LILYAN WEISSBERG AND SIDNEY WEISSBERG, APPELLANTS,
v.
CITY OF MIAMI BEACH, SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, APPELLEES
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The Florida District Court of Appeal reversed summary judgment granted to the City of Miami Beach in a negligence action arising from a traffic accident at a construction site. The court held that the city's failure to ensure a traffic-directing police officer was performing his duties constituted an operational-level negligence claim not shielded by sovereign immunity, rejecting the city's argument that the decision involved planning functions.
The city is not immune from liability. The failure to ensure that an assigned police officer properly directs traffic is an operational-level activity, not a planning function, and therefore does not fall within the protection of sovereign immunity.
[1] A municipality's sovereign immunity is abrogated by the waiver of sovereign immunity by the state, its agencies, or subdivisions.
[2] The "general duty"-"special duty" dichotomy has been abrogated by the waiver of sovereign immunity.
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Join FLexlaw to unlock all legal intelligence“the "general duty"-"special duty" dichotomy has been abrogated by the waiver of sovereign immunity by the state, its agencies, or subdivisions”
Establishes the controlling legal standard from Commercial Carrier that eliminates the city's primary immunity argument
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Join FLexlaw to unlock all legal intelligenceMrs. Weissberg was injured in a two-car accident at the intersection of Sixteenth Street and Lennox Avenue in Miami Beach where Southern Bell Telephon…
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NESBITT, Judge.
The issue raised in this appeal is the scope of sovereign immunity of a municipality. Mrs. Weissberg was involved in a two-car accident at the intersection of Sixteenth Street and Lennox Avenue in Miami Beach. At the site, Southern Bell Telephone Company was working on its line through an open manhole. Visibility at the intersection was obscured by Southern Bell’s equipment. The city of Miami Beach regularly requires a utility to employ a uniformed, off-duty city policeman selected in rotation from a roster for the purpose of directing traffic around a worksite. The officer’s salary is paid on an hourly basis by the utility company. In conformity with this practice, a Miami Beach policeman had been dispatched to direct traffic at this intersection. At the time of the particular accident, the officer was not directing traffic but was resting in the shade on the side of the road.
Mrs. Weissberg, joined by her husband for his derivative claim, brought suit for damages' against both the City of Miami Beach and Southern Bell Telephone Company. The trial court granted summary judgment in favor of the city prior to the Supreme Court’s decision in Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010 (Fla.1979), apparently on the doctrine that municipalities were under no special duty to provide special police protection to those in situations similar to Mrs. Weissberg’s. In Commercial Carrier, the Supreme Court determined that the “general duty”-“special duty” dichotomy has been abrogated by the waiver of sovereign immunity by the state, its agencies, or subdivisions.1
The city attempts to sustain the judgment here with the contention that the decision to place a police officer to direct traffic at that particular location involved a planning function. Utilizing the test' of Commercial Carrier, we reject this contention because we see no difference between malfunctioning traffic devices, which were involved in Commercial Carrier, and an inattentive police officer whose failure to regulate and direct the flow of traffic may have led to this accident. Since the procedure had been established to provide police officers to direct traffic at the worksite of a utility, the failure to ensure that a traffic device is functioning properly is no different than to ensure that the officer assigned will properly carry out his function of directing traffic. Both are simply operational level activities.
Accordingly, the summary judgment and the cost judgment entered in favor of the city are reversed and the cause remanded for further proceedings.
. § 768.28, Fla.Stat. (1977).
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Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)…an escaped convict to a hospital emergency room for medical attention, a sheriff's deputy had a duty to reasonably control the convict who was then in his custody for the benefit of other persons populating the ER); Weissberg v. City of Miami Beach, 383 So. 2d 1158, 1158-59 (Fla. 3d DCA 1980) (having undertaken to direct traffic, police officer owed motorist a duty to do so with reasonable care). . See Trianon, 468 So. 2d at 920-21 (‘‘[T]here is no liability for the failure of a governmental entity to build,…
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Payne v. Broward Cnty., 461 So. 2d 63 (Fla. 1984)…(1943) (traffic light “is in effect the substitution of a signal for a policeman in the regulation of traffic on the streets”), overruled on other grounds, Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla.1957); Weissberg v. City of Miami Beach, 383 So. 2d 1158 (Fla. 3d DCA 1980) (police officer and traffic signal equated in the sense that there is an operational duty to ensure that either the officer or the light is properly controlling traffic). As a matter of law, neither the pleadings nor the evidence…
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Palm Beach Cnty. Bd. of Cnty. Comm'rs v. Salas, 511 So. 2d 544 (Fla. 1987)…wever, extends only to planning-level decisions and not to operational-level actions. E.g., Department of Transportation v. Neilson, 419 So. 2d 1071, 1078 (Fla.1982); Commercial Carrier Corp., 371 So. 2d at 1021-22; Weissberg v. City of Miami Beach, 383 So. 2d 1158, 1159 (Fla.3d DCA 1980). Moreover, as we held in City of St. Petersburg v. Collom, 419 So. 2d 1082, 1083 (Fla.1982): [Wjhen a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by…
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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)