City of Tampa v. Davis

• Decision Date: 17 September 1969
• Docket Number: No. 68--440,68--440
• Citation: 226 So.2d 450
• Parties: The CITY OF TAMPA, a municipal corporation, Appellant, v. Lillie Mae DAVIS, Appellee.
• Court: Florida District Court of Appeals

Page 450

226 So.2d 450

The CITY OF TAMPA, a municipal corporation, Appellant, v. Lillie Mae DAVIS, Appellee.

No. 68--440.

District Court of Appeal of Florida, Second District.

Sept. 17, 1969.

Rehearing Denied Oct. 8, 1969.

Lawrence I. Goodrich, Asst. City Atty., Tampa, for appellant.

Armin Smith, Jr., of Gibbons, Tucker, McEwen, Smith & Cofer, Tampa, for appellee.

McNULTY, Judge.

The City of Tampa appeals from a judgment entered upon an adverse jury verdict in a negligence action. Briefly, the series of events giving rise to this action follows. A city ordinance designated 14th Street as a 'through Street' and required that favoring stop signs be maintained controlling intersecting streets, including 15th Avenue. On September 5, 1967 the stop sign at the southwest corner of the intersection of 14th Street and 15th Avenue was knocked down by a truck involved in an accident, and a police officer investigating that accident propped up the stop sign after his investigation. Some time later, and before the accident herein, the stop sign fell down again. Three days after the accident referred to above, and on September 8, the appellee was involved in the instant accident. She was riding as a passenger in a car proceeding along the favored 14th Street, and the car in which she was riding collided with a codefendant's vehicle which had proceeded into the intersection from 15th Avenue. The codefendant was unfamiliar with the intersection and did not stop in deference to appellee's right of way, the stop sign having fallen down as we've noted.

The negligence alleged against the city was its failure to properly maintain or replace the stop sign which had fallen down, and which was required to be maintained by the city's own ordinance. The jury found in favor of the codefendant but against the City of Tampa, so this appeal involves only the city and the appellee, plaintiff below.

If this case had come before us prior to the decision of our Supreme Court in Modlin v. City of Miami Beach, ¹ we would probably have had little hesitation in affirming the judgment appealed from. Before Modlin, and after that court's decision in Hargrove v. Town of Cocoa Beach, ² it was widely assumed ³ that, given an agent's negligence and proximate cause municipal liability under the doctrine of respondeat superior was established without immunity or limitation (except in those cases when the agent's negligence was committed in the performance of a legislative, quasi-legislative, judicial or quasi-judicial duty). It is now apparent that such indulgence was embarrassingly presumptuous.

We respectfully record that few precedents have caused more confusion in the cases within their scope which come before us than does Modlin. But on close analysis, in an effort to draw a straight line through the cases following Hargrove and expressly recognized by the court in Modlin so as to crystalize its discipline, we are compelled to the conclusion that the necessary net effect of Modlin is merey to limit the scope of Hargrove.

At the outset, we point out that our discussion is confined to a very narrow area of municipal tort liability. The Court in Modlin was clearly not concerned with such liability when the torts of the city's agents were committed in the performance of what was, prior to Hargrove, commonly referred to as a 'proprietory function'; and it expressly confirmed municipal immunity from torts committed within legislative, quasi-legislative, judicial and quasijudicial functions. So what we are simply talking about is that area of municipal tort liability when the tort of the municipality's agent is committed in the performance or nonperformance of an executive (or administrative) duty in carrying out a 'governmental function'. The distinction between a proprietory function and a governmental function is material here since clearly, the alleged negligence of the city involved the performance of a governmental function, i.e., the duty to control highway traffic; ⁴ and the conclusion we must now draw is different, as will be apparent, than if the city's negligence had occurred in the performance of a proprietory function.

In Modlin, the plaintiff was seeking to recover from the city because of the negligence of the city's building inspector in failing to discover a patent defect in the construction of a retail store. Some five years after construction an overhead storage mezzanine within the store collapsed due to the aforesaid defect, and tragically Mrs. Modlin, a business invitee, was crushed to death. Since municipal tort liability is predicated on the doctrine of respondeat superior, the Modlin court found it necessary first to ascertain whether the municipality's agent, individually, would have been liable to the plaintiff. The court then went on to distinguish the duties imposed on public servants in their relationship with the general public on the one hand, from those imposed in their relationship with private individuals on the other. In discussing this distinction the court held that a 'public officer', ⁵ acting within the scope of his official duties, is not personally liable to private action unless he owes a 'special duty' to the person injured different from that owed to every other member of the public generally. The case doesn't turn on remoteness or foreseeability, but rather on the class of duty owed; and it is this concept of 'special duty' which has given rise to the difficulty.

In all the cases cited by the court in Modlin and Hargrove on, with which the court expressly had no difficulty reconciling its decision, we find a single relevant common denominator (except in one case which we will discuss later). This common denominator is that the tort of the city's agent in each case occurred in a Direct transaction with the person injured. In other words, there is found either privity or an arms-length relationship in which the city's agent is dealing directly, in some form, with the person injured; and the 'special duty' spoken of arose thereunder.

In Hargrove, it will be recalled, the person injured was a city jail prisoner. As their prisoner, the city's agents owed him a 'special duty' different then and there, at the time of the injury, from that owed the public generally.

In Thompson v. City of Jacksonville, Supra, another case cited by the Modlin court, the plaintiff was suing for damages because of injuries suffered as a result of a negligent search of her premises. A Direct transaction existed between the officers and the plaintiff to the exclusion of everyone else.

In Simpson v. City of Miami Beach; ⁶ Fisher v. City of Miami; ⁷ City of Hialeah v. Hutchins ⁸ and Shipp v. City of Miami, ⁹ each cited in Modlin, the plaintiffs' cause of action arose out of a charge of assault and battery against the city police officers. Again, a direct contact between the city's agents and the person injured was involved.

In Hewitt v. Venable, Supra, also cited in Modlin, we find a case concerned with a traffic control device, as here. The city was held amenable to tort action in that case for the negligent operation of a Manually controlled railroad signal. The city's agent, in operating the control device, then and there owed a duty to the plaintiff with whom he was in Direct contact or liason regarding the circumstances out of which the injury arose. This situation clearly differs from one in which, for example, an Automatic traffic control signal is in disrepair and the city's agent negligently repairs it, ¹⁰ or lets it stand in disrepair for a considerable length of time. In the latter case he would be breaching his duty to the public generally, as distinguished from one with whom, at the time of the negligence, he was dealing Directly.

A case which arose prior to Hargrove, but which was heavily relied upon by the Modlin court to illustrate a 'special and direct interest' a private individual would have in a transaction with a public officer, is First National Bank of Key West v. Filer. ¹¹ In that case county school board members, by an Ultra vires act, executed promissory notes to the plaintiff, ostensibly on behalf of the Board of Public Instruction. They were held individually liable in tort for their failure to comply with relevant statutory procedures governing the issuance of such notes. Once more we see the Direct transaction, indeed privity in this case, between the tort-feasor and the injured party. It was in this case, also, that the Supreme Court recognized tort liability for nonfeasance, as well as for misfeasance or malfeasance, in the breach of a duty to an individual.

It can thus be seen that in all these cases, involving the performance or nonperformance of an executive function, the tort giving rise to municipal liability arose to some degree out of privity or out of an arms-length transaction between the city's agent and the person injured. The one case which appears incongruous with this rationale, but which nonetheless was cited by the Modlin court among the cases with which it said it had no difficulty reconciling, is our decision in Evanoff v. City of St. Petersburg, Supra. In that case a city police officer was chasing a robbery suspect at high speed, and an accident...