Gordon v. City of West Palm Beach, 74--9

• Decision Date: 10 October 1975
• Docket Number: No. 74--9,74--9
• Citation: 321 So.2d 78
• Parties: Jack W. GORDON, Sr., Individually, and on behalf of Gracie P. Gordon, his wife, and as Administrator of the Estate of the Deceased, Jack W. Gordon, Jr., Appellants, v. CITY OF WEST PALM BEACH, a Municipal Corporation in the State of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 78

321 So.2d 78

Jack W. GORDON, Sr., Individually, and on behalf of Gracie P. Gordon, his wife, and as Administrator of the Estate of the Deceased, Jack W. Gordon, Jr., Appellants, v. CITY OF WEST PALM BEACH, a Municipal Corporation in the State of Florida, et al., Appellees.

No. 74--9.

District Court of Appeal of Florida, Fourth District.

Oct. 10, 1975.

Rehearing Denied Nov. 18, 1975.

Richard W. Slawson, Thompson, Tucker & Slawson, West Palm Beach, for appellants.

Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for appellees.

DOWNEY, Judge.

Jack Gordon, Jr., was killed when his motorcycle collided with an automobile at the intersection of Spencer Drive and an alleyway behind a shopping center in the City of West Palm Beach. As a result thereof Jack Gordon, Sr., et al., brought a wrongful death and survival action against appellees City of West Palm Beach and Ronald W. Schutta, the City Traffic Engineer, and Liberty Mutual Insurance Company. From a judgment dismissing the Gordon amended complaint this appeal was perfected.

The amended complaint alleged that the City constructed, owned, and maintained both Spencer Drive and the alleyway in question. The City had a duty to properly design and construct intersections and roadways under its ownership, control, and maintenance so as not to cause an unreasonable risk of harm to users thereof; but the City negligently designed and constructed Spencer Drive and the alleyway so that a person travelling west on the alleyway was prevented from seeing the existence of Spencer Drive and traffic proceeding thereon. The design and construction created an illusion that the alleyway was a continuous, non-intersected roadway and constituted a trap and an unreasonable threat of harm to the public invited to use said streets. In addition, the complaint further alleges that as the creator, owner, and maintainer of said intersection, the City breached its duty to warn persons using said intersection of the known trap and hazardous condition in that the City failed to furnish any warning device to notify the public of the alleged condition.

The amended complaint also alleged that appellee Ronald W. Schutta was the Traffic Engineer of the City of West Palm Beach. It charged him with negligence in failing to erect stop signs or other traffic control devices at the intersection in question although there had been three prior accidents at this intersection, and as a result of one such accident the investigating officer recommended to appellee Schutta that stop signs be erected there.

In dismissing the complaint the trial court cited a number of cases, all of which essentially held the cities involved had, under the circumstances, no liability because of governmental immunity.

In briefing the appellate question appellants contend that the cause of action alleged arises out of the City's negligence in designing, constructing, and maintaining its streets and the failure to warn of known defects and dangerous conditions existing in its streets. As to such a cause of action, appellants argue, the City is not immune from liability. Appellees on the other hand take the position that the trial court was correct because the claim upon which appellants attempt to obtain recovery is based on the regulation of traffic, a governmental activity precluding municipal liability in tort unless the municipality owed appellants' decedent a special duty differing from that owed to the public generally.

We are frank to admit that the current status of municipal tort liability is not at all clear since the advent of Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130; Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70, and subsequent cases attempting to interpret the breadth and scope of those two cases. Because of this uncertainty, and because of the dichotomy between the parties to this appeal, it would appear appropriate for us to state our view of that status as it pertains to this case.

For years Florida has held that the construction, maintenance, and repair of streets in a municipality is a corporate or proprietary function as opposed to a governmental function. Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916); Bryan v. City of West Palm Beach, 75 Fla. 19, 77 So. 627 (1918); City of Tampa v. Easton, 145 Fla. 188, 198 So. 753 (1940); Woods v. City of Palatka, Fla.1953, 63 So.2d 636. Thus, a municipality has a duty to construct, maintain, and repair its streets in a reasonable manner, and the failure to do so renders it liable to one injured by such negligence. In our judgment that established principle of municipal tort liability (for negligence in the exercise of proprietary functions) was in no way affected by the decision in Hargrove v. Town of Cocoa Beach, supra. The question before the Court in Hargrove was 'whether a municipal corporation should Continue to enjoy immunity from liability for the wrongful acts of police officers.' 96 So.2d at 131 (emphasis added). In deciding that under appropriate circumstances municipal immunity theretofore arising from the governmental function aspect of policemen's activities should not continue, the Court recognized that it was creating a new area of municipal liability and adding it to already existing areas of municipal liability such as 'negligecne in the maintenance of streets and bridges.' 96 So.2d at 132. Nor did Modlin v. City of Miami Beach, supra, reduce the area of previously existing municipal liability in proprietary functions. That case held only that in order for a municipality, under the Hargrove rule, to be liable for the tort of a municipal officer, arising from the performance of a governmental function, that officer himself would have to be liable to the person claiming damages, and he would be so liable only if he owed to the claimant a duty that was different from the duty he owed to any other member of the public. While it decided that the City was not liable because the officer did not meet the criterion for liability, the Court also specified that...