Avallone v. Board of County Com'rs of Citrus County

• Decision Date: 25 April 1985
• Docket Number: No. 83-691,83-691
• Citation: 467 So.2d 826,10 Fla. L. Weekly 1031
• Parties: 10 Fla. L. Weekly 1031, 10 Fla. L. Weekly 478 Gloria Jean AVALLONE, Appellant/Cross-appellee, v. BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, et al., Appellees/Cross- appellants.
• Court: Florida District Court of Appeals

Page 826

467 So.2d 826

10 Fla. L. Weekly 1031, 10 Fla. L. Weekly 478

Gloria Jean AVALLONE, Appellant/Cross-appellee, v. BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, et al., Appellees/Cross- appellants.

No. 83-691.

District Court of Appeal of Florida,

Fifth District.

April 25, 1985.

Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Nance, Cacciatore & Sisserson, Miami, for appellant/cross-appellee.

Jean A. Bice and Daniel A. Amat of Pattillo & McKeever, P.A., Ocala, for appellees/cross-appellants.

ON MOTION FOR CLARIFICATION OR REHEARING

ORFINGER, Judge.

We withdraw the opinion originally issued in this case and substitute the following in its place.

Plaintiff's appeal is from an adverse summary judgment in this personal injury suit. We conclude that the trial court reached the correct result, so we affirm.

Plaintiff was injured when she was pushed from a dock at a public park and swimming area owned and operated by Citrus County. The principal basis of her claim against the county was the failure of the county to provide supervisory personnel at the park despite its knowledge that children frequenting the park would roughhouse and play on the dock and push visitors to the dock into the water. The trial court found that:

1. That the Board's decision whether or not to provide lifeguards or other supervisory personnel for the Blue Bird Springs facility was a discretionary, planning-level decision for which, under the doctrine of sovereign immunity, it is immune from tort liability.

2. That the Board's purchase of insurance pursuant to Fla.Stat. § 286.28 constituted a waiver of sovereign immunity to the extent of the Board's liability insurance policy limits.

The trial court then found that the plaintiff's injury was caused by an independent intervening efficient cause, so that any act or omission of the Board of County Commissioners did not constitute the proximate cause of plaintiff's injuries, and for this reason entered the summary judgment in favor of defendants. In the light of our determination that the county is immune from suit, we need not address the correctness of this determination.

The appellants do not contest the trial court's finding that the decision of the Board to provide or not provide supervisory personnel at the park was a "discretionary, planning-level decision." ¹ In its cross-appeal, the Board and its insurance carrier contend that absolute immunity attaches for planning-level activities of government, and that the immunity for such planning-level activity is not altered or affected by the fact that the Board has purchased liability insurance. We are now compelled to the conclusion that the Board is correct.

In Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982) the court noted that:

[O]ur decision in Commercial Carrier [Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) ] ... distinguished between that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute. In the latter, absolute immunity attaches to "policymaking, planning, or judgmental governmental functions." 371 So.2d at 1020. The underlying premise for this immunity is that it cannot be tortious conduct for government to govern. Our decision recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine. [Emphasis added].

Id. at 1075.

Section 286.28, Florida...