Slemp v. City of North Miami

• Decision Date: 10 November 1987
• Docket Number: No. 85-2796,85-2796
• Citation: 515 So.2d 353,12 Fla. L. Weekly 2602
• Parties: 12 Fla. L. Weekly 2602 Fletcher SLEMP and Dora Slemp, Appellants, v. CITY OF NORTH MIAMI, Appellee.
• Court: Florida District Court of Appeals

Page 353

515 So.2d 353

12 Fla. L. Weekly 2602

Fletcher SLEMP and Dora Slemp, Appellants, v. CITY OF NORTH MIAMI, Appellee.

No. 85-2796.

District Court of Appeal of Florida,

Third District.

Nov. 10, 1987.

Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellants.

Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON REHEARING EN BANC

HENDRY, Judge.

We have taken this case en banc to consider appellee City of North Miami's argument that the original panel of this court should have affirmed the trial court's granting of a summary judgment based upon the doctrine of sovereign tort immunity. We substitute the following discussion for the original opinion published at 11 F.L.W. 1489.

This is an appeal by the plaintiffs below, Fletcher and Dora Slemp, from an adverse summary judgment terminating their claim against the City of North Miami (City), based upon the doctrine of sovereign immunity. For reasons more fully developed below, we affirm.

This case arose as the result of the flooding of the Slemps' home in the City of North Miami due to heavy rains on June 23, 1982. ¹ The City had previously installed a storm sewer pump system which was designed to alleviate flooding problems in the area. The record reflects that the system, which was supposed to operate automatically, had to be operated manually on numerous occasions because it was not functioning properly. However, because the City kept no records, it was not certain whether the pump was operating properly on the date in question.

The Slemps brought an action against the City claiming that the City's negligent maintenance and operation of the pump system caused their home to be flooded. They alleged that their home flooded because the City's storm sewer pipes failed to drain off rainwater after a rainstorm. The City moved for summary judgment, and the trial court granted the motion and entered summary judgment on the basis of sovereign immunity.

The issue on appeal is whether the City is immune from suit, as a matter of law, under the doctrine of sovereign immunity.

The City contends that it is immune from suit as the City does not owe any statutory or common law duty to the Slemps to provide a storm sewer system. See Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985). Thus, it argues that since it had no duty to provide a storm sewer system, it could not be liable even if it was negligent in maintaining the system.

This case is indistinguishable from the "fire protection" or "crime prevention" cases cited by the City, wherein the governmental entity was held immune from suit. City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla.1985) (supreme court held that no common law duty existed to provide fire protection and hence no tort liability could arise even though the negligence occurred on an operational level); Reddish v. Smith, 468 So.2d 929 (Fla.1985) (department of corrections held immune from liability where it had negligently classified a prisoner, allowing him to escape and injure the plaintiff); Everton v. Willard, 468 So.2d 936 (Fla.1985) (tort liability does not arise when a governmental entity negligently allows a drunk driver to injure another person, even if the governmental entity's negligence occurs at the operational level).

In the case at bar, the Slemps alleged that the city storm sewer system, due to negligent maintenance, did not function and thus failed to protect the Slemps from a rainstorm. They contend that the City, under the facts of this case, has the same liability as an individual for the negligent maintenance of its property which results in harm to a plaintiff. We cannot agree.

As noted in Trianon, 468 So.2d at 919:

How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of goverance, for which there has never been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials, as well as the discretionary authority given fire protection agencies to suppress fires. This same discretionary power to enforce compliance with the law is given to regulatory officials such as building inspectors, fire department inspectors, health department inspectors, elevator inspectors, hotel inspectors, environmental inspectors and marine patrol officers.

On the other hand, however, once a governmental entity builds or takes control of property or an improvement, it has the same common law duty as a private person to properly maintain and operate the property. Trianon, 468 So.2d at 921.

Therefore, if the Slemps had alleged that the City's storm sewer system itself had flooded their home, for example, by backwashing water into their home, liability would arise under Trianon, since the City would have had a common law duty to properly maintain and operate the storm sewer system so that it would not have caused them damage. See Butler v. Sarasota County, 501 So.2d 579 (Fla.1986) (public owner did not create the specific dangerous condition but did create a designated area where the dangerous condition existed); Department of Transp. v. Webb, 438 So.2d 780 (Fla.1983) (department's negligent failure to maintain railroad crossing and failure to warn motorists of a known dangerous condition constituted negligent, tortious conduct); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982) (governmental entity has a duty to warn of or correct dangerous conditions that the entity created, and knew to be dangerous, and which were not readily apparent to those persons who might sustain injury as a result of them).

However, in this instance, the Slemps merely alleged that the City was liable for the flooding in 1982 because it breached its duty to properly maintain its sewage pumps "so as not to cause excess water to gather in the streets."

There has never been a common law duty of care to individual property owners to protect against flooding due to a natural occurrence. See Baldwin v. City of Overland Park, 205 Kan. 1, 468 P.2d 168, 173 (1970) (court held that the city's failure to maintain a drainage system was not actionable); Board of Trustees v. Chyle, 256 Ky. 283, 75 S.W.2d 1039 (1934) (city could not be liable for negligence in its efforts to control surface water unless it artifically collected the surface water and diverted it onto plaintiff's property); Wright v. City of Rock Island, 133 Ill.App.2d 763, 273 N.E.2d 83 (1971) (city not liable for failure to successfully drain off heavy rainfall.)

Moreover, we can find no statutory duty of care upon which to base governmental liability for such conduct. See, e.g., City of Daytona Beach, 469 So.2d at 122 (there has never been a common law nor statutory duty of care to individual owners to provide fire protection services); Trianon, 468 So.2d at 917 (for there to be governmental tort liability, there must either be an underlying common law or statutory duty of care with respect to the alleged negligent conduct).

The decision to install pumps of limited capacity was a planning level decision for which sovereign immunity applies. See, e.g., Trianon, 468 So.2d at 912; Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). The drainage of surface water by a governmental entity is an inherent police function which is immune from liability. See Hutchinson v. City of Lakewood, 125 Ohio St. 100, 180 N.E. 643 (1932) (surface water drainage is a fundamental police function since such services are established for the express purpose of preserving the public health).

Under the rule enunciated in Trianon,

there is no governmental tort liability for the action or inaction of governmental officials or employees in carrying out the discretionary governmental functions [of enforcing the laws and protecting the public safety] because there has never been a common law duty of care with respect to these ... police power functions, and the statutory waiver of sovereign immunity did not create a new duty of care.

468 So.2d at 921.

Therefore, we find that under the facts of the case at bar, the City is entitled to judgment as a matter of law based upon the doctrine of sovereign tort immunity. For the foregoing reasons and based upon the authorities cited, the final judgment appealed is affirmed.

Due to our holding, we do not reach the other issue on appeal.

Affirmed. ²

SCHWARTZ, C.J., and BARKDULL, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ., concur.

SCHWARTZ, Chief Judge (specially concurring).

I think that the authorities Judge Nesbitt relies upon to support the view that liability arises when a governmental entity assumes a duty and then negligently discharges it invariably involve actual or implied reliance upon that performance or injury affirmatively caused by it. ¹ Feldstein v. City of Key West, 512 So.2d 217, 219-20 (Fla. 3d DCA 1987). Thus, if the Slemps had built or bought their home in the particular location or refrained from taking steps to protect it from storm water because of the reasonable belief that the city would take care of the overflow; or if the city had itself caused the damage to the home, I would agree with reversal. See Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 923 (Fla.1985) (McDonald, J., concurring). But none of this is true in this case. The only thing the city allegedly did wrong was fail to remove what nature put there. Since there is no indication that, if the city had done nothing at all, the Slemps would have been in any different position, I thoroughly agree with Judge Hendry's...