McPhee v. Dade County

• Decision Date: 15 August 1978
• Docket Number: No. 77-1809,77-1809
• Citation: 362 So.2d 74
• Parties: Leona McPHEE, as Personal Representative of the Estate of Brenda Annette McPhee, Deceased, and on behalf of Octavian Demetrius McPhee and Gregory Terrell McPhee, surviving minor children, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and Continental Casualty Company, Appellees.
• Court: Florida District Court of Appeals

Page 74

362 So.2d 74

Leona McPHEE, as Personal Representative of the Estate of Brenda Annette McPhee, Deceased, and on behalf of Octavian Demetrius McPhee and Gregory Terrell McPhee, surviving minor children, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and Continental Casualty Company, Appellees.

No. 77-1809.

District Court of Appeal of Florida, Third District.

Aug. 15, 1978.

Marlow, Shofi, Ortmayer, Smith & Spangler, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.

Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.

Before HENDRY, BARKDULL and HUBBART, JJ.

BARKDULL, Judge.

This is an appeal by the plaintiff-appellant, Leona McPhee, as personal representative of the Estate of Brenda Annette McPhee, deceased, and on behalf of Octavian and Gregory McPhee, surviving minor children, from a final summary judgment in favor of Dade County and its insurer, Continental Casualty Company.

The decedent met her death by drowning at Virginia Beach, a County park. From the record it appears that the decedent did not know how to swim and knew there was no lifeguard present. There were no other people on the beach; at the time the accident happened the sun had gone down completely. The hours of the operation of the park were from sunrise to sunset. There were 18 X 36 signs with the warning "Caution Deep Water, Swimming Prohibited Beyond This Point" posted up and down the shoreline along the beach at the park site, approximately 50 yards apart. Plaintiff's sister testified at her deposition that she saw the warning sign, but didn't read it; that she didn't have any difficulty in seeing it but that she didn't pay any attention to it. Both the decedent and her sister were able to read and should have seen the warning. After being notified of the danger involved, the decedent chose to enter the water; her actions were the cause of her death.

The appellant contends that the County was negligent in failing to erect and maintain safety barriers in the form of fences or gates a sufficient distance in the water along the perimeter of the shoreline, to protect swimmers and bathers; in failing to inform and/or adequately warn the public of the alleged dangerous conditions; in failing to have lifeguards stationed on the beach throughout the hours that the beach was open to the public; in failing to have necessary and adequate life-saving equipment.

At the time of plaintiff's drowning the park was closed; it was after sunset; the lifeguards' duties terminated when the park closed. The appellant's contention that fences and/or barriers should have been constructed in the water is not well-taken, when viewed in light of the fact that much of the County's land abuts on the water and that citizens have a right to use the navigable waters of this State. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); City of Miami Beach v. Hogan, 63 So.2d 493 (Fla.1953); State v. T. O. L. Inc., 206 So.2d 69 (Fla. 4th DCA 1968).

From the record, the drowning was caused by the decedent's own negligence in swimming in an area after the close of the park when she, in fact, did not know how to swim. When the movant shows that a plaintiff's negligence is the Sole proximate cause of the injury, courts will grant a summary judgment in his favor. Wills v. Sears Roebuck Co., 351 So.2d 29 (Fla.1977). Dade County owed no duty that was breached and is not liable for any negligence in the case at bar.

As a defense, the County pleaded the doctrine of sovereign immunity and even if negligent would be relieved of liability because of said doctrine. ¹ In Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916), the following is found:

"While a county may, in some respects, resemble a municipality in that both organizations deal with public interests, their differences are so great that the cases discussing the latter's liability in damages for the negligent omission to perform a public duty are not analogous to those in which a liability is sought to be imposed upon a county. The one feature which sufficiently distinguishes them is that the counties are under the constitution political divisions of the state, municipalities are not; the county, under our Constitution, being a mere governmental agency through which many of the functions and powers of the state are exercised. County of San Mateo v. Coburn, 130 Cal. 631, 63 P. 78, 621. It therefore partakes of the immunity of the state from liability. Many of the powers exercised by a municipality, such as building and maintaining streets, erecting and operating water supply systems, lighting and power plants, are, in their nature and character, corporate rather than governmental. The corporation being organized voluntarily by the citizens of the locality for the purpose of local government, it is given the power and charged with the duty by the state of keeping the streets in a safe condition. 2 Dillon's Munic. Corp. (4th ed.) § 1034; City of Key West v. Baldwin, 69 Fla. 136, 67 So. 808. The citizens of a municipality have a proprietary interest in the property and funds of the municipality; the citizens of a county have not. * * * " More recently, the Supreme Court held, in Kaulakis v. Boyd, 138 So.2d 505, 507 (Fla.1962), that "Counties, * * * as political subdivisions constitute a part of the machinery of the state government. Therefore, it has been held that they partake of the sovereign immunity from liability." This immunity is embodied in Article X, Section 13, Constitution of Florida (1968).

The immunity of the County from suit is absolute. Buck v. McLean, 115 So.2d 764 (Fla. 1st DCA 1959). It makes no difference whether the activity of the County is involved in is classified as governmental or proprietary; the immunity is unqualified. Buck v. McLean, supra; Dept. of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975). The court in Buck, referring to the above-quoted passage in Keggin, stated:

"Appellants insist that the decisions of our Supreme Court in Bragg and Richter have been receded from and overruled by its decision in Hargrove. (Citation omitted). With this contention we cannot agree. The Hargrove case involved a tort action against the Town of Cocoa Beach, a municipal corporation. In holding that under the doctrine of respondeat superior a municipal corporation may be liable in tort for the negligent act of its police officer whether committed in the discharge of a governmental or proprietary function, the court receded from its former decisions holding to the contrary. There is nothing in this decision which says, or from which it can be reasonably inferred, that the rule there announced is likewise applicable to the State of Florida, or its Several counties and boards of public instructions. The broad and well defined distinction between a municipal corporation on the one hand, and a county or other agency of the State on the other, was ably discussed by our Supreme Court in the Keggin case. * * * " (emphasis added)

The liability of a county is fundamentally different from that of a municipality.

The appellant relies on several cases involving Dade County which are distinguishable. In Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965), an action was brought by a bus passenger for injuries received when the bus collided with another vehicle. At the outset, the court stated: "Metropolitan Dade County's immunity from tort liability was established by the Supreme Court of Florida in Kaulakis v. Boyd * * * ". Butts at 594. The court then went on to hold that the plaintiff, as a paying passenger on a common carrier, had the right to sue In contract for the breach of the contract of carriage, and that her action could be brought on that basis. The instant case sounds in tort.

In Department of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, supra, a case with similar facts to the case at bar, the District Court stated that under the doctrine of sovereign immunity it makes no difference whether the negligent act is committed in the performance of a governmental or proprietary function; both functions are immune. The Supreme Court of Florida agreed. Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). In discussing the difference between municipalities and the sovereignty of the State, the court stated:

" * * * Cases such as Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), this Court's landmark decision modifying the sovereign immunity of municipalities, are distinguishable precisely because they involve municipal corporations, not the state or its agencies. The governmental/proprietary distinction, which has on occasion been viewed as a test for waiver of sovereign immunity, has almost invariably been crucial Only in the cases involving municipalities. See Seligman & Beals, The Sovereignty of Florida Municipalities, 50 Fla.B.J. 338 (1976), for the view that existing precedent has led to some confusion over the viability of the distinction in the municipal area. We are not called upon today to reconcile whatever conflict in precedent may exist in that area of the law. Seligman and Beals further state, 'While the State of Florida has always enjoyed sovereign immunity with respect of the torts of state employees, municipalities have not enjoyed full derivative immunity,' and appellant has been unable to direct our attention to a single case which undermines the accuracy of that statement." (emphasis added)

The appellant seeks to rely on Butts v. Dade County, supra, asserting that in Butts the court found liability for a proprietary endeavor. While the Supreme Court noted that Butts involved a County and not a State agency, it did state:

" * * * Without expressly overruling the Butts decision, We question the wisdom of its apparent extension of the Hargrove rationale to the county level. ...