State Dept. of Transp. v. Kennedy
| Citation | 429 So.2d 1210 |
| Decision Date | 25 February 1983 |
| Docket Number | No. 82-125,82-125 |
| Parties | STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Sarah Jane KENNEDY, Appellee. |
| Court | Florida District Court of Appeals |
H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
Bernard C. Silver, Tampa, for appellee.
This is an appeal from a judgment in favor of appellee for damages suffered when she tripped and fell over iron rods extending over a sidewalk located on a State of Florida road right of way and maintained by appellant, Department of Transportation. We affirm.
The sidewalk in question was located adjacent to a parking lot where parking bumpers had eroded, leaving exposed reinforcing rods. Appellee's complaint alleged that appellant negligently maintained the sidewalk by allowing a reinforcing rod to extend over the sidewalk, causing her to trip and fall and sustain injuries.
Appellant's policy for maintenance of sidewalks was to rely on complaints to the Department and to have maintenance crews perform occasional unscheduled inspections. Appellant maintains it possessed the discretion to adopt this policy, and there is no evidence it improperly carried out the adopted policy. Therefore, it concludes this type of discretionary decision is immune from tort liability under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).
This appears to be an argument similar to that which our sister court faced in Foley v. Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982). The complaint in Foley alleged negligence on the part of DOT in allowing a culvert to become obscured by weeds and grass and in failing to replace a missing reflector along a state road right of way. A motorcycle struck the unmarked culvert, resulting in permanent injury to the driver and his passenger. The first district concluded that mowing grass and maintaining existing warning devices along a roadway fell within the definition of maintenance as contemplated in Commercial Carrier and Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982). The court stated, "We do not feel that governmental immunity can be invoked by simply showing that DOT formulated and adhered to a schedule of road maintenance at the accident site." At 980.
We agree with the reasoning of the first district. In Neilson, the supreme court reaffirmed its holding in Commercial Carrier that failure to properly maintain existing traffic control devices and existing roads may be the basis of a suit against a governmental entity. In our opinion, maintenance of an existing sidewalk is no different. Governmental immunity cannot be invoked simply because appellant adopted and followed a maintenance policy.
Appellant also argues that the evidence presented was insufficient to establish that it had notice of the condition of the sidewalk. Appellant concedes that express actual notice is not...
To continue reading
Request your trial
-
Howlett Howlett v. Rose
...lots and other facilities. See Daniele v. Board of County Comm'rs, 375 So.2d 1 (App. 4th Dist.1979); State Department of Transportation v. Kennedy, 429 So.2d 1210 (App. 2d Dist.1983) (maintenance of a sidewalk); Pitts v. Metropolitan Dade County, 374 So.2d 996 (App. 3d Dist.1978) (negligenc......
-
Armas v. Metropolitan Dade County, 81-2598
...an immunized discretionary or policy decision. It is clear, however, as held in both State of Florida, Department of Transportation v. Kennedy, 429 So.2d 1210 (Fla. 2d DCA 1983) and Foley v. State, Department of Transportation, 422 So.2d 978 (Fla. 1st DCA 1982), with which we agree, that th......
-
Bovio v. City of Miami Springs
...sign, Armas v. Metropolitan Dade County, 429 So.2d 59 (Fla. 3d DCA 1983); iron rods extending over sidewalk, State Dept. of Transp. v. Kennedy, 429 So.2d 1210 (Fla. 2d DCA 1983). The above conditions are wholly dissimilar to a newspaper dispenser positioned on a sidewalk along with other ne......
-
Bryan v. State, Dept. of Business Regulation
...419 So.2d 1081 (Fla.1982); Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983); State Department of Transportation v. Kennedy, 429 So.2d 1210 (Fla. 2nd DCA 1983). In carving out of Section 768.28, Florida Statutes, an exception for the statutory waiver of sovereign immunity, the......