Trianon Park Condominium Ass'n, Inc. v. City of Hialeah

Decision Date10 August 1982
Docket Number81-1634,Nos. 81-1626,s. 81-1626
PartiesTRIANON PARK CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. CITY OF HIALEAH, a Municipal corporation, Appellee. CITY OF HIALEAH, etc., Appellant, v. TRIANON PARK CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
CourtFlorida District Court of Appeals

Becker, Poliakoff & Streitfeld and Alan E. Tannenbaum, Fort Lauderdale, for appellant/appellee, Trianon Park Condominium Ass'n, Inc.

Ralph F. Miles, Robert J. Stampfl, Hialeah, Claudia B. Greenberg and Richard H.W. Maloy, Coral Gables, Holland & Knight and Chesterfield Smith and Marty Steinberg and Andrea Simonton, Miami, for appellee/appellant, City of Hialeah.

Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.

HENDRY, Judge.

These consolidated appeals arise from a final judgment entered upon a jury verdict in favor of the Condominium Association (Association), plaintiff below, in a negligence action against the City of Hialeah (City) for acts and omissions relating to inspection and certification of construction of the condominium building.

A pretrial stipulation between the Association and the City set forth the following agreed facts: the City of Hialeah adopted the South Florida Building Code (Code) in 1958; the Association is a non-profit corporation created to operate the condominium comprised of sixty-five units; the original developer of the condominium applied for a The Association filed a complaint in 1979, alleging three counts against Flagship for breach of warranty, negligence and strict liability, and one count against the City for negligence in the "operational" function of approving plans, inspecting construction for compliance with plans and with the Code, and issuing the certificate of occupancy. Prior to trial, the Association settled with Flagship for $153,000. The court approved the settlement and certified the unit owners as a class under Florida Rule of Civil Procedure 1.220, 1 for purposes of maintaining a class action.

building permit in 1972 and the City later approved the application in the name of a new developer; work on the original plans was abandoned; in November, 1975, Flagship National Bank succeeded in interest as the owner of the condominium; revised plans dated August, 1975, were submitted and construction was re-started in November, 1975, and continued until July, 1976, during which time City's building inspectors made mandatory inspections required by Code; in July, 1976, the City issued a certificate of occupancy, and in April, 1979, after a rainstorm, the roof of the building fell in resulting in damage to the interiors of forty-nine units; the City was given notice of the existence of certain construction defects and deficiencies.

At trial, the Association presented evidence of damages, including roof defects, structural flaws in unit entrance alcoves, excessive combustibility of exterior walls, deficient fire resistivity of separation between garage and living units, defective expansion joint construction, a combustible roof hatch and other significant defects and deficiencies in construction. Further evidence was presented showing that each of the defects for which damage was claimed was in violation of the Code and/or building plans. Evidence was also presented regarding the purposes and requirements of the Code and duties of building officials thereunder. Proof of negligence related to the City's failure to properly enforce Code requirements regarding the above-listed construction defects and others, and allowing deviations from building plans.

The jury returned a verdict for the Association in the amount of $290,938.84, against which the trial court set off $153,000 for the Flagship settlement. Judgment was then entered pursuant to section 768.28, Florida Statutes (1975), which provides for the waiver of sovereign immunity by the state, its agencies and subdivisions in tort actions, and the remaining sum of $137,938.84 was reduced to $50,000 in accordance with section 768.28(5). The City appeals the final judgment of liability and the Association, in turn, appeals reduction of the judgment to $50,000.

The City's appeal addresses the issue of the scope of sovereign immunity of a municipality. The City's primary contention is that the acts or omissions alleged in the complaint are "planning" functions for which it is immune from tort liability.

In the landmark case, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), the Florida Supreme Court analyzed the extent to which section 768.28, Florida Statutes (1975) eliminated sovereign immunity for governmental entities. Despite the lack of an express exception in the statute, the court concluded that certain planning or policy making governmental functions, unlike purely operational functions, could not be the subject of traditional tort liability. The Court approved a case-by-case analysis to distinguish between the "planning" and "operational" levels of decision-making by government agencies, and set forth a four-pronged test for determining which category a particular act or decision fell into:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?

(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to make the challenged act, omission, or decision? ...

Commercial Carrier Corp. v. Indian River County, supra, at 1019. If all four questions are answered in the affirmative the act may be classified as a discretionary planning-level function and non-tortious. Where one or more questions call for a negative answer, however, further inquiry may be necessary.

Application of the above test to the instant case reveals that questions (1) and (4) can easily be answered in the affirmative. The act of inspection and certification of city buildings is a basic governmental policy which the City has the lawful authority to undertake pursuant to ordinance. We find, however, that the City's actions do not satisfy the second and third elements of the test. Inspections, plan reviews and certification for this particular condominium did not change the overall direction or policy of the general program of building inspection in the city. See Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), petition for review denied, 399 So.2d 1145 (Fla.1981). Similarly, we find that the City's enforcement of the established Code standards is a purely ministerial action which does not rise to the status of basic policy evaluation since the majority of the inspectors' acts involve simple measurement and enforcement of the building code as written rather than the exercise of discretion and expertise. See Jones v. City of Longwood, Florida, 404 So.2d 1083 (Fla. 5th DCA 1981).

Although the initial determination by the City to inspect and certify construction within its boundaries is a "planning" decision, the subsequent performance of inspection, plan review and certification is clearly an "operational" level activity implementing that policy. 2 Once the City undertook to inspect, review and certify construction, it was obligated to do so reasonably and responsibly in accordance with acceptable standards of care: "[I]mmunity of a government for negligently performing an act no longer exists, even though the initial decision to act may have been purely discretionary, and not compelled in any way." Collom v. City of St. Petersburg, 400 So.2d 507, 508 (Fla. 2d DCA 1981) (...

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7 cases
  • Trianon Park Condominium Ass'n, Inc. v. City of Hialeah
    • United States
    • Florida Supreme Court
    • April 4, 1985
    ...curiae for The Dade County League Of Cities, Inc. OVERTON, Justice. This is a petition to review Trianon Park Condominium Association v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982), in which the district court held the City of Hialeah liable to condominium owners for damage to condomi......
  • Manors of Inverrary XII Condominium Ass'n, Inc. v. Atreco-Florida, Inc.
    • United States
    • Florida District Court of Appeals
    • September 28, 1983
    ...it to say that we are in accord with the recent decision of the Third District Court of Appeal in Trianon Park Condominium Association v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982). Virtually all of appellee's arguments were adequately answered in that case (which decision was filed ......
  • Bryan v. State, Dept. of Business Regulation
    • United States
    • Florida District Court of Appeals
    • September 12, 1983
    ...inspection and certification is an operational-level activity implementing that policy. As stated in Trianon Park Condominium v. City of Hialeah, 423 So.2d 911, 913 (Fla. 3rd DCA 1982): Once the City undertook to inspect, review and certify construction, it was obligated to do so reasonably......
  • Caranna v. Eades, s. 83-1636
    • United States
    • Florida District Court of Appeals
    • February 8, 1985
    ...in holding the City immune under Commercial Carrier and Neumann, we recognize conflict with Trianon Park Condominium Association, Inc. v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA 1982), which is pending review in our supreme court. Because of that conflict, we also discuss and decide the......
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