Dudley v. City of Tampa, 2D03-5843.

• Decision Date: 12 July 2005
• Docket Number: No. 2D03-5843.,2D03-5843.
• Citation: 912 So.2d 322
• Parties: Yvonne DUDLEY, Twanda M. Cole, Kimberly Duncan, Sonya A. Hayes-Joseph, Dudley Hearn, Jr., Debra Hearn, Henry C. Henley, Betty Ann Hull, Tony Jackson, Gail Jackson, Rhonda Johnson, Brenda Livingston, Windell Nelson, Sr., Iris Nelson, Samuel Opong Yao, Debra Williams Opong Yao, Leonard Snead, Edith Snead, Marsha Thomas, Jennifer Tillis, Quankela Tillman, Willie Tolbert, Willie Wilson, Donna Wilson, and Shirley Anderson, Appellants, v. CITY OF TAMPA and Tampa Hillsborough Action Plan, Inc., Appellees.
• Court: Florida Supreme Court

912 So.2d 322

Yvonne DUDLEY, Twanda M. Cole, Kimberly Duncan, Sonya A. Hayes-Joseph, Dudley Hearn, Jr., Debra Hearn, Henry C. Henley, Betty Ann Hull, Tony Jackson, Gail Jackson, Rhonda Johnson, Brenda Livingston, Windell Nelson, Sr., Iris Nelson, Samuel Opong Yao, Debra Williams Opong Yao, Leonard Snead, Edith Snead, Marsha Thomas, Jennifer Tillis, Quankela Tillman, Willie Tolbert, Willie Wilson, Donna Wilson, and Shirley Anderson, Appellants, v. CITY OF TAMPA and Tampa Hillsborough Action Plan, Inc., Appellees.

No. 2D03-5843.

District Court of Appeal of Florida, Second District.

May 13, 2005.

Rehearing Denied July 12, 2005.

G. Luis Dominguez and Richard Guerra of Fowler Rodriguez & Chalos, Coral Gables, and Samuel R. Mandelbaum of Mandelbaum & Fitzsimmons, Tampa, for Appellants.

David L. Smith, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, for Appellee City of Tampa.

Warren Hope Dawson of Dawson & Associates, Tampa, for Appellee Tampa Hillsborough Action Plan, Inc.

CASANUEVA, Judge.

Appellants, residents of the Martin Luther King Village Subdivision in the City of Tampa, sued the City of Tampa and the Tampa Hillsborough Action Plan, Inc. [THAP] for negligence claiming that they and their homes have suffered substantial damage due to defective soil conditions of which the City and THAP were aware but failed to disclose.¹ The residents appeal a partial final judgment that dismissed count X against the City and count XV against THAP.² After careful review of the pleadings and record, we conclude the trial court did not err in dismissing these two counts of their third amended complaint with prejudice because the City and THAP owed no duty to the residents. We write only to discuss that portion of count X claiming that the City was negligent for failure to warn of the defective soil conditions.

Factual Allegations in the Third Amended Complaint

The third amended complaint asserted that in 1987 the City, in an effort to combat urban blight, developed an Affordable Housing Program. Also at this time, the Mayor's Challenge Fund was established, a central component of which was to make money available to qualified individuals who were traditionally unable to buy homes. To meet the objectives of the Affordable Housing Program, the City would designate the following: a vacant tract of land to be used as the site for the housing subdivision, a not-for-profit developer, a not-for-profit entity to take title and sell parcels to homeowners, and the builder. In 1994, THAP, the designated not-for-profit developer, acquired the property now known as the Martin Luther King Village subdivision from its private owner. Prior to acquiring the property, THAP hired an engineering company to test the soil conditions. Following testing, the engineers reported that the soil beneath the land was not suitable in its present condition for constructing homes.³

In 1995, THAP sold the land to the second not-for-profit developer, Tampa United Methodist Centers, Inc. [TUMC], which contracted with a builder, All State Homes, Inc., to construct single family homes on the property. In February 1996, early in the construction process, the builder uncovered a layer of fibrous organic material and communicated this problem to TUMC, saying that as a result of the soil's condition the foundations of the homes would need to be strengthened at extra cost. TUMC refused to fund the additional work, claiming that it had already given the builder notice of the soil problem. Construction and sale of the homes continued without any action to ameliorate the problem.

Count X alleged that the City, which was neither the developer nor owner of the land nor the builder of the homes, was aware of the soil defects prior to the construction of the plaintiffs' homes and failed to disclose the soil defects to them. Further, it alleged that the developer purchased the land in question "at the behest of the City."

Analysis

Because the partial final judgment in favor of the City was predicated on the motion to dismiss, we must take as true those facts properly pleaded in the complaint. Paragraph 174 of the third amended complaint asserted that the City had a "legal duty to warn all Plaintiffs of the known and defective soil conditions affecting the Land." Although the allegations regarding the condition of the land and the City's actions raise fact questions, whether a defendant has a duty toward a plaintiff is a question of law that we review de novo. Bacon Family Partners, L.P. v. Apollo Condo. Ass'n, 852 So.2d 882 (Fla. 2d DCA 2003); see also Robert-Blier v. Statewide Enters., Inc., 890 So.2d 522 (Fla. 4th DCA 2005) (stating that in negligence, the threshold issue is the existence of the defendant's duty to the plaintiff, citing Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182 (Fla.2003), and whether any duty in tort exists is a question of law, citing McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992)). We thus look first to the duty element in the residents' negligence claim against the City.

In focusing on the claim of the City's negligent failure to warn of the defective soil conditions, we examine the serious allegation that a governmental entity has harmed some of its citizens. "There is ... an august body of law which we must follow in determining those instances in which the sovereign will be liable for [such] failings." Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 932 (Fla.2004). Two questions must be considered: the threshold question of whether the sovereign owes the plaintiff a duty, Clay Elec. Coop., 873 So.2d at 1185; and, if so, whether the governmental conduct is immune from liability, McCain, 593 So.2d at 502. See also Pollock, 882 So.2d at 932 ("If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached."); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) ("[T]he question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity."); Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985) (holding that "for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care"). "There can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." Henderson v. Bowden, 737 So.2d 532, 535 (Fla.1999). Thus, we must determine whether the residents' claim of the City's negligent failure to warn is supported by either a statutorily imposed duty of care or by a common law duty identical to that imposed upon private citizens in these circumstances.

As to a statutory duty of care, the...