Department of Transp. v. Konney, s. 75180

• Decision Date: 10 October 1991
• Docket Number: Nos. 75180,75241,s. 75180
• Citation: 587 So.2d 1292
• Parties: DEPARTMENT OF TRANSPORTATION, Petitioner, v. Loretta KONNEY, etc., et al., Respondents. PALM BEACH COUNTY, Petitioner, v. Loretta KONNEY, etc., et al., Respondents. 587 So.2d 1292, 16 Fla. L. Week. S659, 16 Fla. L. Week. S695
• Court: Florida Supreme Court

Page 1292

587 So.2d 1292

DEPARTMENT OF TRANSPORTATION, Petitioner, v. Loretta KONNEY, etc., et al., Respondents.

PALM BEACH COUNTY, Petitioner, v. Loretta KONNEY, etc., et al., Respondents.

Nos. 75180, 75241.

587 So.2d 1292, 16 Fla. L. Week. S659, 16 Fla. L. Week. S695

Supreme Court of Florida.

Oct. 10, 1991.

Michael B. Davis, of Davis Hoy Carroll & Isaacs, P.A., West Palm Beach, for petitioner, State of Florida Dept. of Transp.

Christopher D. Mauriello, Asst. County Atty., West Palm Beach, for petitioner, Palm Beach County.

Richard L. Martens and Fletcher N. Baldwin, III of Boose Casey Ciklin Lubitz Martens McBane & O'Connell, West Palm Beach, for respondents.

Robert A. Butterworth, Atty. Gen. and Franz Eric Dorn, Deputy Asst. Atty. Gen., Tallahassee, amicus curiae for The Office of Atty. Gen.

Susan H. Churuti, County Atty., Clearwater, amicus curiae for Pinellas County.

John J. Copelan, Jr., County Atty., Alexander Cocalis, Chief Trial Counsel and Stephanie W. Werner, Asst. County Atty., Fort Lauderdale, amicus curiae for Broward County.

Robert R. Warchola, Asst. County Atty., Tampa, amicus curiae for Hillsborough County.

Charlene V. Edwards, Asst. City Atty., Tampa, amicus curiae for City of Tampa.

V. Lynn Whitfield, West Palm Beach, amicus curiae for City of West Palm Beach.

Phillip C. Gildan of Nason, Gildan, Yeager, Gerson & White, P.A., West Palm Beach, amicus curiae for The Academy of Florida Trial Lawyers.

OVERTON, Justice.

We have for review State, Department of Transportation v. Konney, 551 So.2d 613 (Fla. 4th DCA 1989), in which the Fourth District Court of Appeal held that, in a claim against the State of Florida, Department of Transportation (State) and Palm Beach County (County) for damages resulting from an accident at the intersection of a county and a state road, the trial court could properly admit "evidence showing that a 'particular traffic control device should have been installed.' " The district court effectively held that the failure to upgrade the intersection by installing a flashing beacon was a proper claim and not protected by the doctrine of sovereign immunity. We find conflict with Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), and Ingham v. State, Department of Transportation, 419 So.2d 1081 (Fla.1982). ¹ For the reasons expressed, we quash the district court's holding and remand for entry of a judgment in favor of petitioners.

On June 23, 1983, Douglas Konney was driving south on State Road 710 (S.R. 710), and George Funk was driving west on County Road 809 (C-809). This suit arose out of an automobile accident which occurred when their vehicles collided at the intersection of S.R. 710, controlled by the Department of Transportation, and C-809, controlled by Palm Beach County. These two roads intersect in a manner that creates two acute angles and two obtuse angles, rather than four right angles. ²

Traffic on S.R. 710 has the right of way at its intersection with C-809. Southbound traffic on S.R. 710, which is the direction that Konney was traveling, would encounter the following three warning signs before that road intersected with C-809: (1) a side road sign at 1,740 feet; (2) a 45-mile-per-hour sign, reducing speed from 55 miles per hour, at 1560 feet; and (3) at 650 feet, a crossroad sign. Westbound traffic on C-809, which was the direction Funk was traveling, was governed by a stop sign at the main intersection; 488 feet in advance of this stop sign was a "Stop Ahead" warning sign. In addition, the road surface on C-809 was painted with appropriate markings in reflective paint. The speed limit on C-809 was 55 miles an hour.

A Game and Freshwater Fish Commission officer was driving westbound on C-809, directly behind the Funk vehicle. The officer noted that Funk was speeding up and slowing down for no apparent reason. As the Funk vehicle approached the intersection of C-809 and S.R. 710, the officer noted that it was traveling at a speed of 45 to 55 miles per hour. When the officer began to slow down to make a right-hand turn, he observed the Konney vehicle traveling south on S.R. 710. Although there was a stop sign, the Funk vehicle continued straight ahead and entered the intersection without ever applying its brakes. As Konney approached the intersection, he apparently saw the Funk vehicle because he locked his brakes, leaving 35 to 41 feet of skid marks prior to impact with the Funk vehicle. The commission officer called the police and emergency assistance. Konney was killed in the collision; Funk died later in the hospital. The passenger in the Funk vehicle survived.

Konney's estate brought a wrongful death action against the State and the County, alleging that: (1) they were negligent in failing to install a flashing beacon at the intersection; (2) the County should have installed rumble strips on C-809 on the approach to the intersection; and (3) the location and type of signs on each roadway were improper. Konney presented expert testimony that explained the need for a flashing beacon and rumble strips at this intersection. Evidence was also presented that established that from 1973 to 1977 no accidents occurred at this intersection and that from 1978 to 1982 there were twelve accidents. The State presented statistical evidence to show that the number of accidents during 1978 through 1982 was below average for a rural intersection.

Konney emphasized to the jury the State's and County's failure to install a flashing beacon at the intersection and the County's failure to install rumble strips on C-809. The jury returned a verdict in favor of Konney and against each of the defendants, finding the County 60% liable and the State 40% liable. The jury assessed damages at $260,000.

On appeal, the Fourth District Court of Appeal affirmed. In doing so, the district court noted our decision in City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982), in which we held that

once a governmental entity creates a known dangerous condition which may not be readily apparent to one who could be injured by the condition, and the governmental entity has knowledge of the presence of people likely to be injured, then the governmental entity must take steps to avert the danger or properly warn persons who may be injured by that danger.

Id. at 1086 (emphasis omitted). In its decision, the Fourth District Court of Appeal applied our Collom decision and concluded: "The trial judge properly admitted evidence showing a flashing beacon should have been installed at the intersection to warn drivers in a manner more consistent with the safety of the traveling public." Konney 551 So.2d at 615.

In a series of cases, we have distinguished between government liability for failure to properly plan, align, and upgrade roads or intersections, including the installation of traffic control devices, and the government's duty to maintain existing facilities and its liability for failure to warn of a known dangerous condition. In the first instance, we have consistently held that decisions concerning the initial plan, road alignment, traffic control device installation, or the improvement of roads and intersections are not matters which would subject a governmental entity to liability, because these activities are basic capital improvements and are judgmental, planning-level functions. Neilson; Ingham; Perez v. Department of Transp., 435 So.2d 830 (Fla.1983).

In Neilson, we held that "decisions relating to the installation of appropriate traffic control methods and devices or the establishment of speed limits are discretionary decisions which implement the entity's police power and are judgmental, planning-level functions." 419 So.2d at 1077. We emphasized that the term "maintenance" is not a term that may be used in this context to indicate the need to upgrade a road by such things as widening or changing the means of traffic control. Id. at 1078. Our decision under those circumstances was necessary to protect the separation-of-powers doctrine. ³ We noted that it was not a judicial function to determine what was suitable road construction or when funds must be spent to upgrade existing roads. Regarding the second situation, we further explained in Neilson and Collom that failure to warn of a known dangerous condition may serve as a basis for an action against a governmental entity because it is a negligent omission at the operational level of government. Id.

The issue in the instant case is whether the installation of a flashing beacon at the intersection of S.R. 710 and C-809 was a planning-level decision required to upgrade the intersection because of increased traffic or a necessary device due to a known dangerous condition at the time this intersection was created, i.e., an operational-level decision. In the first instance, sovereign immunity would prohibit recovery under the principles of Neilson and its progeny, while in the second instance recovery would be allowed under Collom.

Both the State and the County assert that the Fourth District Court of Appeal's decision conflicts with Neilson and Ingham. They argue that this action is barred from suit by sovereign immunity because the decision of whether to install a flashing beacon is a planning-level decision as opposed to an operational-level decision. The State and the County contend that there is no causal nexus between the road signs and the accident. They assert that, if the district court's analysis is adopted, then judges and juries will be able to determine the adequacy of traffic control signals at all intersections. The State and the County argue that, no matter how a governmental body builds a road, its actions will always be subject to a judge's or jury's review. Konney, on the other hand, asserts that, since there was no proper warning of a known dangerous condition, the Fourth District Court of Appeal's decision is consistent with our decision in Collom, particularly in view of the...