Stark v. Bailey Drainage Dist., 4-86-0841

• Decision Date: 08 April 1987
• Docket Number: No. 4-86-0841,4-86-0841
• Citation: 12 Fla. L. Weekly 970,505 So.2d 566
• Parties: 12 Fla. L. Weekly 970 Evelyn STARK, as Personal Representative of the Estate of Steven Aric Stark, deceased, Appellant, v. BAILEY DRAINAGE DISTRICT, a political subdivision of the State of Florida and Broward County, Florida, a political subdivision of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 566

505 So.2d 566

12 Fla. L. Weekly 970

Evelyn STARK, as Personal Representative of the Estate of Steven Aric Stark, deceased, Appellant, v. BAILEY DRAINAGE DISTRICT, a political subdivision of the State of Florida and Broward County, Florida, a political subdivision of the State of Florida, Appellees.

No. 4-86-0841.

District Court of Appeal of Florida Fourth District.

April 8, 1987.

Rehearing Denied May 4, 1987.

Michael D. Stewart of Michael D. Stewart, P.A., Fort Lauderdale, for appellant.

Harry S. Raleigh, Jr., and Bryan Duke of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellee-Bailey Drainage Dist.

Susan F. Delegal, Alexander Cocalis, and Catherine Brown, Fort Lauderdale, for appellee-Broward County.

ANSTEAD, Judge.

In this action for wrongful death, the trial court entered a summary final judgment in favor of appellees, both governmental bodies, on the grounds that an action against them for maintaining a known dangerous intersection without warning signs was barred by the doctrine of sovereign immunity. We reverse but certify an issue of great public importance.

In Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982) the supreme court held that governmental decisions relating to the installation of appropriate traffic control methods and devices at intersections fall in the category of discretionary, planning-level decisions immune as a matter of law from tort liability. However, the opinion also holds that if the Neilson complaint had alleged "a known trap or dangerous condition for which there was no proper warning, such an allegation would have stated a cause of action." Id. at 1078. Indeed, the Neilson court directed the trial court to give the Neilsons an opportunity to amend their complaint to add such allegations. In Department of Transportation v. Webb, 438 So.2d 780 (Fla.1983) a judgment against the Department was approved for "the failure to place warning signs at a railroad crossing which is known to be dangerous...." Id. at 781. In Payne v. Broward County, 461 So.2d 63 (Fla.1984), while upholding a decision for the county on the facts, the court noted that although the decision to install traffic control devices is immune, that "decision carries with it the concomitant duty to warn ... if the absence of such traffic light creates a trap or known danger not readily apparent to persons in or about the intersection." Id. at 66. Also see Department of Transportation v. Brown, 497 So.2d 678 (Fla. 4th DCA 1986).

The appellant asserts that the appellees actually knew this unmarked intersection was dangerous because two similar accidents happened before Steven Stark was killed and numerous complaints were made to the appellees about other near-accidents. There is also evidence in the record that the visibility of motorists approaching the intersection was impaired by reason of the growth of vegetation in the right-of-way, vegetation that had been trimmed and maintained by one of the governmental entities in the past. Notwithstanding their knowledge of the actual danger posed by the intersection, the governmental entities failed to warn motorists of the danger....