Perez v. Department of Transp., s. 62356
| Decision Date | 21 July 1983 |
| Docket Number | 62327,Nos. 62356,s. 62356 |
| Parties | Lorenzo PEREZ, et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent. Alphonso JOA, et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent. |
| Court | Florida Supreme Court |
Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Marvin Weinstein, Miami Beach, for Lorenzo Perez, et al.
R. Benjamine Reid and Patricia H. Thompson of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for Alphonso Joa, et al.
Alan E. DeSerio, Appellate Atty., Jay O. Barber, Trial Atty., and John H. Beck, General Counsel, Dept. of Transp., Tallahassee, for respondent.
These are two petitions to review one decision of the First District Court of Appeal reported as Perez v. State, Department of Transportation, 414 So.2d 544 (Fla. 1st DCA 1982). In their pleadings against the Department of Transportation, Perez and Joa raised three claims arising from an automobile accident which occurred on a bridge on the MacArthur Causeway in Miami. They alleged that the Department of Transportation was negligent (1) in designing the bridge, (2) in failing to upgrade and improve the bridge, and (3) in failing to warn motorists of a dangerous condition existing on the bridge. The trial court entered final summary judgment for the Department of Transportation, finding that the department was immune from suit on each of these grounds because each involved judgmental, planning-level decisions of government. The district court affirmed. We find conflict with our decisions in Ralph v. City of Daytona Beach, --- So.2d ----, No. 62,094 (Fla. Feb. 17, 1983); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash in part the decision of the district court, finding that the petitioners should have a further opportunity to allege that the Department of Transportation failed to warn motorists of a known dangerous condition on the bridge.
The facts, as stated in the district court's opinion, are as follows:
Jose Perez was a passenger in a vehicle driven by ... Joa on the McArthur [sic] Causeway. The Joa vehicle was traveling on a wet roadway in excess of the speed limit. Upon reaching the steel grating on the draw portion of the bridge, the vehicle suddenly made an abrupt right hand turn of nearly 90 degrees, crossed three lanes of traffic, struck the restraining curb and vaulted through the pedestrian handrail into Biscayne Bay. Perez was thrown from the car and drowned. Perez' parents sued Joa and DOT. Joa filed a third party complaint against the DOT.
We agree with the holding of the trial court and the district court that the act of designing the bridge and the failure to upgrade and improve the bridge arise at the judgmental, planning-level of government and are immune from suit under section 768.28, Florida Statutes (1975). We made it clear in Neilson that both the basic design of a roadway and decisions concerning whether or not to upgrade and improve a roadway are judgmental, planning-level functions, as that term was defined in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We note that although the petitioners have used the term "maintenance" in their complaint, it is used in the context of the department's having failed to upgrade the steel-grated portion of the bridge by installing metal studs rather than having failed to maintain the bridge as originally constructed. As we have previously held, a governmental entity can be liable with respect to maintenance where it has failed to maintain existing roads or traffic control devices in accordance with their original design. We emphasized in Neilson that a governmental entity could not be liable where the allegation of failure to maintain was "used to indicate obsolescence and the need to upgrade ...." 419 So.2d at 1078.
With regard to the allegations of failure to warn of a known dangerous condition, the Department of...
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