Modlin v. City of Miami Beach

• Decision Date: 28 April 1967
• Docket Number: No. 34865,34865
• Citation: 201 So.2d 70
• Court: Florida Supreme Court
• Parties: Max MODLIN, husband and surviving spouse of Celia Modlin, Deceased, Petitioner, v. The CITY OF MIAMI BEACH, a municipal corporation, Respondent.

Page 70

201 So.2d 70

Max MODLIN, husband and surviving spouse of Celia Modlin, Deceased, Petitioner, v. The CITY OF MIAMI BEACH, a municipal corporation, Respondent.

No. 34865.

Supreme Court of Florida.

April 28, 1967.

Rehearing Denied June 12, 1967.

Nichols, Gaither, Beckham, Colson & Spence, Robert Orseck and Alan R. Schwartz, Miami, for petitioner.

West, Feder & Goldman, Miami, for respondent.

O'CONNELL, Justice.

The District Court of Appeal, Third District, has certified its decision, Modlin v. Washington Ave. Food Center, reported at 178 So.2d 596 as involving a question of great public interest. We agree that the question involved is of great public interest. We also agree with the conclusion reached by the district court, though we reach this result by different reasoning than apparently prevailed there.

Petitioner's wife was crushed to death by an overhead storage mezzanine which collapsed while she was shopping in a retail store. Petitioner instituted this action to recover for her wrongful death, naming as defendants the owner of the building, the contractor who had constructed the mezzanine some five years previously, and the respondent city. The complaint against this city alleged the negligent performance of an inspection of construction in progress undertaken by it, with the resulting failure to discover the defect that eventually caused the collapse of the mezzanine. The trial judge assumed that there were sufficient facts upon which a jury could find that the city inspector had been negligent in his inspection, but nevertheless granted summary judgments in favor of the city and the owner of the building.

On appeal, the District Court of Appeal, Third District, reversed the summary judgment that had been awarded to the owner, but affirmed that granted to the city. Only that portion of the decision relating to the question of the city's liability was included in the district court's certification, and our decision herein will be similarly limited.

The district court, the petitioner, and the respondent all argue from their reading of our decision in Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, 60 A.L.R.2d 1193. It follows that our decision and opinion in that case must provide the starting point for our discussion. The appellant in Hargrove sought damages from the city for the negligence of its jailor in leaving the jail unattended over night, with the result that her husband, who was incarcerated during helpless intoxication, was suffocated by smoke which filled the cell during the night. Our specific holding in the Hargrove case was contained in the following excerpt:

'We therefore now recede from our prior decisions which hold that a municipal corporation is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior.'

The foregoing positive holding of the Hargrove case was immediately followed by this caveat, which is equally important here:

'We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla.1953, 65 So.2d 54, 37 A.L.R.2d 691.'

The district court obviously concluded that the municipal activity here involved fell within the Hargrove caveat. Said the court:

'The enactment of regulations requiring buildings of a reasonably safe construction is certainly an exercise of the municipality's legislative powers. As indicated by the Hargrove decision, the enforcement of these regulations is an exercise of the legislative, judicial, quasi-legislative, or quasi-judicial function. We conclude that a failure to inspect, or a negligent inspection, is part of the enforcement process.'

The respondent, whose position was adopted by the court below, also bases his argument in support of the district court's opinion on the above quoted dictum in Hargrove. Respondent argues convincingly that if the examination of building plans, which underlies a grant or denial of a building permit, comes within the area of immunity, surely the physical examination of the building itself, which underlies the issuance or denial of a certificate of occupancy, does also.

However, reasonable though respondent's reliance on the Hargrove dictum may have been, we are forced to hold that it is nonetheless misplaced. The district court's opinion recognized what is really quite apparent--that both the issuance of building permits and the subsequent inspection of construction in progress constitute enforcement of the building code. However, since enforement is typically the task of the executive, it can hardly be viewed as falling within the area of municipal tort immunity reserved by the Hargrove caveat, i.e., judicial, quasi-judicial, legislative and quasi-legislative functions.

Inasmuch as the basis of the suit in Akin v. City of Miami, Fla.1953, 65 So.2d 54, was the refusal of the city to issue a building permit, a part of the enforcement process, we now detect that our citation of Akin as illustrating the kind of municipal function that would continue to fall within the immunity was not proper. It led the district court in this case to give an improper interpretation to the Hargrove decision. In an effort to correct our error and the resulting confusion, we deem it advisable to attempt to define more clearly the boundary of remaining municipal tort immunity. As noted above, the Hargrove decision specifically reserved municipal tort immunity in the exercise of legislative, judicial, quasi-legislative, and quasi-judicial functions. Because private persons and corporations do not exercise legislative or judicial functions, this means that the tort liability of municipal corporations may now be equated with that of private corporations.

The Hargrove specification of the legislative and judicial functions as constituting the area of continuing immunity obviously implies that the performance of the executive or administrative function will constitute the area of potential liability. Therefore, what is most needed is a definition of the distinction between legislative and judicial functions, on the one hand, and executive (or administrative) functions, on the other, which will assist in determining whether particular functions fall on one side or the other of the boundary line between immunity and liability.

The distinction between legislative action, on the one hand, and executive and judicial action, on the other, is not difficult to define. It is sufficient for present purposes to say that the former is typically prospective and nondiscriminatory, whereas the latter operate retroactively and discriminatorily. In other words, legislative action prescribes a general rule for future operation, whereas judicial and executive action is typically concerned with applying the general rule to specific situations or persons.

The distinction between judicial and executive action is rather more subtle and therefore more difficult to define. However, we find guidance here in prior decisions, especially those relating to the availability of common law certiorari for the review of administrative action. Since common law certiorari is appropriate to the review of judicial or quasi-judicial action, but not of legislative or executive (or administrative) action, it was necessary to make this distinction in those cases.

In West Flagler Amusement Co. v. State Racing Commission, 122 Fla. 222, 165 So. 64, the question was whether an order of the commission revoking a permit and license to conduct dog races on the ground of alleged non-payment of fees was reviewable by certiorari. Although the court's discussion focussed on the distinction between quasi-legislative and quasi-judicial functions, the opinion did enunciate a definition of the judicial function that can be applied to the question under discussion. Said the court,

'(T)he test of the quasi judicial function (is) whether or not the statutory tribunal had exercised a statutory power given it to make a decision having a judicial character or attribute and consequent upon some notice or hearing provided to be had before it as a condition for the rendition of the particular decision made.'

In DeGroot v. Sheffield, Fla.1957, 95 So.2d 912, this court was faced with the task of distinguishing between executive and judicial or quasi-judicial power and action. We therefore explained that a power authorized to be exercised on the personal judgment of the acting authority is purely executive, but that where notice and hearing are required and action is based upon the showing made at the hearing the action is judicial or quasi-judicial.

In Bloomfield v. Mayo, Fla.App.1960, 119 So.2d 417, the District Court of Appeal, First District, was confronted with the question whether an order of the commissioner of agriculture denying an application for registration of a pesticide was reviewable by certiorari. It concluded:...