Windham v. Florida Dept. of Transp.

• Decision Date: 27 September 1985
• Docket Number: No. AX-30,AX-30
• Citation: 476 So.2d 735,10 Fla. L. Weekly 2252
• Parties: 10 Fla. L. Weekly 2252 Bernard WINDHAM, et al. Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

Page 735

476 So.2d 735

10 Fla. L. Weekly 2252

Bernard WINDHAM, et al. Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.

No. AX-30.

District Court of Appeal of Florida First District.

Sept. 27, 1985.

Randall E. Denker of Lehrman & Denker, Tallahassee, for appellant.

Linda G. Miklowitz and A.J. Spalla, Tallahassee, for appellee.

SMITH, Judge.

The Windhams appeal from an order of the circuit court dismissing with prejudice their second amended complaint for personal injuries and other damages. In their complaint, the Windhams attempted to state a cause of action based upon the negligence of the Department of Transportation, or its contractor (not a party to this appeal), or both, in improperly disposing of a toxic substance which ultimately contaminated the water well located on the Windhams' property and from which they derived their drinking water over a period of years prior to the filing of the complaint. The trial court dismissed the complaint upon the ground that although the injuries and damages suffered by the Windhams occurred subsequent to the passage of the statute waiving sovereign immunity, Section 768.28, Florida Statutes (effective July 1, 1974), the act or acts of the Department forming the basis for the plaintiffs' claims of liability occurred prior to the passage of the waiver statute, so that the action was barred by sovereign immunity. The dismissal was further predicated upon a finding that the acts complained of were those of the codefendant, W.T. Ledbetter Company, an independent contractor for whose acts the Department had no liability. We view the complaint essentially as did the trial judge, as failing to allege acts occurring subsequent to the waiver of sovereign immunity upon which a cause of action may be based, and therefore affirm. ¹

According to their complaint, in 1976 appellants, Bernard and Patricia Windham, bought property in rural Leon County and drilled a well to provide water. ² They began to suffer from a variety of symptoms for which medical treatment was sought. The Windhams' first child was born with a rare form of eye cancer, requiring surgical removal of the eye. During February and March 1982, the Department of Environmental Regulation sampled water from the Windhams' well and discovered that it was contaminated with trichloroethylene (TCE). TCE is alleged to be an odorless, colorless, and tasteless chemical which is highly carcinogenic and is classified by EPA as a "hazardous toxic waste."

At the time of discovery of the TCE contamination, according to the Windhams' complaint, they had been exposed to TCE for six years. Further, they allege, TCE is known to cause sperm abnormalities and birth defects, in addition to brain damage, damage to bone marrow, and reductions in blood cell production. Subsequent to learning of the TCE contamination, the Windhams allege that their search for the source of the TCE led to the finding of drums of the solvent buried in a pit alongside the road (on another person's private property, appellant's brief states) near the Windhams' property. They allege that the drums were unlawfully buried there by the Department's contractor, Ledbetter, in 1959, during the process of paving a section of the highway near what is now the Windham property. It is alleged that Ledbetter used TCE solvents to clean road equipment, and improperly buried drums of the contaminant in the pit with no attempt to safeguard the escape of the chemicals or to remove them from the construction site.

The complaint is in three counts, sounding in negligence, trespass, and nuisance. Count I, negligence, charges that the Department knew or should have known of the use of TCE, an inherently dangerous substance, and that the Department had a non-delegable duty to supervise the work being carried on by its contractor to insure that the hazardous substance would not be used or disposed of in such manner as to cause injury or serious risk of harm to plaintiffs or other members of the public. They allege that the Department was negligent in its failure to impose safety precautions and its failure to supervise its contractor's use of the dangerous substance, in permitting its contractor to clean equipment with TCE daily in such a manner that TCE drained unrestricted and untreated into the soil, and in permitting the contractor to bury and abandon toxic wastes in a pit when the contract was completed. They further allege knowledge on the part of the Department that TCE is not biodegradable, and that the soil where the TCE was used and disposed of was porous, and that it was foreseeable that the TCE spilled onto and buried untreated into the ground would percolate through the soil and contaminate the ground water.

Count II, trespass, contains the further allegations that the Department had a duty to prevent the flow of TCE into their ground water, that the Department knew or should have known that its negligence would result in the hazardous wastes trespassing onto the plaintiff's land or into the ground waters beneath their land, and that such hazardous wastes did in fact trespass onto their land, and into their ground water, causing loss of value of the land.

Count III, nuisance, alleges a similar duty to insure that the Department's contractor would not be permitted to create and maintain a condition that would interfere with the plaintiff's enjoyment of their land, and to require the contractor, Ledbetter, to use and dispose of the inherently dangerous substance, TCE, in a manner that would prevent it from percolating through the soil and contaminating the ground water below the surface of their land. This count further alleges knowledge on the part of the Department as to the nature of TCE, and foreseeability of the consequences of the substance being spilled onto the ground, buried and abandoned in such manner that it would percolate through the soil and contaminate the ground water. Accordingly; they allege, the Department, had created and maintained a nuisance causing injury to the plaintiffs.

The plaintiffs contend that the trial court erroneously interpreted Section 768.30, Florida Statutes (1981), and miscontrued State ex rel Division of Administration v. Oliff, 350 So.2d 484 (Fla. 1st DCA 1977), in determining that their cause of action arose in 1959 when the roadwork which allegedly precipitated the contamination of plaintiffs' water supply took place. ³ They argue that Oliff's actual holding was that a motion to dismiss in circumstances analogous to the case at bar was improper because the question of when a cause of action arose was a factual one for a jury to decide. Plaintiffs argue strenuously that their cause of action against the Department could not have arisen in 1959 since, they maintain, they could not possibly have been affected by the contamination of their water until 1976, the year they purchased the property. Plaintiffs contend that the trial court's ruling effectively deprives them of access to the courts by barring their lawsuit before they had an opportunity to discover their injury, citing Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981), and Vilardebo v. Keene Corp., 431 So.2d 620 (Fla. 3d DCA 1983).

The Department, on the other hand, asserts that the plaintiffs' implicit statute of limitations argument is irrelevant because the existence of sovereign immunity for an act or omission by a state agency is an absolute bar to recovery; hence, the statute of limitations on such a claim would not begin to run at all. The Department notes that Oliff's holding applied only to a cause of action based on fraud, and the department further points to the court's recognition of the rule that where negligence is involved a plaintiff's cause of action would accrue at the time of injury, even if the full extent of the injury was not discovered until later, Oliff, supra, at 486, n. 1. Here, the Department argues, the plaintiffs were injured, if at all, no later than 1959, at a time when sovereign immunity remained in force. Although we cannot accept the Department's argument that plaintiffs were "injured" in 1959, neither do we find the Oliff decision dispositive under the facts presented here, ⁴ and we agree that dismissal of the complaint was proper. ⁵

As we view plaintiffs' arguments, they attempt (incorrectly, we think) to use the "discovery" rule, tolling the statute of limitations for certain tort actions, to determine whether an "incident" occurred subsequent to the effective date of Section 768.28, Florida Statutes (1981), upon which they may base a cause of action against the Department. A statute of limitations is indeed "tolled" where there is nothing to put the plaintiff on notice of any probable or even possible injury. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). The question in this case, however, is not whether a cause of action is being timely pursued, but whether a cause of action exists at all under the particular statutory waiver of sovereign immunity applicable here. See, Comley v. Emanuel Lutheran Charity Board, 35 Or.App. 465, 582 P.2d 443, 448, n. 5 (1978). Hence, since the dismissal was not based on a statute of limitations defense, we are not here concerned with when the plaintiffs would have been able to discover the extent and source of their injuries. It is uncontroverted that no injury to them could have occurred until after they bought the property, which occurred after the effective date of the statute. Rather, we are concerned with whether plaintiffs have alleged that the acts or omissions which resulted in their injuries--that is, the "incident" upon which their claims are ultimately based--occurred subsequent to the effective date of Section 768.28. If not, their action is barred by the doctrine of sovereign immunity which was the law of Florida until July 1, 1974.

Since the waiver statute (see footnote 3, supra) allows an action against the department only for "incidents...