Trianon Park Condominium Ass'n, Inc. v. City of Hialeah

• Decision Date: 04 April 1985
• Docket Number: No. 63115,63115
• Citation: 10 Fla. L. Weekly 210,468 So.2d 912
• Parties: , 10 Fla. L. Weekly 210 TRIANON PARK CONDOMINIUM ASSOCIATION, INC., Petitioner, v. CITY OF HIALEAH, Respondent.
• Court: Florida Supreme Court

Page 912

468 So.2d 912

53 USLW 2522, 10 Fla. L. Weekly 210

TRIANON PARK CONDOMINIUM ASSOCIATION, INC., Petitioner, v. CITY OF HIALEAH, Respondent.

No. 63115.

Supreme Court of Florida.

April 4, 1985.

Rehearing Denied May 22, 1985.

Alan E. Tannenbaum and Alan S. Becker of Becker, Poliakoff and Streitfeld, Fort Lauderdale, for petitioner.

Chesterfield Smith, Julian Clarkson, Marty Steinberg and Andrea Simonton of Holland and Knight, Miami, for respondent.

James R. Wolf, Gen. Counsel, and Harry Morrison, Jr., Asst. Gen. Counsel, Tallahassee, amicus curiae for Florida League of Cities, Inc.

M.A. Galbraith, Jr., City Atty., Boca Raton, amicus curiae for City of Boca Raton.

Robert A. Ginsburg, County Atty., and Thomas Goldstein, Asst. County Atty., Miami, amicus curiae for Dade County.

Jack R. Rice, Jr., Miami, amicus curiae for The Dade County League Of Cities, Inc.

OVERTON, Justice.

This is a petition to review Trianon Park Condominium Association v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982), in which the district court held the City of Hialeah liable to condominium owners for damage to condominium units caused by severe roof leakage and other building defects on the basis that the city building inspectors were negligent in their inspections during the construction of the condominiums. The district court certified the following question:

Whether under section 768.28, Florida Statutes (1975), as construed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), a municipality retains its sovereign immunity from a suit predicating liability solely upon the allegedly negligent inspection of a building, where that municipality played no part in the actual construction of the building.

Id. at 914-15. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We restate the certified question as follows:

Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity.

We answer the restated question in the negative and quash the decision of the district court of appeal.

In summary, we first emphasize that section 768.28, Florida Statutes (1975), which waived sovereign immunity, created no new causes of action, but merely eliminated the immunity which prevented recovery for existing common law torts committed by the government. We hold that there has never been a common law duty to individual citizens for the enforcement of police power functions. Further, we find that no statutory duty for the benefit of individual citizens was created by the city's adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code. To hold a governmental entity liable for carrying out this type of enforcement activity would make the taxpayers of the enforcing governmental entity insurers of all building construction within the jurisdiction of the entity. We conclude that such a result was never intended by either the legislature or the city in enacting the building code provisions. Our decision, as explained below, is consistent with the decisions of the majority of states and the recent decision of the United States Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

The record reflects that Trianon Park Condominium Association, consisting of 65 unit-owners, brought suit against the developer for breach of warranty, negligence, and strict liability, and against the City of Hialeah for its negligent performance in inspecting the condominium building and certifying it for occupancy. Trianon asserted that there was improper construction of the roof membrane, flashing, and drainage system on the main roofs, and other flaws in the construction which resulted in leaks and water damage to 49 of the 65 condominium units. The action against the developer was settled and the jury returned a verdict against the city in the amount of $291,000. The award was reduced by the amount of the settlement with the developer and was limited to the maximum amount provided under section 768.28(5). On appeal, the district court affirmed and held that the enforcement of a building code "is a purely ministerial action which does not rise to the status of basic policy evaluation since the majority of the inspectors' acts involve simple measurement and enforcement of the building code as written rather than the exercise of discretion and expertise," and that "[o]nce the City undertook to inspect, review and certify construction, it was obligated to do so reasonably and responsibly in accordance with acceptable standards of care." 423 So.2d at 913. The court concluded that "the City's inspection and certification of buildings within its borders is an operational level activity, for which it may be subject to tort liability under section 768.28, Florida Statutes." Id.

Trianon, although it prevailed in the district court, petitioned this Court for review of the question certified by the district court of appeal. In support of the district court of appeal decision, Trianon contends that building inspections performed by a governmental entity under an adopted building code are "operational-level" activities. Trianon argues that the operational-planning analysis developed in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and adopted by this Court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), is the sole means to determine liability; that we clearly stated in Commercial Carrier that the operational-planning test has replaced the special duty/general duty analysis contained in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); and that the second and third elements of the Evangelical Brethren test have not been satisfied in this case because building inspections themselves do not change the direction or policy of the building inspection program of the city but are purely ministerial in nature. Trianon acknowledges, however, that law enforcement and fire suppression activities should not subject the city to tort liability. It distinguishes building inspections from those types of activities on the ground that the legislature has imposed broad regulatory requirements on municipalities in the area of building code enforcement under chapter 553, Florida Statutes (1979), and asserts that, unlike law enforcement or fire suppression, there are mandatory duties to be followed during building inspections.

Trianon argues that we should follow the four states that have determined that government building inspections can be a basis for governmental liability, and that we should adopt the views expressed in Adams v. State, 555 P.2d 235 (Alaska 1976); Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Stewart v. Schmieder, 386 So.2d 1351 (La.1980); and Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). In addition, while acknowledging that decisions interpreting the Federal Tort Claims Act may not be applicable because of certain exemptions contained in the Act, Trianon asserts that decisions by the federal courts in Caban v. United States, 671 F.2d 1230 (2d Cir.1982); Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981); Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); and Scott v. Eastern Air Lines, Inc., 399 F.2d 14 (3d Cir.1967), cert. denied, 393 U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968), are consistent with a finding of liability for the governmental entity in making such inspections.

In response, the City of Hialeah contends that since there is no analogous cause of action against private parties for the negligent enforcement of building codes, there can be no liability for the city. The city argues that the waiver of sovereign immunity did not create any duty and that no such duty was created by either the statute establishing the building code or the common law. The city reasons that this Court, in Commercial Carrier, recognized that an underlying cause of action was required before a governmental entity could be held liable. It distinguishes between governmental liability for damages caused by the operation or maintenance of capital improvements owned and controlled by the government and governmental liability in those circumstances where the government is regulating activities and enforcing compliance with the law through its police power function.

The city and the other governmental entities that have appeared in this action point out that the majority of federal jurisdictions which have addressed the issue have held that federal regulatory enforcement activities, such as those performed by the Environmental Protection Agency, the United States Food and Drug Administration, and the Federal Aviation Authority, do not give rise to actionable tort duties owed by the United States to individual citizens. See Sellfors v. United States, 697 F.2d 1362 (11th Cir.1983), cert. denied, 468 U.S. 1204, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984); Raymer v. United States, 660 F.2d 1136 (6th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558 (8th Cir.1979); Zabala Clemente v. United States, 567 F.2d 1140 (1st Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Baer v. United States, 511 F.Supp. 94 (N.D.Ohio 1980), aff'd, 703 F.2d 558 (6th Cir.1982); Carroll v. United States, 488 F.Supp. 757 (D.Idaho 1980); Mercer v. United States, 460 F.Supp. 329 (S.D.Ohio 1978). The governmental entities also direct our attention to the...