Cheney v. Dade County

• Citation: 353 So.2d 623
• Decision Date: 20 December 1977
• Docket Number: No. 76-1655,76-1655
• Parties: William Walden CHENEY and Travelers Insurance Company, Appellants, v. DADE COUNTY, Appellee.
• Court: Florida District Court of Appeals

Page 623

353 So.2d 623

William Walden CHENEY and Travelers Insurance Company, Appellants, v. DADE COUNTY, Appellee.

No. 76-1655.

District Court of Appeal of Florida, Third District.

Dec. 20, 1977.

High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellants.

Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.

Before PEARSON, NATHAN and HUBBART, JJ.

PEARSON, Judge.

The controlling question presented by this appeal is whether an individual may recover from a County for the County's negligent failure properly to maintain a traffic control device at a street intersection. The question requires the application of Section 768.28, Florida Statutes (1975), to the facts of this case. Section 768.28 is, in pertinent portion, as follows:

"768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitation; exclusions.

"(1) In accordance with section 13, Art. X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

"(2) As used in this act, 'state agencies or subdivisions' include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.

"(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000.00, or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,000.00. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000.00 or $100,000.00, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the legislature, but may be paid in part or in whole only by further act of the legislature."

The question arose in the following manner. An action was brought by Julia Ramy against the appellant for damages allegedly resulting from an intersection collision which occurred on March 14, 1975. Appellant filed a third party complaint against the appellee alleging that the County had negligently maintained a traffic light at the intersection in question, and that this negligence was the sole cause of the accident. Appellant, alleging it was only passively negligent, then sought indemnity from the appellee.

Appellee moved to dismiss the complaint on the following grounds:

1. The doctrine of sovereign immunity precludes recovery against the County under the facts alleged.

2. Appellant failed to allege legal knowledge of the malfunctioning traffic light.

3. Appellant failed to allege how sovereign immunity had been waived.

4. Appellant failed to allege that statutory notice had been perfected.

Upon that motion, the trial court dismissed the third party complaint with prejudice.

Appellant concedes that the complaint was deficient in certain respects. Appellant should properly have alleged that the statutory notice provisions had been complied with. There should also have been an allegation that the County knew or should have known of the malfunction in sufficient time to correct it and failed to do so. Moreover, presumably, there should have been allegations of the method and means by which appellee had waived sovereign immunity. Appellant urges only that it was error to dismiss the cross-complaint with prejudice because the complaint had no inherent defect that was not amendable.

Prior to the effective date of the statute quoted, ¹ the courts of this state in determining the liability of the State or a political subdivision thereof have followed the rule that in order for there to be a duty upon the political subdivision, the facts must be such that the duty alleged is something more than the duty owed to the public generally. In Modlin v. City of Miami Beach, 201 So.2d 70, 74 (Fla.1967), the Supreme Court of Florida laid down the rule as follows:

"The Hargrove ² holding was to the effect that henceforth municipal corporations would be liable for the torts of their officers and employees on the principle of respondeat superior. Since it does not appear that the respondent city is being charged with any negligence other than that of the building inspector, it follows that we must now inquire whether the inspector would have been liable in tort in the circumstances of this case."

"It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. 23 Fla.Jur., 'Negligence,' Sec. 10. However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally."

"We believe there are also strong arguments on grounds of public policy for adhering to the rule under discussion. After all, only public officers are typically placed in the position of owing duty of care to the public generally. Moreover, we do not perceive that the rule applied here would have disturbed any of the subsequent cases holding municipalities liable under the rule of the Hargrove decision. We do not have any difficulty in placing a duty of care on a municipality that undertakes the manual operation of a railroad crossing signal toward a motorist attempting to negotiate that crossing, Hewitt v. Venable, Fla.App.1959, 109 So.2d 185, or in placing on police officers a duty not to deprive those with whom they come in contact of their constitutional rights of privacy, integrity of person, and so forth, Thompson v. City of Jacksonville, Fla.App.1961, 130 So.2d 105; Simpson v. City of Miami, Fla.App.1963, 155 So.2d 829, cert. discharged, 172 So.2d 435; Fisher v. City of Miami, Fla.App.1964, 160 So.2d 57; City of Hialeah v. Hutchins, Fla.App.1964, 166 So.2d 607; Shipp v. City of Miami, Fla.App.1963, 172 So.2d 618; Evanoff v. City of St. Petersburg, Fla.App.1966, 186 So.2d 68."

The appellate courts have followed this rationale in holding that a governmental authority is not liable to an individual for the maintenance of traffic control devices. See City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969); Mathews v. City of Tampa, 227 So.2d 211 (Fla. 2d DCA 1969); Clifton v. City of Ft. Pierce, 319 So.2d 195 (Fla. 4th DCA 1975); and Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975).

Appellant's argument is that this rationale is no longer valid because of the enactment of Section 768.28, Florida Statutes (1975), quoted in part above. This court rejected that argument in Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977), ³ but without full discussion.

The main thrust of appellant's argument is that the courts of Florida, in applying this State's waiver of immunity statute, should follow the interpretation ⁴ that the federal courts have given to the Federal Tort Claims Act, 28 U.S.C. § 2674. It is urged that inasmuch as the federal courts have held that the Federal Tort Claims Act substantially does away with the traditional concepts of sovereign immunity and the Florida statute is, in some parts, phrased in the same terms as the Federal Act, therefore, we should adopt the federal decisions as governing.

We do not follow this reasoning because the Federal Act is quite different in form, purpose and application to factual situations from the language and purpose of Section 768.28, Florida Statutes (1975). We recognize the rule that when a state adopts a legislative act of a sister state, it will ordinarily be held to have adopted the judicial interpretation of that act made by the sister state prior to the second state's adoption. See 73 Am.Jur.2d Statutes §§ 333, 334 (1974); and Gray v. Standard Dredging Co., 109 Fla. 87, 111 Fla. 149, 149 So. 733 (1933). An examination of the Federal Tort Claims Act shows that it contains numerous exceptions not a part of Section 768.28, Florida Statutes (1975). The fields of operation of the two acts are substantially different in that the sphere of activity of the federal government is essentially different from that of the government of the State of Florida. There is, of course, a tremendous overlapping of powers exercised but the fields of operation are substantially different. We think that it is proper for this court to apply and follow the precedents of this state.

The Supreme Court of Florida has held that statutes purporting to waive sovereign immunity are to be strictly construed and that such waiver should not be implied. See Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). See also Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Seaside Properties, Inc. v. State Road...