Manors of Inverrary XII Condominium Ass'n, Inc. v. Atreco-Florida, Inc.

• Decision Date: 28 September 1983
• Docket Number: No. 81-138,INC,ATRECO-FLORID,81-138
• Citation: 438 So.2d 490
• Parties: The MANORS OF INVERRARY XII CONDOMINIUM ASSOCIATION, INC., Appellant, v., City of Lauderhill, Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 490

438 So.2d 490

The MANORS OF INVERRARY XII CONDOMINIUM ASSOCIATION, INC., Appellant, v. ATRECO-FLORIDA, INC., City of Lauderhill, Florida, et al., Appellees.

No. 81-138.

District Court of Appeal of Florida,

Fourth District.

Sept. 28, 1983.

Robert J. Manne of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appellant.

Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellee City of Lauderhill.

DOWNEY, Judge.

The issue involved in this appeal is whether the doctrine of governmental immunity protects a municipality from liability for the negligence of its building inspector in approving plans, specifications and construction which do not meet the requirements of the applicable building code. The trial court dismissed the complaint against the City, appellee states, on the ground of sovereign immunity.

Appellant, a condominium association, filed this class action on behalf of its unit owners pursuant to Rule 1.221, Fla.R.Civ.P., against the developer, general contractor, architect and the City of Lauderhill. While the complaint alleges numerous defects in the construction Count III of the amended complaint against the City alleged that the City was negligent in failing to properly examine the plans and specifications and properly inspect the premises before issuing a building permit and certificate of occupancy. As a result, it is alleged, the improvements fail to meet the requirements of the South Florida Building Code in numerous respects. The City's motion to dismiss on the ground that it was entitled to sovereign immunity because the enforcement of the building code is a discretionary function was granted. From a final judgment dismissing the City, appellant has perfected this appeal. We reiterate that the sole question argued on appeal is whether the activities of a city building inspector in approving plans, specifications and construction is discretionary planning activity or operational activity.

The building code in effect in the City of Lauderhill is the South Florida Building Code adopted by special act of the legislature for Broward County in Chapter 71-575, Laws of Florida. The code provides that application for a building permit must be accompanied by two sets of plans for the proposed improvement. The Building Official is then required to examine the plans to determine their compliance with the building code. If they comply, he issues a building permit; if not, the plans are rejected. After issuance of a permit, the code requires periodic inspections. If the construction meets code requirements and is approved a certificate of occupancy is ultimately issued. Appellant contends the City Building Official approved plans and specifications which did not meet code requirements and that he approved on-site construction which also violated the code.

Appellant's position is that the City is liable for its negligence in not requiring compliance with the building code because the enforcement of the code is an operational activity. The City, on the other hand, argues that the Building Official's function is discretionary and part of his planning activity and thus remains cloaked with sovereign immunity. The planning-operational dichotomy was introduced into the jurisprudence of this state in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) and now controls the determination of which governmental functions are still protected by sovereign immunity and which are not pursuant to the waiver provisions of Section 768.28, Florida Statutes (1981).

We agree with appellant that when the City decided to employ the South Florida Building Code as its standard for construction, it was engaged in discretionary or planning activity. The examination of plans and specifications for the issuance of a building permit and on-site inspections to determine compliance with code requirements prior to issuance of the certificate of occupancy are operational activities. We reach that determination by applying the Commercial Carrier four-prong test adopted from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). Without exploring all facets of appellee's argument, suffice it to say that we are in accord with the recent decision of the Third District Court of Appeal in Trianon Park Condominium Association v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982). Virtually all of appellee's arguments were adequately answered in that case (which decision was filed after the rendition of the judgment in this case).

Perceiving the question involved in this case to be one of great public importance, we certify the following question to the Supreme Court of Florida:

Should the negligent conduct of a building inspector in approving plans, specifications, and construction that do not meet the requirements of the applicable building code be considered "operational" conduct for which the municipality may be held liable in damages or "discretionary" conduct to which sovereign immunity would apply?

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

GLICKSTEIN, J., concurs specially with opinion.

ANSTEAD, C.J., dissents with opinion.

GLICKSTEIN, Judge, concurring specially.

In concurring specially, I analogize to federal cases including the recently decided Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). There a borrower sued the Farm Home Administration (FmHA) under the Federal Tort Claims Act (FTCA) to recover for construction defects in the home she purchased with an FmHA loan. Under her contract with the builder, the work was to conform to plans approved by FmHA, and FmHA had the right to inspect and test all materials and workmanship and reject any that were defective. An FmHA official inspected both during and at completion of construction, and reported compliance with the FmHA approved drawings and specifications. When the borrower discovered, and FmHA verified, certain defects, the builder refused to correct them under his warranty, and FmHA declined to pay for the defects. The borrower's suit was bottomed on a theory that the defects were partly attributable to FmHA's employee's inadequate inspection and supervision of construction. The Supreme Court affirmed a Court of Appeals holding that the complaint was not barred by the FTCA statutory exception which precludes recovery for a claim arising out of misrepresentation. Of particular significance to the instant case is the United States Supreme Court's implied imprimatur on the following reasoning of the Court of Appeals:

The Court of Appeals ... agreed with the District Court that FmHA had no contractual obligation to provide Neal with technical assistance or to inspect and supervise construction of her house.... [but] found that respondent's complaint stated a claim for negligence under the principle "that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care." ... Restatement (Second) of Torts § 323 (1965). It noted that, subject to express exceptions, the Tort Claims Act, 28 U.S.C. § 2674, authorizes suit against the Government for the negligence of a federal agency in performing a voluntary undertaking.

460 U.S. at ----, 103 S.Ct. at 1092, 75 L.Ed.2d at 72. (citations to Court of Appeals opinion deleted) (footnote omitted).

The Supreme Court's decision in Neal affirmatively held only that the government's argument for the misrepresentation exception under the FTCA could not stand. The court did not state that Neal's negligence claim lies. However, the opinion implies that if, in the jurisdiction in which the events of Neal occurred, the Good Samaritan doctrine of § 323 of the Restatement (Second) of Torts is recognized and is applicable against a private defendant, a like cause of action could be raised against a federal agency. See id. 103 S.Ct. at 1092 and n. 3. This proviso accords with the core provision of the FTCA.

The history of the doctrine of sovereign immunity and of its gradual erosion impels me to believe that Neal and the members of The Manors of Inverrary XII Condominium Association, who are in the same boat, are entitled to seek the same relief. Although sovereign immunity may have originated in Roman law, more likely it stems from the theory of the divine right of kings promoted by Henry VIII to justify his split from the Roman Church and from his many wives. Why a doctrine derived from the idea that a king can do no wrong came to be the law in our democratic republic is an enigma. The rationale, of course, is that the government, whether monarchical or representative, is the sovereign. When the Supreme Court attempted to interfere with the sovereign immunity of the States, Chisholm v. Georgia, 2 U.S. 419, 1 L.Ed. 440 (1793), Congress and the States responded by adopting the Eleventh Amendment, which permits no private citizen suit against a state in federal court without the state's consent. And in Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821), Chief Justice Marshall discovered that no suit could be undertaken against the United States without its consent.

It is even harder to see why American municipalities were found at common law to have governmental immunity. No one claims that cities or counties are sovereign. Moreover, governmental immunity of municipalities never saw the light of day in Great Britain until a decade after the United States Constitution had been ratified. See Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng.Rep. 359 (1798). Be that as it may, our common law came to hold that, because municipalities have dual roles as governments and corporations, when they exercised public powers they shared the State's immunity as delegatees of the State, but when they exercised proprietary powers comparable to those of other...