Shealor v. Ruud, 2164
| Decision Date | 07 April 1969 |
| Docket Number | No. 2164,2164 |
| Parties | Robert H. SHEALOR, by his next friend and natural guardian, Walter H. Shealor, and Walter H. Shealor, individually, Appellants, v. L. O. RUUD, a/k/a Lester Ruud, and Florence Ruud, and the City of Winter Park, a municipal corporation organized and existing under the laws of the State of Florida, Appellees. |
| Court | Florida District Court of Appeals |
George Adler and Irvin A. Meyers, of Meyers, Mooney & Langston, Orlando, for appellants.
Monroe E. McDonald and Wilson Sanders, of Sanders, McEwan, Schwarz & Mims, Orlando, for appellees.
Appellants-plaintiffs, Robert H. Shealor, a minor, by this next friend and natural guardian, Walter H. Shealor, and Walter H. Shealor, individually, appeal from a final judgment entered on the pleadings in favor of the appellee-defendant, City of Winter Park, in an action for damages resulting from an auto train collision occurring in the City of Winter Park. We reverse.
The plaintiffs' amended complaint against the defendant-city and others, omitting the formal parts and those parts of the complaint which are not necessary for the determination herein, alleged in substance that the defendant-city was negligent in the following particulars:
'22(e) By planning and thereafter providing and maintaining a railroad crossing sign at a height of 16 feet 2 inches, a distance of 102 feet west of said crossing, said sign being a flashing amber light and placed in a direct line of vision and at the same height as other flashing amber lights located at the intersection of Park Avenue and Morse Boulevard and at the intersection of Morse Boulevard and New York Avenue in said defendant City, thereby being misleading, confusing, a nuisance, and a trap to drivers of automobiles traveling east on said Morse Boulevard, as same was misleading and confusing to said James Finnie at the aforesaid date, time and place of aforesaid accident.'
(James Finnie was the driver of the car in which the minor plaintiff was passenger.)
The complaint further asserts that the defendant-city assumed a duty to the minor plaintiff in the following language:
'23(e) That prior to and at the time of the accident alleged herein the said defendant City, if not otherwise owing a duty to said minor plaintiff to provide proper, adequate and safe warnings of said Atlantic Coast Line Railroad Company's aforesaid crossing at Morse Boulevard did nevertheless assume such duty by planning, undertaking and providing warnings at said crossing in the manner heretofore alleged.
Exhibits G-1 and G-2 1 were attached to the complaint and made a part thereof.
The defendant answered, stating in essence as an affirmative defense that the actual omissions to act on the part of the city as alleged in the complaint were done or not done by the defendant-city acting by and through its authorized governing body, the City Commission of the City of Winter Park, in the exercise of a legislative or quasi-legislative function of the governing body of the City of Winter Park, and by reason therefor the defendant, a municipal corporation, is immune from suit by the present plaintiffs for the damages alleged in the amended complaint, and the plaintiffs are by reason thereof precluded from recovery.
At this state of the proceedings the city then moved for judgment on the pleadings, setting forth:
The trial court granted defendant-city's motion and entered the final judgment appealed.
The question for our determination is whether or not the amended complaint on its face was insufficient as a matter of law to state a cause of action; or as stated another way, was the amended complaint legally sufficient to withstand a motion for judgment on the pleadings.
A motion for a judgment on the pleadings is proper after the pleadings are closed and within such time as not to delay the trial. Rule 1.140(c), F.R.C.P., 30 F.S.A. The pleadings are closed when the answer has been filed if it does not contain a counterclaim or crossclaim, unless the court has ordered a reply to an answer. If a counterclaim or a crossclaim has been filed, there must be a reply or an answer, respectively. Riverside Bank v. Florida Dealers and Growers Bank, Fla.App.1963, 151 So.2d 834.
In a motion for judgment on the pleadings the moving party admits for the purpose of the motion the facts well pleaded by his adversary despite their denial in the movant's pleadings. And the movant also admits the untruth of his own allegations which have been denied by his adversary. Greater Miami Telephone Answering Service v. A-1 Answering Service, Fla.App.1962, 141 So.2d 619. Averments in a pleading to which no responsive pleading is required are taken as denied or avoided. Rule 1.110(e), F.R.C.P.
Traditionally, municipal corporations have been held immune from suit for tortious acts or omissions connected with the performance of their governmental functions. 18 McQuillin, Municipal Corporations § 53.25(3d ed. 1963).
Florida has by judicial decision discarded the traditional governmental-proprietary distinction and held that its municipalities may be liable for negligent performance of governmental functions. Hargrove v. Town of Cocoa Beach, Fla.1967, 96 So.2d 130. In obliterating the governmental-proprietary distinction underlining the municipal immunity doctrine, the supreme court felt that the common law maxim which had supported the distinction, i. e., 'The king can do no wrong,' is an anachronistic concept and it specifically rejects the argument that it is better for an individual tosuffer a grievous wrong than to impose liability on the people vicariously. The supreme court stated that the doctrine of respondeat superior is applicable. It did, however, confine its holding to negligent acts. The court expressly rejected municipal liability for torts occurring in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.
Since 1815 the law of this jurisdiction had imposed liability upon municipalities for damages resulting from the negligent performance of proprietary functions. The Hargrove specifications of...
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