Slemp v. City of North Miami
| Decision Date | 01 June 1989 |
| Docket Number | No. 71549,71549 |
| Parties | 14 Fla. L. Weekly 264 Fletcher SLEMP and Dora Slemp, Petitioners, v. CITY OF NORTH MIAMI, Respondent. |
| Court | Florida Supreme Court |
Thomas F. Pepe of Pepe & Nemire, P.A., Coral Gables, for petitioners.
Thomas M. Pflaum and Pedro P. Echarte, Jr. of Simon, Schindler, Hurst & Sandberg, Miami, for respondent.
We have for review Slemp v. City of North Miami, 515 So.2d 353 (Fla. 3d DCA 1987), in which the district court certified its decision as passing upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We quash the decision of the district court.
This case presents the following issue: Can a city be held liable for flooding damages that result from the allegedly negligent maintenance of a storm sewer pump system it constructed? We hold that it can.
The City of North Miami installed a storm sewer pump system to counter periodic flooding. The Slemps' property was damaged as a result of flooding following a rainstorm and they sued the city, alleging in their complaint that the city had
failed to maintain, operate and/or control the said pumps so that they would work properly and drain off the excess waters so as not to cause flooding in the area....
....
... [and] failed to operate, control and/or manage the pumping stations so as to keep the streets and residential areas free from excess water and from flooding.
The trial court entered summary judgment for the city premised upon the theory that the city enjoyed sovereign immunity. The district court affirmed on rehearing en banc.
The district court recognized that had the Slemps alleged that the storm sewer system itself caused damage, such as by back-washing water into their home, then possible liability would have arisen under this Court's ruling in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985), since the city has a common law duty to maintain and operate the system so that it will not affirmatively cause property damage. The court pointed out that the Slemps had merely alleged that the city breached its duty to properly maintain the pumps "so as not to cause excess water to gather in the streets." Slemp, 515 So.2d at 355. According to the court, the city owed no statutory or common law duty of care to individual property owners to protect against flooding due to natural occurrences; consequently, the city was not liable.
The abiding test for determining whether a government entity has sovereign immunity for its tortious acts is the operational/planning formula set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Decisions relating to "certain policy-making, planning or judgmental governmental functions" are not subject to the legislature's waiver of sovereign immunity as expressed in section 768.28, Florida Statutes (1985). Commercial Carrier, 371 So.2d at 1020. Government entities are not immune from liability for their torts arising from operational functions. In such cases where immunity does not apply, traditional tort principles govern.
In the instant case, the city's alleged failure to maintain and operate its pumps properly is an operational level activity and is thus subject to traditional tort analysis. See, e.g., Commercial Carrier (failure to maintain traffic signal light and "STOP" signal on pavement are operational level activities). We agree with the well-reasoned dissent of Judge Nesbitt in the court below that the issue does not concern whether the city, in the abstract, had a duty to protect individual property owners from flooding due to natural causes. Once the city has undertaken to provide such protection, by building a storm sewer pump system, for example, it assumes the responsibility to do so with reasonable care. The city did install the pump system, and thereby assumed the duty to maintain and operate the system so that it would properly drain off expected excess water and prevent flooding. If the city negligently fails to properly maintain or operate the system, it can be held liable for damage caused by that failure.
The Slemp's complaint sufficiently alleged that it was the city's failure to properly maintain or operate the pumps that caused the damage to their property. The city, on the other hand, contends that extraordinary rainfall caused the damage, and that even properly operating pumps could not have prevented it. The question of the proximate cause of the damage is one of fact, and should have been submitted to a jury. Consequently, we quash the decision of the district court below and remand to the trial court.
It is so ordered.
I fully concur with Justice McDonald's dissenting opinion. The majority places on cities and counties a duty to insure private property owners from water damage when there is a government-maintained drainage system serving their property. It requires local governmental entities to pay damages even though the damage was less than it would have been had the drainage system not been there. Slemp made no allegation in his complaint that this damage would not have occurred if the drainage system had not been installed. The allegation is based, instead, on the claim that the city "failed to operate, control and/or manage the pumping station so as to keep the streets and residential areas free from the excess water and from flooding."
The fact that a drainage system does not take care of all the water should not mean that an adjacent property owner is entitled to damages. The property owner should be entitled to damages only when the drainage system caused the damage and that damage would not have occurred had the drainage system not been there. To say otherwise requires the taxpaying citizens of the local governmental entity, both property owners and non-property owners to pay for flood damage. I see no reason why the taxpayers of cities and counties should be insurers of individual property owners or developers in these circumstances. To hold these local governmental entities responsible for not operating a drainage system as efficiently as possible places an impossible fiscal burden on them.
This is bad policy without any legal justification. Unless the legislature addresses this issue, cities and counties will refuse to...
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