MARION v. CITY of BOCA RATON, 4D09-1710.

• Decision Date: 20 October 2010
• Docket Number: No. 4D09-1710.,4D09-1710.
• Citation: 47 So.3d 334
• Parties: Elizabeth MARION, Appellant, v. CITY OF BOCA RATON, a Political Subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

47 So.3d 334

Elizabeth MARION, Appellant,

v.CITY OF BOCA RATON, a Political Subdivision of the State of Florida, Appellee.

No. 4D09-1710.

District Court of Appeal of Florida,Fourth District.

Oct. 20, 2010.

James S. Usich of Law Offices of James S. Usich, P.A., Palmetto Bay, for appellant.

Daniel L. Abbott and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for appellee.

WARNER, J.

The trial court entered final summary judgment in favor of the City of Boca Raton in a negligent maintenance suit, finding no causation between the negligent maintenance of the City's traffic light and the intersectional collision causing injury to the plaintiff. Because genuine issues of material fact remain, we reverse.

Appellant Elizabeth Marion was injured in a car accident while driving westbound on Glades Road in Boca Raton at its intersection with Renaissance Way. The intersection is a major one, Glades Road consisting of six lanes going west, two of which were turning lanes onto Renaissance Way. It is controlled by traffic lights. At the time of the accident, however, the traffic light was flashing yellow for traffic on Glades Road and flashing red for traffic on Renaissance Way. Marion started to slow down, hitting her brakes when she saw other cars to her left also braking. As she entered the intersection, she struck a vehicle driven by Catherine Wilson and owned by Lillian Petow, travelling north on Renaissance Way.

Marion sued Wilson, Petow, and the City of Boca Raton for negligence resulting in injuries to her. ¹ As to the City, she alleged that it had negligently maintained the traffic control device at the intersection in that the device had failed several times prior to the accident and the City had failed to make the necessary repairs. She further alleged that the failure to have a functioning traffic control device which stopped traffic on one street while the traffic on the other street proceeded was the proximate cause of the accident.

In deposition, the City Traffic Operation Engineer testified that when the traffic control devices at this intersection have a problem or fault, a conflict monitor defaults the traffic lights into flashing red for North/South traffic and flashing yellow for East/West traffic. The City had been called to the same intersection as a result of the traffic control devices going to flashing red and flashing yellow mode twice just prior to the accident. The first fault occurred the day before, and the second fault occurred earlier on the day of the accident. Each time, the City simply reset the light and did not change the monitor responsible for tripping the lights into flashing mode. No one determined why the fault occurred. After the accident, the City replaced the monitor.

The City filed a motion for summary judgment on issues of sovereign immunity, negligence and proximate cause. It contended: 1) the City's planning decision to control intersections with traffic signals in safety mode was protected by sovereign immunity; 2) Marion could not establish that the City was negligent as the flashing traffic control was not defective; 3) Marion could not establish that the flashing light proximately caused the accident.

The trial court granted the motion for summary judgment on the third ground, ruling that the flashing traffic light was not a proximate cause of the accident. The court did not address the issue of sovereign immunity. Marion appeals from this order which completely resolved the complaint as to the City. Because the court granted summary judgment, our standard of review is de novo. See Husky Rose, Inc. v. Allstate Ins. Co., 19 So.3d 1085 (Fla. 4th DCA 2009). Although the court did not rule on sovereign immunity, the City makes an argument that its decision can be affirmed on this ground as well, to which Marion has responded. Therefore, we discuss all grounds raised for the entry of final summary judgment to explain why we reverse the trial court.

[1] The City contends that it is entitled to sovereign immunity because its decision to control the intersection with a flashing light is a policy decision, not an operational one. We disagree.

Our supreme court established the contours of the waiver of sovereign immunity contained in section 768.28, Florida Statutes, in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). It held that planning level decisions by the government continue to be immune, despite the statutory waiver; otherwise, in determining liability questions the judicial branch would encroach on the other branches of government in violation of the separation of powers. The statute did, however, waive immunity for operational decisions. The court explained, “Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.” Id. at 1021.

Commercial Carrier consolidated two separate cases on petition for certiorari to the supreme court to determine the issue. In one, Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977), a defendant in an intersection collision case filed a third party complaint against Dade County alleging that Dade County had negligently maintained a traffic light at the intersection, which negligence was the cause of the accident. After establishing the planning level/operational level dichotomy for waiver of immunity, the court applied it to Cheney and held that “[m]aintenance of a traffic signal light which is in place does not fall within that category of governmental activity which involves broad policy or planning decisions. This is operational level activity.” 371 So.2d at 1022 (emphasis supplied).

The court again explained that maintenance of traffic control devices is an operational activity in Department of Transportation v. Neilson, 419 So.2d 1071, 1075 (Fla.1982):

Commercial Carrier established that discretionary, judgmental, planning-level decisions were immune from suit, but that operational-level decisions were not so immune. In applying these principles to the facts in that case, we held that the failure to properly maintain an existing traffic control device was an operational decision and suit could be filed against the governmental entity.

(emphasis in original). The court in Neilson reaffirmed its position in Commercial Carrier that the failure to properly maintain existing traffic control devices may be the basis for a suit against a governmental entity. See also Perez v. Dep't of Transp., 435 So.2d 830 (Fla.1983).

On the same day it issued Neilson, the court also decided City of St. Petersburg v. Collom, 419 So.2d 1082, 1086 (Fla.1982). The court expanded the duty of governmental entities to warn when the government creates a known dangerous condition. Acknowledging its decision in Neilson that planning level decisions of government should be immune, the court decided that there were activities of government which could lead to judicial scrutiny:

On the other hand, without substantially interfering with the governing powers of the coordinate branches, courts can require (1) the necessary warning or correction of a known dangerous condition; (2) the necessary and proper maintenance of existing improvements, as explained and illustrated in Commercial Carrier [citation omitted]; and (3) the proper construction or installation and design of the improvement plan, as explained in Neilson [citation omitted].

Id. at 1086. The court held

that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.

Id. at 1083 (first emphasis in original, second emphasis supplied). Thus, the government has both a duty to warn of dangerous conditions created by it, as well as the duty to properly maintain existing traffic control devices.

The court reiterated these principles in Palm Beach County Board of Commissioners v. Salas, 511 So.2d 544 (Fla.1987). In that case, county workers on a road realignment project blocked off a left turn lane in a busy intersection and deactivated the left turn signal. Although they provided orange cones, they did not erect any signs prohibiting left turns from the remaining lanes. Salas attempted a left turn from the right lane and was struck by another vehicle. The court ruled that the decision to block the left turn lane and deactivate the signal was an operational-level decision.

Although the county's initial decision of whether to utilize a left turn signal was a planning-level decision, once that decision was made, the county's later decision to deactivate that signal and block off the left turn lane for road maintenance was an operational-level decision. During the time its survey crew worked at the intersection ..., Palm Beach County had the duty to carry out its maintenance responsibilities in a nonnegligent manner and to warn the motoring public of any known hazards that the presence of the survey crew and the accompanying deactivation and blocking of the turn lane created.... Sovereign immunity principles will not shield the county from liability if it failed to perform that duty adequately.

Id. at 546-47 (citations omitted).

In this case, the City exercised a planning level decision in designing the intersection at Glades Road and Renaissance Way and its traffic signal. As previously noted, this was a large intersection involving multiple lanes of traffic on Glades Road as well as the lanes on Renaissance Way. Our supreme court has accepted the proposition that every intersection may be inherently dangerous. See Dep't of Transp. v. Konney, 587 So.2d 1292, 1295 (Fla.1991). Such a large intersection as...