Dennis v. City of Tampa, 90-01875
| Decision Date | 29 May 1991 |
| Docket Number | No. 90-01875,90-01875 |
| Court | Florida District Court of Appeals |
| Parties | Regala DENNIS, Appellant, v. CITY OF TAMPA, Appellee. 581 So.2d 1345, 16 Fla. L. Week. D1489 |
Paul A. Nelson and Kimberly J. Lee of Paul A. Nelson, P.A., Tampa, for appellant.
Pamela K. Akin, City Atty. and Tyron Brown, Asst. City Atty., Tampa, for appellee.
Regala Dennis, the plaintiff, appeals a final summary judgment in favor of the City of Tampa in her personal injury action. She was injured when she was struck from behind by a passing bicyclist while she was walking in a municipal park. We affirm the summary judgment because the record establishes no breach of any standard of care owed by the City to a park patron. Specifically, we hold that the City had no obligation to supervise a few adults during their personal exercise activities at a public park.
On Monday, January 20, 1986, Ms. Dennis took a vacation day from her job as a computer technician. In the afternoon, she decided to go for a walk on a path at Horizon Park in Tampa, Florida. She had walked on this path approximately twenty-five times in the preceding two months. She was aware that the path was used by walkers, joggers, and bicyclists. She testified in her deposition that she had been walking for only a short distance on the edge of the path when she was struck from behind by a bicyclist, James Dublin. Ms. Dennis sustained significant injuries.
Mr. Dublin was a twenty-six-year-old student at Hillsborough Community College. He had been riding his ten-speed touring bicycle at the park for approximately ninety minutes prior to this accident. He explained that he saw Ms. Dennis walking on the edge of the path in front of him. He lowered his head because he was fatigued, and the next thing he remembered was striking Ms. Dennis.
Ms. Dennis sued the City on the theory that her injuries were caused in whole or in part by the City's failure to prevent Mr. Dublin from riding his bicycle at an allegedly high rate of speed on the path. Her second amended complaint states that the Tampa Police Department had assigned a police officer as a park ranger to enforce various rules, laws, and ordinances at Horizon Park. The City had posted a speed limit of ten miles per hour applicable to bicycles inside the park. The complaint alleges that the City was negligent because it did not enforce the bicycle speed limit on a regular basis and because it did not enforce the speed limit on this particular occasion. The complaint further alleges that the City was negligent because it had assigned only one officer to this park and because he was off duty on Mondays. Following discovery, the trial court concluded that Ms. Dennis' claim was based on a duty to enforce the law and granted summary judgment under the general rule that a law enforcement officer owes no legal duty to prevent a plaintiff's injuries by arresting a third person or by otherwise enforcing the law. Everton v. Willard, 468 So.2d 936 (Fla.1985).
On appeal, Ms. Dennis forcefully argues that this case is not controlled by Everton. She maintains that the park ranger's alleged obligation to enforce the bicycle speed limit involves a duty to provide supervision of park patrons as an operational aspect of providing general services. She correctly observes that a governmental unit which chooses to operate a swimming pool in a park may have an operational duty to provide reasonable supervision of the pool. Avallone v. Board of County Comm'rs of Citrus County, 493 So.2d 1002 (Fla.1986). Likewise, a city may have a premises-related duty to protect spectators at a softball diamond during scheduled games. City of Milton v. Broxson, 514 So.2d 1116 (Fla. 1st DCA 1987), review dismissed, 537 So.2d 568 (Fla.1988). Although we believe this is a close legal issue and that Everton is not fully dispositive of this case, we agree with the trial court that no actionable standard of care existed on the part of the City to protect Ms. Dennis from this type of injury in this case.
Under the analysis in Trianon Park Condominium v. City of Hialeah, 468 So.2d 912 (Fla.1985), we must first decide whether this case involves a governmental function that creates a common law duty to an individual. If so, we must next decide whether that duty is subject to litigation under the waiver of sovereign immunity. Sec. 768.28, Fla.Stat.(1989). The supreme court in Trianon Park attempted to clarify Florida's confusing concepts of governmental tort liability by dividing governmental functions into four categories:
I. Legislative, permitting, licensing, and executive officer functions;
II. Enforcement of laws and protection of the public safety;
III. Capital improvement and property control functions; and
IV. Providing professional, educational, and general services.
As summarized in Trianon Park, discretionary functions contained in categories I and II do not create duties to specific An established city park seems to involve functions in categories II, III, and IV, as the following discussion illustrates.
persons under the common law. 1 Thus, those discretionary functions are not actionable without regard to the defense of sovereign immunity. Categories III and IV, on the other hand, involve many functions that create common law duties. The defense of sovereign immunity has been waived by the legislature for those category III and IV duties which involve operational decisions, as compared to policy-making decisions, under the test described in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979)
It is apparent that various governmental employees enforce laws and protect public safety under category II inside parks as well as at other locations. We agree with the trial court that the enforcement of a speed limit is such a function. Under Everton, that function creates no actionable duty under the common law, whether the location for enforcement is or is not owned by a governmental agency. Likewise, the decision not to station police in the park on Mondays is not actionable. Wong v. City of Miami, 237 So.2d 132 (Fla.1970). This case does not involve a category II function which creates a common law duty.
The decision to build an exercise path and the obligation to maintain it would appear to be category III functions involving capital improvements and property control. After a path is constructed, a city owes a duty to use reasonable care to maintain it and to warn invitees of concealed perils. Broxson. In this case, Ms. Dennis did not allege that the accident occurred because of a defect in the path or because of a failure to warn. Cf. Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983). Photographs in the record demonstrate that the path in the vicinity of the accident was a well-maintained, asphalt path that was wide enough to permit walkers and bicyclists to use the path side-by-side. Ms. Dennis had actual knowledge that bicyclists used this path from her prior use of the path. The City had posted speed limits that applied to bicyclists. Thus, this case presents no issue under a category III duty.
The standards of care owing under any common law duty within the general services concept of category IV are not entirely clear. The First District has concluded that certain functions in parks are category IV general services creating common law duties not protected by the defense of sovereign immunity. Broxson. At least in some circumstances, the supreme court has recognized that a city has a duty to provide supervision for the benefit of invitees at recreational areas in parks. Avallone. Although we are inclined to believe that any such duty is derived from common law concepts of premises liability and, thus, might be appropriately described as a property control function under category III, we discuss any governmental duty to supervise the activities of visitors in a park within this section of the opinion.
General services involve many functions which are foreign to the private sector. As a result, general services present a difficult area in which to assess governmental tort liability. It is now well established, however, that section 768.28, Florida Statutes (1989), does not create new duties owing by the government, but rather permits recovery under duties the government would owe if it were a "private person." Kaisner v. Kolb, 543 So.2d 732 (Fla.1989); Trianon. Thus, any governmental duty to supervise potentially negligent conduct of visitors in a park must be derived from a comparable duty in the private sector.
Although Florida's courts have recognized that a landowner's relationship with persons entering the property creates a duty which may require people in the private sector to supervise the potentially negligent conduct of third parties, the standard of care owing under that duty has been quite limited. Generally, the standard of care requires only some reasonable response from a possessor of land who has actual or constructive knowledge of a third person's dangerous conduct. See, e.g., Jones v. Dowdy, 443 So.2d 467 (Fla. 2d DCA 1984); Elmore v. Sones, 140 So.2d 59 (Fla. 2d DCA 1962); Kolosky v. Winn Dixie Stores, Inc., 472 So.2d 891 (Fla. 4th DCA 1985), review denied, 482 So.2d 350 (Fla.1986); Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So.2d 523 (Fla. 3d DCA), review denied, 411 So.2d 382 (Fla.1981); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla.1970); see generally 41 Fla.Jur.2d Premises Liability Sec. 23 (1983).
At least historically, the law recognized a higher standard of care for "places of amusement" than for other places in which invitees congregated. Panoz v. Gulf & Bay Corp. of Sarasota, 208 So.2d 297 (Fla. 2d DCA), cert. denied, 218 So.2d 166 (Fla.1968). 2 In Panoz, we recognized that swimming...
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