Bailey Drainage Dist. v. Stark

• Decision Date: 28 April 1988
• Docket Number: Nos. 70543,70691,s. 70543
• Citation: 13 Fla. L. Weekly 291,526 So.2d 678
• Parties: 13 Fla. L. Weekly 291 BAILEY DRAINAGE DISTRICT, Petitioner, v. Evelyn STARK, etc., Respondent. BROWARD COUNTY, Petitioner, v. Evelyn STARK, etc., Respondent.
• Court: Florida Supreme Court

Page 678

526 So.2d 678

13 Fla. L. Weekly 291

BAILEY DRAINAGE DISTRICT, Petitioner, v. Evelyn STARK, etc., Respondent.

BROWARD COUNTY, Petitioner, v. Evelyn STARK, etc., Respondent.

Nos. 70543, 70691.

Supreme Court of Florida.

April 28, 1988.

Rehearings Denied July 11, 1988.

Harry S. Raleigh, Jr. and Bryan Duke of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, and Susan F. Delegal, Gen. Counsel, Alexander Cocalis, Chief Trial Counsel and Barbara A. Hall, Asst. Gen. Counsel, Broward County, Fort Lauderdale, for petitioners.

Michael D. Stewart of Michael D. Stewart, P.A., Fort Lauderdale, for respondent.

Richard A. Barnett of Barnett & Hammer, P.A., Hollywood, amicus curiae for The Academy of Florida Trial Lawyers.

William J. Roberts and Michael Egan of Roberts, Egan & Routa, P.A., Tallahassee, amicus curiae for Florida Ass'n of Counties.

PER CURIAM.

This cause is before the Court on petitions to review Stark v. Bailey Drainage District, 505 So.2d 566 (Fla. 4th DCA 1987), in which the Fourth District Court of Appeal certified a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

On August 20, 1984, Stephen Stark was traveling east on Southwest 52nd Court. He was killed when his vehicle was struck by a truck traveling north on Southwest 178th Avenue as he passed through the intersection. The intersection had no traffic control devices. The intersection is located within the boundaries of the Bailey Drainage District in rural unincorporated Broward County, both of which are political subdivisions of the State of Florida.

Evelyn Stark, as personal representative of the estate of Stephen Stark, filed suit against the petitioners, Broward County and the Bailey Drainage District, alleging that the decedent's view of the intersection was impeded by plant growth on the sides of the road which created a danger not apparent to eastbound motorists on Southwest 52nd Court and that both entities failed to provide proper signs or other traffic control devices to warn of the danger. The complaint also alleges that the governmental entities had previously kept the plant growth on the sides of the road trimmed and that both had knowledge of the dangerous condition. The trial court granted the petitioners' motions for summary judgment on the ground that Stark's claim was barred by the doctrine of sovereign immunity because the dangerous condition complained of, if in fact the condition was dangerous, was not created by either Broward County or the Bailey Drainage District. On appeal, the Fourth District Court of Appeal reversed on the basis of Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), holding that "there is proof that a known dangerous condition was maintained by [petitioners] without proper warnings, thereby precluding summary judgment in the [petitioners'] favor." 505 So.2d at 567. The Fourth District certified the following question:

DOES SOVEREIGN IMMUNITY BAR AN ACTION AGAINST A GOVERNMENTAL ENTITY FOR FAILING TO WARN MOTORISTS OF AN INTERSECTION KNOWN BY THE GOVERNMENT TO BE DANGEROUS BY REASON OF THE LACK OF TRAFFIC CONTROL DEVICES AND OBSTRUCTIONS TO VISIBILITY LOCATED ON THE RIGHT-OF-WAY?

In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), this Court established that discretionary, judgmental, planning-level decisions were immune from suit, but that operational-level decisions were not immune. We held, in applying these principles to the facts in Commercial Carrier, that the failure to properly maintain an existing traffic control device was an operational decision and suit could be filed against the governmental entity.

Later in Neilson, we were again faced with interpreting the "operational-level" as distinguished from "judgmental, planning-level" functions of government as discussed in Commercial Carrier. Specifically, Neilson involved the issue of whether the initial failure to install traffic control devices at an intersection may constitute an omission or negligent act which subjects governmental entities to liability. We answered the question in the negative, holding that decisions relating to the installation of appropriate traffic control methods and devices and the decision to build or change a road, together with all the determinations inherent in such decisions, are of the judgmental, planning-level type. 419 So.2d at 1077. ¹

We have also recognized, however, that even though "defects inherent in the overall plan for an improvement, as approved by a governmental entity, are not matters that in and of themselves subject the entity to liability," liability may arise from a planning-level decision when that decision creates a hidden trap. City of St. Petersburg v. Collom, 419 So.2d 1082, 1085 (Fla.1982). As we stated in Collom:

[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.

Id. at 1086 (citation and footnote omitted). ² Likewise, we said in Payne v. Broward County, 461 So.2d 63, 66 (Fla.1984):

The decision whether to install a traffic control light at an intersection is a planning decision clothed with immunity, but that decision carries with it the concomitant duty to warn until such time as the light is operational if the absence of such traffic light creates a trap or creates a known danger not readily apparent to the persons in or about the intersection.[ ³

We note that the failure to regulate traffic at an intersection by posting signs or other means does not in and of itself give rise to an actionable breach of duty. Neilson. Likewise, the existence of an obstructed view of traffic at an intersection does not in and of itself give rise to liability. We hold, however, and in response to the certified question, sovereign immunity does not bar an action against a governmental entity for rendering an intersection dangerous by reason of obstructions to visibility if the danger is hidden or presents a trap and the governmental entity has knowledge of the danger but fails to warn motorists. Where a governmental entity knowingly maintains an intersection right-of-way which dangerously obstructs the vision of motorists using the street in a manner not readily apparent to motorists, it is under a duty to...