City of St. Petersburg v. Collom, s. 61016

• Decision Date: 14 September 1982
• Docket Number: 61017,Nos. 61016,s. 61016
• Citation: 419 So.2d 1082
• Parties: CITY OF ST. PETERSBURG, Florida, Petitioner, v. Bert H. COLLOM, etc., Respondent. CITY OF ST. PETERSBURG, Florida, Petitioner, v. Lula Mae MATHEWS, Respondent.
• Court: Florida Supreme Court

Page 1082

419 So.2d 1082

CITY OF ST. PETERSBURG, Florida, Petitioner, v. Bert H. COLLOM, etc., Respondent.

CITY OF ST. PETERSBURG, Florida, Petitioner, v. Lula Mae MATHEWS, Respondent.

Nos. 61016, 61017.

Supreme Court of Florida.

Sept. 14, 1982.

Michael S. Davis, City Atty., William N. Drake, Jr. and Kim E. Streeter, Asst. City Attys., St. Petersburg, for petitioner.

Donald Wm. Giffin, St. Petersburg, for Collom.

Gary E. Frazier of Akerson & Swisher, St. Petersburg, and Garold L. Morlan, Tampa, for Mathews.

Claude L. Mullis, Legal Counsel, Tallahassee, for Florida League of Cities, Inc., amicus curiae.

OVERTON, Justice.

These are petitions by the City of St. Petersburg to review two decisions of the Second District Court of Appeal reported as Mathews v. City of St. Petersburg, 400 So.2d 841 (Fla.2d DCA 1981), and Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA 1981). Both cases were heard in a consolidated oral argument with Department of Transportation v. Neilson; Hillsborough County v. Neilson; City of Tampa v. Neilson, 419 So.2d 1071 (Fla. 1982); and Ingham v. Department of Transportation, 419 So.2d 1081 (Fla. 1982). Each of these cases involves an interpretation of "operational-level" as distinguished from "judgmental, planning-level" functions of government as discussed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Conflict exists among the above-cited cases heard in the consolidated oral argument. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In the two cases decided here, we approve the results reached by the district court. We hold that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.

Part I

City of St. Petersburg v. Collom

Collom is a wrongful death action. In Collom, the complaint alleged that during a heavy rainstorm the plaintiff's wife and daughter were walking across private property and unknowingly stepped into a storm sewer drainage ditch located on a city drainage easement, and were sucked into a pipe and drowned. In his complaint, Collom alleged that the city failed to guard the opening to the storm sewer by failing to place screens, bars, or other protective devices over the opening of its pipe. Further, Collom alleged the city failed to warn of a hazardous condition so that human beings would not be dragged into the sewer during heavy rains and storms.

The trial judge granted the city a summary judgment, holding "that the plan and design of the drainage ditch and pipe ... to exclude the utilization of bars, grates, screens, fencing and/or other protective devices was a matter of discretional immunity" so that liability did not attach as a matter of law. The Second District Court of Appeal reversed, holding that "[i]mmunity of a government for negligently performing an act no longer exists," so that "once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense." 400 So.2d at 508. The district court rejected the city's argument that even though the project might be inherently dangerous the city could not be liable because it "planned" the system in that manner. The court held that "a blueprint is not a plan in the sense of the 'planning' that is discretionary, and once the 'planning' has been done, the plans that are then prepared can indeed give rise to liability." Id. at 509. Further, in addressing the issue of the availability of funds to the entity to build the project, the court held that a governmental entity could not "be free to adopt an expensive plan for alleviating a problem and then cut costs by eliminating the safety features." Id. The court held that "governments are expected to exercise [the] prudence and reason" required of individuals. Id.

The city seeks reversal of the district court's action, contending that the adoption of a drainage system plan entails judgmental, planning-level decisions on the part of both the governmental officials who design the system and the governmental entity which approves and funds the plan. According to the city, decisions concerning when and in what manner to build a drainage system should not be subject to second-guessing by a judge or jury.

Collom contends that the district court decision should be approved because once the city's decision-making process is complete, liability may attach to the manner in which such plans are implemented. Once the city had notice of the hazardous condition, Collom asserts, an operational-level function arose, requiring the city to remedy or give notice of the hazard, and its failure to do so establishes liability.

City of St. Petersburg v. Mathews

In Mathews, a twenty-month-old child, who had been playing in a public park, fell into a drainage creek and drowned. In the parent's wrongful death action against the city, the complaint alleged:

7. The water, into which the deceased fell, is a concrete encasement of Booker Creek with vertical sides and sidewalks to the north and south of the concrete edges. On top of the edges, at a distance of approximately ten (10) feet apart, are holes installed in such a manner they may support a barrier or fence. At or about Sixth Street and Roser Park, on the north side of Booker Creek, there is a park or playground which is frequented by children. Nowhere along the edge of or along side of the Booker Creek encasement is there a barrier, fence or other guard against children falling into or playing within the encasement. The waterway is so constructed as to prevent and seriously impede rescue of any child who might fall in. There is no method or manner in which to escape from the waterway should escape be made necessary or should rescue be attempted.

8. The Defendant, City of St. Petersburg, is negligent in causing to exist and be maintained at Sixth Street and Roser Park Drive an attractive nuisance in that the existance [sic] of the concrete waterway, constructed so as to be a trap, is in such close proximity to and part of a playground and sidewalk as to present a dangerous condition. The Defendant knew or should have known by the exercise of due care and caution, that children are likely to and frequently to play in close proximity to the waterway. The condition, as a trap, is one the Defendant knew or should have known and that it realized or should have realized, involved an unreasonable risk of death or serious bodily injury to such children and that children, because of their immature age, discretion and experience, do not discover the condition or realize the risk involved in intermeddling in a concrete waterway or coming within the area made dangerous by it, and would be lured to and tempted to run and play in and near the Booker Creek encasement.

A motion to dismiss Mathews' complaint, filed by the city, was granted by the trial judge, who held that:

[I]t is not necessary to discuss the question of attractive nuisance raised by the Motion, because whether or not to "incase" Booker Creek with vertical concrete sides and whether or not to install a barrier or fence along the sides of Booker Creek are policy decisions of the CITY. These items are "discretionarily policy matters, planning or judgment governmental features, and as such cannot be the subject of traditional tort liabilities." A. L. Lewis, etc., v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3 DCA 1979); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

The Second District Court of Appeal reversed and remanded for further proceedings, citing its decisions in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA 1981), and Neilson v. Department of Transportation, 376 So.2d 296 (Fla.2d DCA 1979). The district court held that "[w]hile the city had the discretion to decide whether to alter the natural state of Booker Creek, once it decided to do so, the alterations had to be designed and performed in a reasonable manner." 400 So.2d at 842. On this basis, the court concluded that Mathews had stated a cause of action for negligence against the city, and the...