Neilson v. Department of Transp., 78-318
| Decision Date | 02 November 1979 |
| Docket Number | No. 78-318,78-318 |
| Citation | 376 So.2d 296 |
| Parties | William M. NEILSON, Kim L. Neilson, and Robert F. Neilson, minors, by and through their father and next friend, William E. Neilson and William E. Neilson, Individually, and Patricia P. Neilson, Appellants, v. DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida; and Hillsborough County, a political subdivision of the State of Florida, Appellees. |
| Court | Florida District Court of Appeals |
Joel D. Eaton and Walter H. Beckham, Jr. of Podhurst, Orseck & Parks, Miami, and Simons & Schlesinger, Fort Lauderdale, for appellants.
George K. Rahdert and Joseph W. Clark of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee Hillsborough County.
Alan E. DeSerio, Larry K. White, and H. Reynolds Sampson, Tallahassee, for appellee Department of Transportation.
An intersection collision in the City of Tampa led to this action seeking compensation for personal injuries and property damage. The complaint alleged negligence on the part of certain individual defendants as owner and operator of one of the vehicles involved in the accident. In addition, the City of Tampa, the County of Hillsborough and the Florida Department of Transportation were also joined as defendants and collectively charged with negligence in designing constructing, maintaining and controlling the intersection, which was allegedly hazardous to motorists.
On their motions, Hillsborough County and the DOT were dismissed from the action on the ground that they were immune because their allegedly negligent acts were "governmental" in nature and no "special duty" had been either alleged or shown to be owing to plaintiffs. We reverse that order.
The concept on which appellees were released from the case has now been expressly disapproved by our supreme court. See, Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So.2d 1010 (Fla.1979), declaring that the doctrine of governmental immunity was abolished in this state when Section 768.28, Florida Statutes became effective. All units of government are now liable for their tortious conduct.
There are, of course, certain functions of government which do not give rise to liability because they are discretionary. By definition such acts cannot be tortious because no breach of duty can be established. Commercial Carrier/Cheney, supra, adopted a comprehensive test for determining whether the alleged misconduct of a governmental entity...
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Department of Transp. v. Neilson
...the suit on the ground they were immune from this type of action. The Second District Court of Appeal in Neilson v. Department of Transportation, 376 So.2d 296 (Fla. 2d DCA 1979), remanded the case to the trial court for reconsideration in view of our intervening decision in Commercial Carr......
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