and drawn to water.

Rivertree did not dispute any of these facts but rather stated that 

even if any or all of these facts were true, case law establishes that "they 

are not unusual dangers not present in rivers in Florida."3 Accordingly, 

Rivertree maintained that Feliciano could not establish the first element 

of her negligence action as alleged in her complaint—that Rivertree owed

2 Feliciano's water safety expert testified at deposition that a "4:1 

slope" means that "you've got to go four feet horizontal before you can go 

one foot vertical . . . and that's the standard for retention and detention 

ponds in the State of Florida."

3 Because there is no evidence or allegation that an alligator 

attacked the child, whether the Hillsborough River presented a risk of 

alligators is not relevant or material in the instant case.
5

a duty to its tenants to create a barrier between its property and the 

Hillsborough River.

Feliciano filed a response to Rivertree's motion, disputing numerous 

factual issues and arguing that Rivertree was not entitled to summary 

judgment as a matter of law because under section 83.51(2)(a)3, Florida 

Statutes (2020), it owed its residents a duty to maintain the common 

areas of the apartment complex in a "clean and safe condition." She 

further alleged that the undisputed evidence established that the area 

behind the leasing office was "deadly, unsafe, and dangerous" in that it 

consisted of a "very steep, slippery hill which dropped into [forty-seven] 

inches of water directly into the Hillsborough River . . . and there was no 

fence or barrier at the water's edge to protect residents from falling into 

the water." She also maintained that there were "giant holes and erosion 

at the water's edge, making it extremely deadly and dangerous," and that 

"[i]t was clear from . . . photos that these holes did not appear overnight 

and that this area was not maintained and [was] neglected."

At the summary judgment hearing, Feliciano offered expert witness 

testimony establishing that the slope of the grassy area leading to the 

river was steep and dangerous and "was in excess of the 4 to 1 standard 

that's advocated," although the witness did not quantify the actual ratio 

of the slope. And he later clarified that such was the standard for 

artificial bodies of water. The expert also opined that the grassy area 

leading to the river should have been fenced off. Feliciano argued that a 

landowner has a common law duty to maintain its property in a 

reasonably safe condition and to warn of dangerous conditions and that 

a landlord has a similar statutory duty with respect to the complex's 

common areas.
6

Following the hearing, the trial court entered an order granting 

Rivertree's motion for summary judgment. The court noted that "[t]he 

focus of [Feliciano's] claim against Defendants is the allegation that 

Defendants breached a duty by failing to erect a fence or barrier 

separating the Rivertree Landings Apartments from the Hillsborough . . . 

River." The court concluded that there were no disputed issues of 

material fact and that any facts the parties did disagree about were not 

material to the ultimate issue of whether Rivertree had a duty that it had 

breached. The court further concluded that "based on the abundant 

case law supporting the . . . position that a property owner has no duty 

to erect a fence or barrier separating their property from a natural body 

of water," Rivertree was entitled to judgment as a matter of law. Finally, 

the court noted that the application of this body-of-water rule "is not 

dependent on the plaintiff's status" and that "[t]here is no distinction in 

the law regarding the status of the plaintiff as an invitee, trespasser, 

owner[,] or otherwise."

On appeal, Feliciano argues that the trial court erred in applying 

the body-of-water rule to absolve Rivertree of the duty it owes its tenants 

under section 83.51(2)(a)3. She maintains that under the statute, 

Rivertree owed a duty to her and her child—as tenant invitees to the 

property—to maintain the common area near the river in a safe 

condition. Finally, she argues that it was for the jury to decide whether 

Rivertree's failure to fence off this common area was a breach of that 

duty.

We review a trial court's granting of summary judgment de novo. 

Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 

(Fla. 2000); Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc., 235 

So. 3d 1010, 1012 (Fla. 2d DCA 2017). Pursuant to Florida Rule of Civil 
7

Procedure 1.510(a), the trial court should grant summary judgment only 

"if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law." 

Here, there are no disputed issues of material fact. Although the 

parties dispute some of the facts concerning how the child exited her

apartment, the resolution of those factual issues has no effect on 

whether Rivertree had a duty to separate its property from the river by 

fence or some other barrier. See Custom Design Expo, Inc. v. Synergy 

Rents, Inc., 327 So. 3d 427, 432 (Fla. 2d DCA 2021) ("To preclude 

summary judgment 'the "issue" must be one of material fact. Issues of 

nonmaterial facts are irrelevant to the summary judgment 

determination.' " (quoting Cont'l Concrete, Inc. v. Lakes at La Paz III Ltd. 

P'ship, 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000))).4 Accordingly, the 

question before this court is whether Rivertree is entitled to summary 

judgment as a matter of law. 

4 We recognize that the parties have a more serious factual dispute 

concerning how the child entered the river—if by accident or purposeful 

act. And the only evidence on that point, the surveillance video footage, 

is inconclusive as the child appears as a mere blurb of white that moves

behind a tree and the video does not depict the actual moment that she 

entered the river. We come to this conclusion after our own review of the 

video, sitting in no worse a vantage point than that of the trial court, see

Vazquez, 295 So. 3d at 378 (citing Almeida, 737 So. 2d at 524 n.9). 

However, under these circumstances, where all of Feliciano's allegations

of duty and breach are based on Rivertree's failure to fence off or put a 

barrier along the riverbank, whether the child entered the river by 

accident or on purpose once she reached the water's edge is immaterial. 

See Custom Design Expo, 327 So. 3d at 432 ("A material fact, for 

summary judgment purposes, is a fact that is essential to the resolution 

of the legal questions raised in the case." (quoting Cont'l Concrete, 758 

So. 2d at 1217)).
8

Florida's body-of-water rule controls the outcome of this case. That 

general rule is "supported by the decided weight of authority" and 

provides that owners of "bodies of water are not guilty of actionable 

negligence on account of drownings therein unless [the bodies of water]

are constructed so as to constitute a trap . . . or unless there is some 

unusual element of danger lurking about them not existent . . . 

generally" in similar bodies of water. Allen v. William P. McDonald Corp., 

42 So. 2d 706, 706 (Fla. 1949). This is true even where the drowning 

victim is tragically a child. See Saga Bay Prop. Owners Ass'n v. Askew, 

513 So. 2d 691, 693 (Fla. 3d DCA 1987) ("[T]here is no liability for a 

child's drowning in a body of water, natural or artificial, unless there is 

some unusual danger not generally existing in similar bodies of water or 

the water contains a dangerous condition constituting a trap."). Thus, 

absent an unusual, dangerous condition, "[a]n owner of a natural or 

artificial body of water has no duty to fence it." Id. And to the extent

that Feliciano's complaint alleged a duty to warn, a property owner has

"no duty to post guards or signs in areas not designated for swimming." 

Id.5

Therefore, the determination of a landowner's duty turns on 

whether the circumstances create some unusual element of danger 

"lurking about" the body of water that does not exist in similar bodies of 

water. Allen, 42 So. 2d at 706; Hendershot v. Kapok Tree Inn, Inc., 203 

So. 2d 628, 629 (Fla. 2d DCA 1967) ("[T]he critical issue is whether the 

5 The case law speaks in terms of the "owner" of the actual body of 

water. Rivertree obviously is not the owner of the Hillsborough River. 

But "[i]f the law is such for an owner of a body of water surely the law is 

at least the same for a nonowner" whose property abuts the body of 

water. See Scott v. Future Invs. of Mia., Inc., 559 So. 2d 726, 727 (Fla. 

4th DCA 1990).
9

garden and pond fall, under Florida case law, within the exception to the 

general rule: . . . [W]as there some unusual element of danger lurking 

about not existing in ponds generally?"); cf. Kinya v. Lifter, Inc., 489 So. 

2d 92, 94-95 (Fla. 3d DCA 1986).

6 And "[t]he existence of a legal duty is 

a question of law for the court and not for the jury." Scott v. Future Invs.

of Mia., Inc., 559 So. 2d 726, 727 (Fla. 4th DCA 1990); see also Chirillo v. 

Granicz, 199 So. 3d 246, 248 (Fla. 2016) ("The determination of duty, as 

an element of negligence, is a question of law . . . .").

Feliciano maintains that the conditions at issue here were unusual

and dangerous because the ground was uneven, the slope was steep, and 

no fence or other barrier separated land from water. In considering 

whether these conditions trigger the exception to the general body-ofwater rule, we first note that Florida courts have yet to apply this 

exception to natural bodies of water like this area of the Hillsborough 

River. In fact, the supreme court has expressly stated that the exception

"would not apply to natural ponds and lakes because they are 

approached on a slightgrade [sic] and the waters warn one of the 

6 Some cases refer to this exception as an "attractive nuisance" 

exception. See generally Hendershot, 203 So. 2d at 630 ("[I]n the instant 

case there was not alleged the presence of the unnatural, unusual 

element of danger of the type and nature that is necessary to invoke the 

attractive nuisance doctrine." (emphasis added)); Kinya, 489 So. 2d at 95 

("The lake was constructed in accordance with applicable local 

ordinances[,] and the 'slope' of the bank was not so different from natural 

bodies of water so as to render the lake an attractive nuisance." 

(emphasis added)). But the greater weight of the case law makes clear 

that although there may be cases where the danger lurking is also an 

attractive nuisance, there is no requirement that it meet the definition of 

such; the critical question is whether the danger is one that is unique to 

the particular body of water and does not occur in similar bodies of 

water. See generally Allen, 42 So. 2d at 706; Saga Bay, 513 So. 2d at

693. 
10

danger." Allen, 42 So. 2d at 707 (concluding, however, that the exception 

applied where "white [sloping] sand banks along the edge of an artificial 

pond or lake [would] entice children to play on them[,] creat[ing] an 

unusual element of danger" because "[t]here is nothing more enticing to a 

child or a gang of children than a sand pile"); see also Hendershot, 203 

So. 2d at 630 (pointing out that in Allen and similar cases wherein the 

courts invoked the exception to the rule, "there was present a man-made 

condition which involved an unusual element of extreme danger"

(emphasis added)). 

Here, the exception to the body-of-water rule does not apply 

because the record does not demonstrate any evidence of a trap or 

unusual element of danger associated with the riverbank adjacent to the 

Rivertree complex that does not exist in similar rivers or on similar

riverbanks. See Hendershot, 203 So. 2d at 630 ("[I]n the instant case 

there was not alleged the presence of the unnatural, unusual element of 

danger of the type and nature that is necessary to invoke the [exception 

to the body-of water rule]." (emphasis added)); Kinya, 489 So. 2d at 95

(affirming final judgment in favor of landowner based upon the body-ofwater rule where "the 'slope' of the bank was not so different from 

natural bodies of water so as to render the lake" unusually dangerous); 

Navarro v. Country Vill. Homeowners' Ass'n, 654 So. 2d 167, 168 (Fla. 3d 

DCA 1995) (holding that "deep water drop-off" in lake "owned, operated, 

and maintained" by homeowners' association did "not constitute a 

concealed dangerous condition" that would trigger the exception to the 

body-of-water rule as "sharp change in depth is characteristic of lakes"

(quoting Saga Bay, 513 So. 2d at 693-94)); Kaweblum ex rel. Kaweblum

v. Thornhill Ests. Homeowners Ass'n, 801 So. 2d 1015, 1018 (Fla. 4th 

DCA 2001) (holding that the slopes on each side of a canal did not 
11

"transform this ordinary body of water into a trap or hidden danger");

Scott, 559 So. 2d at 727 (concluding that body-of-water rule applied 

where child drowned in water control canal abutting apartment complex 

property and there was no evidence of an "unusual danger not generally 

existing in similar bodies of water" (quoting Saga Bay, 513 So. 2d at 

693)); cf. Longmore v. Saga Bay Prop. Owners Ass'n, 868 So. 2d 1268,

1268, 1270 (Fla. 3d DCA 2004) (concluding that "precipitous drop-off 

('from less than [sixty-nine] inches (the height of decedent) to a depth in 

excess of [forty] feet')" in residential lake did not confer upon 

homeowners' association a duty to warn and provide lifeguards because 

it was "characteristic of conditions existing in natural lakes and, 

therefore, not a dangerous condition constituting a trap"). Here, the 

conditions Feliciano complains of—the slope leading down to the river, 

the river current, the uneven ground along the river—do not constitute 

traps or dangerous conditions that do not occur in similar bodies of 

water throughout the state. 

Feliciano is correct that section 83.51(2)(a)3 requires "the landlord 

of a dwelling unit other than a single-family home or duplex [to], at all 

times during the tenancy, make reasonable provisions for . . . [t]he clean 

and safe condition of common areas." But pursuant to case law, those 

"reasonable provisions" need only include fencing off a body of water if 

the particular circumstances create an unusual element of danger not 

presented by similar bodies of water. As we have stated, that is not the 

case here. Accordingly, under these circumstances, the landlord's duty 

to "make reasonable provisions for . . . [t]he clean and safe condition" 

cannot be stretched to create liability on the part of Rivertree for this 

tragedy. 
12

Furthermore, we find no merit to Feliciano's argument that the 

body-of-water rule should not be applied to child invitees. Rather, we 

agree with the trial court that the case law does not make a distinction 

between invitees and trespassers or between adults and children when 

applying the body-of-water rule. To the contrary, Florida courts have 

applied the rule without distinction as to the status of the plaintiff. See

Saga Bay, 513 So. 2d 691 (child resident of residential neighborhood); 

Kinya, 489 So. 2d 92 (child resident of apartment complex); Navarro, 654 

So. 2d 167 (adult resident of residential neighborhood); Longmore, 868 

So. 2d 1268 (invitee guest of a resident); Scott, 559 So. 2d 726 (invitee 

nephew of resident). Unfortunately, "drowning is a risk inherent in any 

body of water . . . [but] [t]he owner of a body of water is not liable" based 

solely on a plaintiff's failure or inherent inability to heed "the open and 

obvious danger of the water." Saga Bay, 513 So. 2d at 692. 

We also note that Feliciano's reliance on the Fifth District's opinion 

in Walt Disney World Co. v. Goode, 501 So. 2d 622 (Fla. 5th DCA 1986), 

is misplaced because that case is distinguishable from the instant case. 

In Goode, a four-year-old boy drowned in a man-made canal that 

surrounded Cinderella's castle in the Magic Kingdom and that was 

designed and constructed by Disney. Id. at 623. In the ensuing

wrongful death action, the Fifth District employed "the ordinary rules of 

negligence as they apply to a business invitee at a place of public 

amusement." Id. But the determination that Disney owed a duty to its 

business invitees was based on Disney's status as "a place of public 

amusement." Id.

Places of amusement where large crowds congregate are 

required to keep their premises in reasonably safe condition 

commensurate with the business conducted. . . . One 

operating a place of amusement . . . where others are invited 
13

is charged with a continuous duty to look after the safety of 

his patrons. . . .

. . . [R]easonable care as applied to a [place of public 

amusement] requires a higher degree of diligence than it does 

when applied to a store, bank or such like place of business.

Id. at 623-24 (quoting Wells v. Palm Beach Kennel Club, 35 So. 2d 720, 

721 (Fla. 1948)).

Neither case law nor section 83.51 imposes a similar duty on 

landlords. The principles that require Disney to employ a higher degree 

of diligence to its patrons simply do not apply to Rivertree in the instant 

case, and they cannot be made to apply because the majority in Goode

made a passing reference to the body-of-water rule in response to its

dissenting colleague.

The sad and tragic nature of this case is not lost on this court, but 

there is no unusual element of danger present where the Hillsborough 

River is adjacent to the Rivertree complex that does not exist in other 

rivers throughout Florida. Accordingly, the general body-of-water rule 

applies to this case, and we must affirm.

Affirmed.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.