WILLIAM M. NEILSON, KIM L. NEILSON, AND ROBERT F. NEILSON, MINORS, BY AND THROUGH THEIR FATHER AND NEXT FRIEND, WILLIAM E. NEILSON AND WILLIAM E. NEILSON, INDIVIDUALLY, AND PATRICIA P. NEILSON, APPELLANTS,
v.
DEPARTMENT OF TRANSPORTATION, AN AGENCY OF THE STATE OF FLORIDA; AND HILLSBOROUGH COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES
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In this negligence action arising from an intersection collision, the Florida District Court of Appeal reversed the dismissal of governmental defendants (Department of Transportation and Hillsborough County) on sovereign immunity grounds, holding that Florida's governmental immunity doctrine was abolished by statute and that the trial court must apply a new discretionary/operational function test to determine liability.
The dismissal order is reversed. Governmental immunity has been abolished in Florida by statute, and all units of government are now liable for their tortious conduct. However, certain governmental functions that are discretionary in nature do not give rise to liability because no breach of duty can be established. The case is remanded to the trial court to apply the discretionary versus operational function test to the allegations against the governmental defendants.
[1] The doctrine of governmental immunity was abolished in Florida upon the effective date of Section 768.28, Florida Statutes, making all units of government liable for thei…
[2] Governmental functions that are discretionary in nature do not give rise to liability because no breach of duty can be established.
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Join FLexlaw to unlock all legal intelligence“All units of government are now liable for their tortious conduct.”
Establishes the abolishment of governmental immunity in Florida following the Supreme Court's decision
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Join FLexlaw to unlock all legal intelligenceAn intersection collision occurred in Tampa involving multiple vehicles. Plaintiffs William M. Neilson, Kim L. Neilson, Robert F. Neilson (minors), an…
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OTT, Judge.
An intersection collision in the City of Tampa led to this action seeking compensation for personal injuries and property damage. The complaint alleged negligence on the part of certain individual defendants as owner and operator of one of the vehicles involved in the accident. In addition, the City of Tampa, the County of Hillsborough and the Florida Department of Transportation were also joined as defendants and collectively charged with negligence in de signing, constructing, maintaining and controlling the intersection, which was allegedly hazardous to motorists.
On their motions, Hillsborough County and the DOT were dismissed from the action on the ground that they were immune because their allegedly negligent acts were “governmental” in nature and no “special duty” had been either alleged or shown to be owing to plaintiffs. We reverse that order. The concept on which appellees were released from the case has now been expressly disapproved by our supreme court. See, Commercial Carrier Corp. v. Indian River County and Cheney v. Dade County, 371 So. 2d 1010 (Fla.1979), declaring that the doctrine of governmental immunity was abolished in this state when Section 768.28, Florida Statutes became effective. All units of government are now liable for their tortious conduct.
There are, of course, certain functions of government which do not give rise to liability because they are discretionary. By definition such acts cannot be tortious because no breach of duty can be established. Commercial Carrier/Cheney, supra, adopted a comprehensive test for determining whether the alleged misconduct of a governmental entity was a “discretionary” or an “operational” function. 371 So. 2d at 1017-22.
Inasmuch as the opinion in Commercial Carrier/Cheney was handed down during the pendency of this appeal, the trial court has had no opportunity to subject the charges against appellees to the test recommended by that decision. The complaint in the instant proceeding alleges that appel-lees were negligent in (1) designing and constructing the intersection as a roadway, (2) failing to install adequate traffic control signs and devices, (3) designing, constructing and maintaining confusing traffic control devices at the intersection, and (4) failing to warn motorists that the intersection was hazardous. While it may appear that most, if not all, of the charges are in the discretionary area, we believe that the initial determination of the character of those functions is best made by the trial courts. In that forum additional information necessary to that determination may be presented by amended pleadings or other means.
The order dismissing the action as to appellees is reversed and the case is remanded to the trial court for further proceedings.
HOBSON, Acting C. J., and SCHEB, J., concur.
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Dep't OF Transp. v. Neilson, 419 So. 2d 1071 (Fla. 1982)…hat the intersection was hazardous. The trial court initially dismissed the governmental entities from the suit on the ground they were immune from this type of action. The Second District Court of Appeal in Neilson v. Department of Transportation, 376 So. 2d 296 (Fla. 2d DCA 1979), remanded the case to the trial court for reconsideration in view of our intervening decision in Commercial Carrier. Upon remand, the trial court again dismissed the action against all three governmental entities, finding that the…
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City OF ST. Petersburg v. Collom, 419 So. 2d 1082 (Fla. 1982)…371 So. 2d 1010 (Fla.1979). The Second District Court of Appeal reversed and remanded for further proceedings, citing its decisions in Collom v. City of St. Petersburg, 400 So. 2d 507 (Fla.2d DCA 1981), and Neilson v. Department of Transportation, 376 So. 2d 296 (Fla.2d DCA 1979). The district court held that “[w]hile the city had the discretion to decide whether to alter the natural state of Booker Creek, once it decided to do so, the alterations had to be designed and performed in a reasonable manner.” 40…
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Berry v. State, 400 So. 2d 80 (Fla. 4th DCA 1981)…agencies or subdivisions” which, by definition, include “the executive departments, the Legislature, the judicial branch, and the independent establishments of the state....”1 (Emphasis supplied.) As noted in Neilson v. Department of Transportation, 376 So. 2d 296, 297 (Fla. 2d DCA 1979), “[a]ll units of government are now liable for their tortious conduct.” Thus, the statute is all-embracing and applies to the three branches of government. With respect to the judicial branch, however, it is subject to a cruc…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)