Krol v. City of Orlando, 5D00-209.

• Court: Court of Appeal of Florida (US)
• Citation: 778 So.2d 490
• Docket Number: No. 5D00-209.,5D00-209.
• Parties: Theresa KROL, et al., Appellants, v. CITY OF ORLANDO, Appellee.
• Decision Date: 23 February 2001

778 So.2d 490

Theresa KROL, et al., Appellants,
v.
CITY OF ORLANDO, Appellee

No. 5D00-209.

District Court of Appeal of Florida, Fifth District.

February 23, 2001.

Marc Jay Tannen of Abrams Anton, P.A., Hollywood, for Appellants.

Launa K. Rutherford and Jeremy K. Markman of Grower, Ketcham, More, Rutherford, Noecker, Bronson & Eide, P.A., Orlando, for Appellee.

SAWAYA, J.

The appellants, Robert and Theresa Krol, appeal a summary judgment entered in their personal injury lawsuit in favor of the appellee, City of Orlando (the City). The trial court entered summary judgment finding "that the City's decision to install a particular open throat storm drain with a

778 So.2d 491

particular alignment is a judgmental planning level function for which absolute immunity attaches." The trial court also held that the storm drain was open and obvious and summary judgment was appropriate as a matter of law pursuant to the decision in Rosenfeld v. Walt Disney World Co., 651 So.2d 811 (Fla. 5th DCA 1995) and its ancestry. We reverse

There are two distinct issues that we must resolve in determining whether summary judgment is appropriate: 1) whether the sovereign, the City, is immune from liability and 2) whether judgment in favor of the City is appropriate as a matter of law pursuant to the obvious danger doctrine. We will discuss in separate sections of this opinion the following: the factual background of the instant case; the standard of review; the doctrine of sovereign immunity as it applies to the instant case; and the obvious danger doctrine.

Factual Background

This case originated when Theresa stepped off a median into an open storm water drain situated on Garland Avenue in the Church Street Station area of the City. As a result, she fell and broke her ankle. At the time Theresa stepped down from the median, it was dark and it had been lightly raining.

Karl McClary, the Supervisor of Storm Water Management for the City, testified that the City is responsible for maintaining the drainage systems on Garland Avenue and that the levels or slopes of throat openings vary depending on the "hydrology" (waterflow) of the particular location. The pictures of the particular drain that caused this incident show that as pedestrians step down from the sidewalk, they step directly onto a severely sloped area or plank of concrete leading directly into the drain opening which is reported to be slippery when wet. The pictures also show that this particular drain opening may be difficult to see as pedestrians approach the location.

Mr. McClary also testified that the drains located across the street from the location where Theresa fell had grate covers over them which prevented pedestrians from stepping into the throat of the drains. The pictures of these particular drains show that a corrugated metal plate has been placed on the curb over each drain opening in order to extend the location of any step down from the curb onto the road beyond the slope of the drain opening. In addition, some pictures showed that a corrugated metal plate was placed on the roadway over the sloped plank of concrete to make a level area for the pedestrian to step onto. These covered drains are maintained by Church Street Station.

Frank Occhipanti, a Construction Manager for Church Street Station, testified that he was involved in the decision to place the corrugated metal plates on the storm drains maintained by Church Street Station. He testified that he thought these corrective measures were necessary because the drain openings were too large and they presented a potential danger to pedestrians. He further testified that the City had been made aware of these corrective measures. Testimony in the record also reveals that the Director of Public Works for the City received a request from Church Street Station for authorization to modify the inlets to their storm drains with the corrugated metal plates and that the City gave its authorization. The testimony of the Bureau Chief for Project Construction for the City was that he knew of no other reason why Church Street Station would place metal coverings over their storm drains other than to protect pedestrians from stepping into them.

Standard Of Review

The proper standard of review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000). In order to determine the propriety of a summary judgment, this court must resolve whether there is any "genuine issue as to any material

778 So.2d 492

fact" and whether "the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). Generally, "[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversed. See Sierra. We will apply this standard of review to each issue, beginning with the issue relating to sovereign immunity

Sovereign Immunity

There has been much litigation against governmental entities relating to injuries incurred by citizens utilizing capital improvements. As a result, some general principles have emerged from the case law. One principle provides that planning and designing capital improvements are discretionary functions of government which are immune from tort liability and do not fall within the ambit of the waiver provisions of section 768.28, Florida Statutes (Supp.1996). See Perez v. Department of Transp., 435 So.2d 830 (Fla.1983); Department of Transp. v. Neilson, 419 So.2d 1071 (Fla.1982); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). It is this general principle that the trial court utilized to impose summary judgment against the Appellants in the instant case.

There is, however, an exception to the general rule of immunity regarding decisions relating to the planning and designing of capital improvements that the trial court failed to apply. This exception provides that once a governmental entity creates a known dangerous condition which may not be readily apparent to those who could be injured by it, then the government must take steps to...