Collom v. City of St. Petersburg, 80-997
| Decision Date | 03 June 1981 |
| Docket Number | No. 80-997,80-997 |
| Citation | 400 So.2d 507 |
| Parties | Bert H. COLLOM, as Personal Representative of the Estate of April Collom, Deceased, and the Estate of Judith Collom, Deceased, the Guardian of Shelley H. Collom, and for himself individually, Appellant, v. CITY OF ST. PETERSBURG, Florida, a municipal corporation and a subdivision ofthe State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Donald Wm. Giffin of Donald Wm. Giffin, P. A., St. Petersburg, for appellant.
Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee.
Before Florida expressly waived sovereign immunity by the enactment of section 768.28, Florida Statutes (1973), liability of governmental units was dependent upon whether a challenged activity was "governmental" or "proprietary." Naturally, claimants were prone to see everything as proprietary and, conversely, to the governments there was very little, if anything, that wasn't governmental.
After the doctrine of sovereign immunity was abolished, the Florida Supreme Court pointed out that certain functions of government still do not give rise to liability not because of immunity, but because some functions are discretionary, and therefore cannot be tortious because no duty to act has been breached. Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So.2d 1010, 1020(8), 1022(9). The court distinguished between functions which may give rise to liability and those which do not: the former are "operational" and the latter are "planning."
Everything has changed, yet nothing has changed. Claimants now tend to paint everything "operational," but the governments say it is almost all "planning." And as always, the courts must draw the lines. In this case the trial court was persuaded that the City of St. Petersburg was merely "planning" when it designed, installed and maintained an allegedly dangerous storm sewer system. Accordingly, the court entered summary judgment for the city in appellant's action for damages suffered when his wife and daughter were swept into the storm sewer and drowned. We reverse the summary judgment because it was predicated on an erroneous belief that the city was immune from suit.
There is no point in detailing here the allegations of what the city did or didn't do that rendered the sewer system dangerous. All those facts (and, for that matter, whether the system was in fact dangerous) must be determined by a trial. Suffice it to say here that the city's theory, that since there was no obligation to install any particular type of sewer system, it is "immune" from liability, no matter what it did, is a misconception of the law.
As we review the cases which come before us, it is all too obvious that many people still do not really understand that "sovereign immunity" simply no longer exists in this state. A government is liable for its negligent acts and omissions without exception. As already noted, the so-called exception for "discretionary" acts is a misnomer. "Discretion to act" completely precludes any possibility that a duty to act will be breached. Historically, no one whether an individual or a government has ever been liable where true discretion has been exercised in deciding whether to act or which of two or more reasonable courses of action to follow. But immunity of a government for negligently performing an act no longer exists, even though the initial decision to act may have been purely discretionary, and not compelled in any way. In other words, and at the risk of being deemed repetitive, once a government decides to act, whether out of obligation of free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.
When appellee was faced with a serious storm drainage problem, it may or may not have had discretion to refuse to do anything about it. That is not an issue here and we will not address it. We can assume that it...
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