Broward County v. Payne

• Decision Date: 31 August 1983
• Docket Number: 80-2126 and 81-4,Nos. 80-1966,s. 80-1966
• Parties: BROWARD COUNTY, Appellant, v. James H. PAYNE, etc., et al., Appellees. James H. PAYNE, etc., et al., Appellants, v. CITY OF CORAL SPRINGS, Appellee. James H. PAYNE, etc., et al., Appellants, v. Steven WALLICE, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 719

437 So.2d 719

BROWARD COUNTY, Appellant, v. James H. PAYNE, etc., et al., Appellees.

James H. PAYNE, etc., et al., Appellants, v. CITY OF CORAL SPRINGS, Appellee.

James H. PAYNE, etc., et al., Appellants, v. Steven WALLICE, etc., et al., Appellees.

Nos. 80-1966, 80-2126 and 81-4.

District Court of Appeal of Florida,

Fourth District.

Aug. 31, 1983.

Rehearing Denied Oct. 7, 1983.

Harry A. Stewart, Gen. Counsel, and John Franklin Wade, Asst. Gen. Counsel, Fort Lauderdale, for Broward County.

Larry Klein, West Palm Beach, and Ronald E. Solomon, P.A., Fort Lauderdale, for appellee-School Bd. of Broward County.

Martin J. Sperry of Krathen & Sperry, P.A., and Nancy Little Hoffmann of Law Offices of Nancy Little Hoffmann, P.A., Fort Lauderdale, for Payne.

LETTS, Judge.

The principal question presented in these consolidated appeals is whether the failure to install a traffic signal at an intersection near a school, which failure allegedly contributed to the accident that killed a 17 year old student, constitutes a planning or an operational function of government.

At first blush it appears obvious that it was a planning function which granted absolute immunity, by reason of the recent Supreme Court decision in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). However, the case now before us, while superficially on all fours with Neilson, possesses an additional factual wrinkle. Apparently, the forces of government in the case at bar were in agreement that a traffic light was needed and indeed the decision to install one had been arrived at. Yet, over a two year period the actual installation had not been carried out.

As a consequence, the question before us, more narrowly stated, is: Would any delay between the decision to install the light and the actuality of installation extend the planning immunity cloak during the hiatus? We answer in the affirmative and reverse.

The fruition of plans to widen a road, build a school, repave a highway, condemn a house, hire more police, buy a fire engine, request Federal aid, widen a sidewalk, erect barriers, and yes, install a traffic light are more often than not delayed for years before completion because of shortage of funds or competent available personnel. Until a governmental plan is implemented, it continues as just that--a plan. A decision to four lane a highway may be shelved for as much as a decade awaiting public monies to actually achieve it. We cannot expect a government to rush out and install a traffic light the day after it is deemed prudent to do so by the appropriate planning department. To the obvious comment that this delay was not for only the day, but was for over 700 days, we can only declare ourselves unwilling to delineate any time table.

The above would conclude this opinion, but for a new conundrum visited on us, but a few days ago, by our superiors in Tallahassee. In Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983) the Supreme Court found the location of a school bus stop was a planning decision. However, it concluded with a secondary holding (tracking Collom, infra) that if a known...