Mathews v. City of St. Petersburg, Fla., 80-1379
| Decision Date | 08 July 1981 |
| Docket Number | No. 80-1379,80-1379 |
| Citation | 400 So.2d 841 |
| Parties | Lula Mae MATHEWS, as personal representative of the Estate of Kasandra Anitra Swain, deceased, Appellant, v. CITY OF ST. PETERSBURG, FLORIDA, a Municipal Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Garold L. Morlan, Tampa, for appellant.
Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee.
Lula Mae Mathews, as personal representative of the estate of Kasandra Anitra Swain, deceased, appeals the dismissal of her complaint for wrongful death against the City of St. Petersburg. We reverse.
The complaint alleged that the deceased (appellant's daughter), a twenty-month-old child, fell into Booker Creek while playing in a nearby park, that she sustained injuries in this fall which resulted in her death approximately a month later; that the sides of the creek had been encased in concrete by the city so that the banks were vertical; that this encasement rendered escape by a child impossible and seriously impeded rescue; and that although a series of holes had been drilled along the top edges of the encasement in such a manner that they would support a fence or other barrier, no fence or barrier had been installed along the creek to prevent children from falling into or gaining access to the creek, notwithstanding the city's knowledge that children frequently play in the park in close proximity to the creek.
The city moved to dismiss the complaint. The trial court granted the motion with leave to amend, ruling that the city's decisions to encase the creek with vertical concrete sides and not to install fences or barriers along the sides of the creek were discretionary, planning level, rather than operational level, decisions within the meaning of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). When appellant waived her right to amend, the trial court granted the city's motion to dismiss the complaint with prejudice. This appeal followed timely.
Commercial Carrier held that governmental planning level decisions remain immune from tort liability, notwithstanding the waiver of sovereign immunity contained in section 768.28, Florida Statutes (1979), "because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance." Id. at 1022. However, this court explained in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.2d DCA, 1981...
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