Allen v. Port Everglades Authority

• Decision Date: 20 December 1989
• Docket Number: No. 88-0785,88-0785
• Parties: 15 Fla. L. Weekly D15 William ALLEN, Appellant, v. PORT EVERGLADES AUTHORITY, a Public Corporation, City of Hollywood (Florida), a Municipal Corporation and CSX Transportation, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1341

553 So.2d 1341

15 Fla. L. Weekly D15

William ALLEN, Appellant, v. PORT EVERGLADES AUTHORITY, a Public Corporation, City of Hollywood (Florida), a Municipal Corporation and CSX Transportation, Inc., Appellees.

No. 88-0785.

District Court of Appeal of Florida,

Fourth District.

Dec. 20, 1989.

John Beranek of Klein and Beranek, P.A., West Palm Beach, and Krupnick, Campbell, Malone & Roselli, Fort Lauderdale, for appellant.

Rosemary Wilder and Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, for appellee, City of Hollywood.

WARNER, Judge.

This appeal raises the issue of a government's duty to warn of a dangerous condition created by it.

Appellant was riding his motorcycle through Port Everglades along Eisenhower Boulevard late one night. After passing over two sets of railroad tracks which were in disrepair, the street widened, and there appeared to be a left turn lane without any painted lines indicating the end of appellant's lane and the beginning of the turn lane. Appellant began looking at and following the curb for his "line". Almost immediately his left knee hit a concrete light pole in the median approximately six inches from the curb. The injuries occurring from the accident resulted in the loss of appellant's leg.

Appellant filed suit for negligence against Port Everglades Authority, CSX Transportation, and the City of Hollywood. The City of Hollywood moved for summary judgment maintaining that, although the city owned the light pole in question and had maintenance responsibilities, the installation of the pole was a planning level function giving the city sovereign immunity from suit. In response, and in addition to numerous depositions filed, appellant filed an affidavit from an engineer who had extensive dealings with the placement of light poles, including the light poles in Port Everglades. In the affidavit the engineer testified that he was involved in hearings held by the City of Hollywood at which the light poles in Port Everglades were discussed. The engineer's affidavit stated that at those hearings the city knew or was made aware of the danger posed by the light poles in the median strip. Finally, the engineer testified that he had personally witnessed numerous incidents prior to appellant's accident where light poles in the median of Eisenhower Boulevard had been knocked down by motor vehicles.

The trial court relied on Miller v. City of Fort Lauderdale, 508 So.2d 1328 (Fla. 4th DCA 1987) and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982) in granting summary judgment. In Miller, this court held that the location of street lighting is a planning level function and therefore is within the sovereign immunity of the city. However, in Miller the plaintiff did not claim that liability of the city was based upon a failure to warn of a hidden trap or dangerous condition which was not readily apparent. In the instant case, the appellant alleged in his pleadings that the city's negligent acts consisted of design or maintenance of an unreasonably dangerous defect or failure to warn of the dangerous condition, but the complaint does not allege that the dangerous condition was not readily apparent or constituted a hidden trap. Nevertheless, through the affidavits filed by appellant as well as the Memorandum in Opposition to Summary Judgment, the appellant argued that the city should be liable because of its failure to warn of a dangerous condition not readily apparent. ¹

In Bailey Drainage Dist. v. Stark, 526 So.2d 678 (Fla.1988), the supreme court held that planning level decisions of governmental bodies may incur liability from which the government is not immune if a hidden trap is created. Quoting City of St. Petersburg v. Collom, 419 So.2d 1082, 1085 (Fla.1982) the court stated:

[O]nce a governmental entity creates a known dangerous condition which may not be readily apparent to one who could be injured by the condition, and the governmental entity has knowledge of the presence of people likely to be injured, then the governmental entity must take steps to avert the danger or properly warn persons who may be injured by that danger. The failure of government to act in this type of circumstance is, in our view, a failure at the operational level.

Bailey at 680. The Bailey court reversed a summary judgment in an intersection collision case, because material questions of fact still existed as to whether the intersection constituted a trap and whether the responsible governmental entities had knowledge of the condition but failed to provide a warning of the danger.

Similarly, in this case material questions of fact remain as to whether the light pole located six inches from the curb constituted a hidden trap. The facts presented in depositions showed that the railroad tracks immediately in front of the light pole were in disrepair and caused appellant's motorcycle to go out of control; that a short distance after the railroad track a left turn lane began without lines painted to separate the curb from the street and the through lanes; that the lighting was inadequate; and that the location of the light pole only six inches from the edge of the street was not apparent at night to the oncoming traveler. Furthermore, the engineer's affidavit, outlined above, was sufficient to create a material question of fact as to the city's knowledge of the danger posed by the light poles in...