Payne v. Broward County

• Decision Date: 13 September 1984
• Docket Number: No. 64419,64419
• Citation: 461 So.2d 63
• Parties: James H. PAYNE, etc., et al., Petitioners, v. BROWARD COUNTY, et al., Respondents.
• Court: Florida Supreme Court

Page 63

461 So.2d 63

James H. PAYNE, etc., et al., Petitioners, v. BROWARD COUNTY, et al., Respondents.

No. 64419.

Supreme Court of Florida.

Sept. 13, 1984.

Rehearing Denied Jan. 7, 1985.

Krathen & Sperry, P.A., Fort Lauderdale, and Nancy Little Hoffmann of Hoffmann & Burris, Fort Lauderdale, for petitioners.

Susan F. Delegal, Gen. Counsel and John Franklin Wade, Asst. Gen. Counsel for Broward County, Fort Lauderdale, for respondents.

Edna L. Caruso, West Palm Beach, Florida, amicus curiae for The Academy of Florida Trial Lawyers.

EHRLICH, Justice.

This case is before us for review of three questions certified to be of great public importance. Broward County v. Payne, 437 So.2d 719 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

Seventeen-year-old Allison Payne was fatally injured October 24, 1978, as she tried to cross Rock Island Road walking home from school. Rock Island Road was a two-lane road extending north from Sample Road. Coral Springs High School was located on the northeast corner of the intersection. Two sidewalks paralleled Sample Road, one running along the road, the other about 125 feet to the north, on the north edge of a faculty parking lot. Allison had walked along the north sidewalk, which ended at Rock Island Road, and it was at the end of this walk where she was killed. The evidence was inconclusive as to whether Allison had looked toward the intersection, where the truck came from, before she stepped into the road.

Rock Island Road was planned as a four-lane thoroughfare, but was opened after the first two lanes were completed. Broward County, which was building Rock Island Road, planned various pedestrian control measures for the completed project, such as crosswalk markings, rerouted sidewalks, and traffic signals, but none of these measures had been implemented at the time of the accident. Coral Springs city officials had been asking the county since 1976 to install traffic signals, but, when signals were still not installed at the beginning of the 1978 school year, Coral Springs police began to provide traffic control during school hours. At the time of the accident, one officer was directing traffic, another was monitoring the intersection for traffic violators, and a "community service aide" was at the intersection to help students cross the street. The pick-up truck which struck Allison had turned left off Sample Road, north onto Rock Island Road.

Allison's parents sued Broward County, the county school board, the city, the driver and the owner of the truck, and the contractor that built Rock Island Road. The latter three parties were dismissed during trial, and a directed verdict was entered in favor of the school board. The jury returned a verdict finding the city fifty percent negligent, the county forty percent negligent, and Allison ten percent negligent. The county appealed to the Fourth District, which consolidated the case with an appeal by the Paynes on the directed verdict for the school board.

The district court opinion addressed the question of whether the county's sovereign immunity from liability for failure to install the traffic light extended from the time the decision was made to install the light to the time of the accident. The court held that sovereign immunity did apply, under this Court's decision in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). However, based on this Court's continued adherence to the principle that a governmental entity has a duty to warn of a known trap in Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983), the district court certified three questions. The district court opinion did not address the appeal on the directed verdict for the school board, and this Court granted the board's motion to dismiss it as a party to the proceedings in this Court.

The certified questions are:

I. Was this [the opening of the Rock Island Road intersection] the creation of the kind of known danger which requires a warning or an aversion of the danger?

II. Did the decision once made of the need to install the traffic light carry with it the concomitant duty to warn until such time as the light was operational?

III. Finally, as the Supreme Court required in Harrison, did the instant complaint adequately allege the dangerous condition requiring warning of the danger?

437 So.2d at 720.

We answer the first two questions in the negative, and decline to answer the third as moot.

Initially, we note that a governmental entity is always protected by sovereign immunity from liability for the decision to create or open a road. Petitioner argues that the county negligently opened Rock Island Road before center lines or other safety devices were in place. The record shows that there may have been some confusion between county departments, resulting in opening of the road before the center lines had been painted, but the record also clearly shows that the decision to open the road was made by those with authority to make such a decision. Regardless of whether the decision to open the road was unwise, the purpose of this Court's distinction between planning-level and operational-level functions is to prevent judicial intrusion into planning-level decisions. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We have previously held that "the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning-level type." Neilson, 419 So.2d at 1077. However, even when a governmental act is subject to sovereign immunity, liability may arise from a planning-level decision when that decision creates a hidden trap. "[W]hen 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." City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982). There is no question that the county created and was on notice of the conditions at the intersection and the surrounding area. The only question, then, is whether the conditions created a known danger not readily apparent to potential victims or constituted a hidden trap for pedestrians. We conclude that they did not.

Although the parties and the district court focus on the lack of a stoplight at...