Commercial Carrier Corp. v. Indian River County

• Decision Date: 19 April 1979
• Docket Number: 53178,Nos. 51462,s. 51462
• Citation: 371 So.2d 1010
• Parties: COMMERCIAL CARRIER CORPORATION et al., Petitioners, v. INDIAN RIVER COUNTY et al., Respondents. William Walden CHENEY et al., Petitioners, v. DADE COUNTY, Respondent.
• Court: Florida Supreme Court

Page 1010

371 So.2d 1010

COMMERCIAL CARRIER CORPORATION et al., Petitioners, v. INDIAN RIVER COUNTY et al., Respondents.

William Walden CHENEY et al., Petitioners, v. DADE COUNTY, Respondent.

Nos. 51462, 53178.

Supreme Court of Florida.

April 19, 1979.

Rehearing Denied July 9, 1979.

Gilbert E. Theissen, of Gerald M. Walsh & Associates, Fort Lauderdale, for Commercial Carrier Corp., et al.

Alan R. Dakan, of High, Stack, Lazenby & Bender, Miami, for William Walden Cheney et al.

Robert M. Klein, of Stephens, Schwartz, Lynn & Chernay, P.A., Miami, for Indian River County.

Alan E. DeSerio, Larry K. White and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Florida Department of Transportation.

Steven R. Berger, of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for Dade County.

Ronald W. Brooks and Michael T. Callahan, of Brooks & Callahan, for Departments of Highway Safety and Motor Vehicles and Offender Rehabilitation, amici curiae.

Alan E. DeSerio, S. W. Moore, Jerrold K. Phillips and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for Department of Transportation, amicus curiae.

Robert Orseck, of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers, amicus curiae.

Jackson L. Peters, of Knight, Peters, Pickle, Niemoeller & Flynn, Miami, for Dade County School Board, amicus curiae.

SUNDBERG, Justice.

It is our task today to determine the scope of the waiver of sovereign immunity resulting from the enactment of chapter 73-313, as amended by chapter 74-235, Laws of Florida, section 768.28, Florida Statutes (1975). ¹ The issue reaches us by writ of certiorari from two separate decisions of the District Court of Appeal, Third District, which have been consolidated for review by this Court. The first decision, Commercial Carrier Corporation v. Indian River County, ² is alleged to be in conflict with Gordon v. City of West Palm Beach. ³ The second, Cheney v. Dade County, ⁴ was certified by the district court as involving a question of great public interest. Jurisdiction vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution.

COMMERCIAL CARRIER CORPORATION v. INDIAN RIVER COUNTY

Petitioner, Commercial Carrier Corporation, and its liability insurer, Merchants Mutual Insurance Company, were defendants below in an action for wrongful death arising from the collision of petitioner's tractor-trailer and decedents' automobile. The collision occurred at an unmarked intersection in Indian River County at which it is alleged there had previously been a stop sign and pavement markings governing the road upon which petitioner's vehicle was operating. Petitioner and its liability insurer filed a third-party complaint naming Indian River County and the Florida Department of Transportation (DOT) as third-party defendants. The complaint sought indemnity and contribution for the negligent failure of Indian River County to maintain the stop sign at the intersection, and for the negligent failure of the DOT to paint or replace on the pavement the word "STOP" in advance of the entrance to the intersection. Respondents filed motions to dismiss the complaint, alleging in part that (1) petitioner had failed to comply with the notice requirement of section 768.28(6), Florida Statutes (1975); (2) section 768.28 did not waive the immunity of the state or its agencies from claims for indemnity or contribution; (3) Commercial Carrier had failed to allege the breach of any duty owing to it as opposed to the public at large; and (4) petitioner had failed generally to state a cause of action. The trial court dismissed the third-party complaint, and the District Court of Appeal, Third District, affirmed.

CHENEY v. DADE COUNTY

Julia Ramy filed suit against petitioner Cheney and his liability insurer for damages resulting from an intersection collision on March 14, 1975, in Dade County. Petitioner filed a third-party complaint against respondent, alleging that the county had negligently maintained a traffic light at the intersection and that this negligence was the sole cause of the accident. Petitioner pleaded alternatively that he was only passively negligent and thus entitled to indemnity.

Respondent moved to dismiss the complaint on the following grounds: (1) the complaint failed to state a cause of action because the doctrine of sovereign immunity precludes recovery against respondent; (2) petitioner failed to allege knowledge on the part of the respondent as to the malfunctioning of the traffic light; (3) petitioner failed to allege how sovereign immunity had been waived; and (4) petitioner failed to allege compliance with the notice provisions of section 768.28(6), supra. The trial court granted respondent's motion and dismissed the third-party complaint with prejudice. The District Court of Appeal, Third District, affirmed, holding that no cause of action existed for respondent's allegedly negligent act.

The operative portion of section 768.28 reads:

(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.

A limitation upon the liability of the state and its agencies and subdivisions is expressed in section 768.28(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 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. 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 or $100,000, 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.

By definition, "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 As a condition precedent to instituting an action on a claim against the state or one of its agencies or subdivisions, the claimant is required to give written notice to the appropriate agency or agencies ⁶ and the action must be commenced within four years after such claim accrues. ⁷

The district court in Commercial Carrier Corporation, supra, asserting that it was unnecessary to discuss the implications of section 768.28, held that it is not actionable negligence for a governmental authority to fail to maintain a traffic control device at a given time and place. Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975), among other cases, was cited as authority for the holding. In Cheney, supra, the same court applied the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967), and concluded that section 768.28 "does not create a liability in the State where the act complained of does not give rise to liability in the agent committing the act, because the duty claimed to be violated is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons." 353 So.2d at 626. By importing a concept of municipal immunity from tort liability the court reasoned that no cause of action existed for the alleged wrong and, therefore, section 768.28 had no application because it was not intended to create a cause of action where none existed at common law prior to its enactment.

Respondents and amici support the decisions of the district court on several grounds. Apart from the reasoning of the court below, they maintain (1) that section 768.28 was intended to make the tort liability of the state and its political subdivisions coextensive, that liability to be measured by the scope of liability of municipal corporations at the time of enactment of the statute; (2) that there can be no tort liability under the act for essentially governmental functions because "private persons" do not perform such functions; and (3) that the acts or omissions complained of are discretionary in nature, thereby immunizing the governmental authority from liability.

Petitioners and other amici assert a much broader scope of operation for section 768.28, ranging from unlimited liability in tort for all acts or omissions by government to liability at least for those governmental acts and omissions at the operational level which involve no discretion. Each submits that the conduct complained of in the instant cases supports a cause of action even under a limited view of the statute.

While we are not prepared to embrace the notion that all acts or omissions by governmental authorities will subject them to liability in tort under the statute, nevertheless we conclude that the district court has...