A. L. Lewis Elementary School v. Metropolitan Dade County, 79-286

• Decision Date: 23 October 1979
• Docket Number: No. 79-286,79-286
• Citation: 376 So.2d 32
• Parties: A. L. LEWIS ELEMENTARY SCHOOL and the Board of Public Instruction, Dade County, Fla. a/k/a Dade County School Board, Appellants, v. METROPOLITAN DADE COUNTY, City of Homestead, Florida City, Jacqueline Scott, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 32

376 So.2d 32

A. L. LEWIS ELEMENTARY SCHOOL and the Board of Public Instruction, Dade County, Fla. a/k/a Dade County School Board, Appellants, v. METROPOLITAN DADE COUNTY, City of Homestead, Florida City, Jacqueline Scott, etc., et al., Appellees.

No. 79-286.

District Court of Appeal of Florida, Third District.

Oct. 23, 1979.

Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Jeanne Heyward, Miami, for appellants.

Stuart Simon, County Atty. and Ralph C. Rocheteau, III, Asst. County Atty., Miami, for Metropolitan Dade County.

Underwood, Gillis, Karcher, Reinert & Valle and Laurence F. Valle, Miami, for City of Homestead.

Virgin, Whittle & Garbis and Gary E. Garbis, Miami, for Florida City.

Before PEARSON and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

CARROLL, Associate Judge.

Jacqueline Scott, a student at A. L. Lewis Elementary School, was injured when struck by a motor vehicle in an intersection of a street adjacent to the school grounds. She filed this action for damages against the School and the Dade County School Board, alleging her injuries were caused by their negligence. Said defendants filed a third party complaint (subsequently amended) against Dade County, the City of Homestead and Florida City for indemnity and contribution. That complaint was rejected by the court; as against Dade County and Florida City by granting their motions to dismiss; and as against the City of Homestead by judgment on the pleading following its answer. The School and School Board filed this appeal from those rulings.

To the extent that the third party complaint sought indemnity, its dismissal was eminently correct. Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). The School and County School Board were charged with active and affirmative negligence causing or contributing to cause the plaintiff's injury. As stated in Stuart (351 So.2d at 705), "(I)t follows that the rights of a party to indemnification will be denied where his own wrongful act or omission proximately contributes to the injury complained of."

To the extent that the third party complaint was for contribution (in event of subsequent recovery by plaintiff against defendants) it was not subject to dismissal as to the County. The third party complaint alleged the School had requested the County and said two cities (which shared jurisdiction of the adjoining street) to provide a school zone in said street, establish a speed zone and provide pedestrian control devices there; alleged their failure to do so and that such was the proximate cause of the injury.

The appellees argue, and correctly so, that the fixing of particular traffic zones, installation of traffic signals and pedestrial control devices are discretionarily policy matters, planning or judgment governmental features, and as such cannot be the subject of traditional tort liability; and therefore that immunity therefor continues in spite of Section 768.28, Florida Statutes (1975). Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979); Ferla v. Dade County, 374 So.2d 64 (Fla. 3d DCA 1979).

That basis for continued immunity of a county or municipality for such matters does not prevail in face of a statutory imposition of a duty on such governmental agencies to establish and maintain such traffic regulation facilities. Section 316.1895, Florida Statutes (1975) directs the Department of Transportation to adopt a system of traffic control devices and pedestrian control devices for use on streets and highways surrounding all schools, public or private; to compile and publish a manual containing the specifications and requirements, and to transfer such manual to the governing body of each county and municipality; and that "each county and municipality in the state shall install and maintain such traffic and pedestrian control devices in conformity with such uniform system". That express statutory direction to install certain speed zones and traffic and pedestrian control devices at stated locations makes such governmental actions mandatory, and the question of whether or not such shall be installed is thereby removed from the realm of governmental discretion. The charge here against the County and said cities is the alleged failure to install and maintain the directed traffic and pedestrian protective devices, not as to the quality or manner of their performance thereof.

The State statute imposed on the County a duty to install and maintain...