Foley v. State, Dept. of Transp., AI-285
| Decision Date | 17 November 1982 |
| Docket Number | No. AI-285,AI-285 |
| Citation | 422 So.2d 978 |
| Parties | John F. FOLEY and Sidney J. Norred, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee. |
| Court | Florida District Court of Appeals |
Joshua Stanford Morse of Law Offices of John T. Ware, St. Petersburg, for appellants.
Jerrold K. Phillips of Brooks, Callahan & Phillips, Tallahassee, for appellee.
This is an appeal from an order granting summary judgment in favor of the Department of Transportation (DOT) predicated upon the appellants' stipulation that DOT had adopted a schedule for maintenance of downed signs and for the mowing of weeds and grass along State Road 52 where the accident occurred, and that there had been no breach or deviation from that schedule.
The facts are relatively simple and straightforward. Appellant John F. Foley, the driver of a motorcycle, and his passenger girl friend, Sidney Norred, were returning home from an outing at the Pasco County Fairgrounds when Foley pulled off onto the shoulder of the road to check an oil leak. The motorcycle became airborne as a result of striking an unmarked culvert, and both Foley and his passenger were permanently injured. In granting summary judgment for the Department the court relied upon the following findings of fact:
1. The Department of Transportation had instituted a planned program of highway maintenance throughout Pasco County on those roads under its jurisdiction and control. The planned program required an inspection of each of the three hundred miles under the Defendant's control at least once every two weeks to identify and control traffic markers which are out of place, damaged, or missing. This inspection requirement was fulfilled during the period immediately preceding the accident, March 22, 1978, through Friday, April 7, 1979; no traffic marker was then found missing, damaged or out of place at the accident scene. Further, the Department of Transportation's complaint records indicate that it had no actual notice from any other source of any missing, damaged, or out-of-place marker at the accident scene.
2. The Department of Transportation has instituted a policy concerning the mowing of right-of-way property located adjacent to those roadways under the control of the Department of Transportation. The Plaintiff has stipulated and the Court does find that there has been no breach or deviation from the requirements of the Department of Transportation's planned schedule of mowing in the vicinity of this accident.
It is apparent that although the court does not use the term governmental immunity, it is upon this theory that summary judgment was granted. Resolution of the sole issue on appeal hinges upon the characterization of DOT's alleged tortious acts. The claimed negligence is in allowing grass and weeds to obscure the offending culvert and in failing to detect and repair a missing reflector. Appellants assert that the acts of negligence combined to create a hazardous condition or "trap" for the unwary. DOT defended on the theory that formulating a schedule for mowing grass along the roadway at the site of the accident and inspecting for missing and damaged warning devices are planning level functions under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Ergo, if the schedule is followed, the agency is immune from tortious liability though the grass grows tall and the reflector vanishes.
The Florida Supreme Court in Commercial Carrier eschewed the temptation to fall back on semantic labels as a test for identification of discretionary government functions which should enjoy immunity and adopted a more practical approach. The opinion holds that section 768.28, Florida Statutes (1975) evidences the intent of our legislature to waive sovereign immunity on a broad basis. It recognizes that certain discretionary governmental functions remain immune, however, from tort liability. In order to identify those functions, the court adopted the analysis in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), which distinguishes between the "planning" and "operational" levels of decision making by governmental...
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Armas v. Metropolitan Dade County, 81-2598
...in both State of Florida, Department of Transportation v. Kennedy, 429 So.2d 1210 (Fla. 2d DCA 1983) and Foley v. State, Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982), with which we agree, that there is no merit to this position. 7 Finally, we reject the claim that, as a m......
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...who was injured when she tripped and fell over iron rods extending over a sidewalk. Comparing the case to Foley v. Department of Transp., 422 So.2d 978 (Fla. 1st DCA 1982), the court concluded that, just as the failure to maintain traffic control devices and existing roads may result in gov......
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Camillo v. Department of Transp., State of Fla., 88-890
...of governmental immunity. Neilson, 419 So.2d at 1071; Commercial Carrier Corp., 371 So.2d at 1010; Foley v. State Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982); Haspil v. State Department of Transportation, 374 So.2d 633 (Fla. 3d DCA 1979); see also Trianon Park Condominiu......
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Capo v. State Dept. of Transp., s. 93-2603
...59 (Fla. 3d DCA 1983) (governmental entities liable for failure to remove foliage which obscured stop sign); Foley v. Department of Transp., 422 So.2d 978 (Fla. 1st DCA 1982) (where plaintiff sued DOT for negligently allowing grass and weeds to grow to a height so as to obstruct view of cul......