DUANE AND LINDA NANZ, NEAL AND JODY BEDFORD, WARREN AND ALICE WILSON, AND RUSSELL AND GALE MURPHREE, APPELLANTS,
v.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, AN AGENCY OF THE STATE OF FLORIDA, AND HILLSBOROUGH COUNTY, A COUNTY IN THE STATE OF FLORIDA, APPELLEES
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Property owners appealed the dismissal of their negligence complaint against a water management district and county for flood damage caused by alleged negligent operation of a drainage system. The court reversed, holding that the water management district's statutory immunity applies only to planning functions, not operational activities, and that the county can be liable if it undertook to operate a drainage system negligently.
SWFMD's statutory immunity under section 373.443 applies only to its planning functions (permit approval, regulation promulgation, control through permits and orders), not to operational-level negligence activities. Hillsborough County can be held liable for damages if it negligently maintained, controlled, or operated a drainage system it undertook to provide, despite having no general duty to manage flood waters.
[1] A statute granting immunity to a water management district for actions related to permits, regulations, or control of stormwater management systems does not preclude liab…
[2] Section 768.28, Florida Statutes, waives sovereign immunity for tort liability for the state and its agencies, and must be reconciled with specific immunity statutes.
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Join FLexlaw to unlock all legal intelligence“We interpret section 373.443 to provide that the various water management districts shall not be held liable if the permits they grant, the regulations they promulgate, or the control they exercise by reason of their permits, regulations, and orders lead to injuries. The immunity granted appears to be related to the planning functions of SWFMD as opposed to its operational activities.”
Establishes that statutory immunity applies only to planning functions, not operational negligence
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Join FLexlaw to unlock all legal intelligenceAppellants' properties were flooded, which they alleged was caused by the negligent operation, control, and maintenance of a drainage system by the So…
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BLUE, Judge.
The appellants correctly contend the court erred in dismissing their complaint with prejudice. The complaint alleged Southwest Florida Management District (SWFMD) and Hillsborough County were negligent in their operation, control and maintenance of a drainage system, and this negligence proximately caused appellant’s properties to be flooded. The court found SWFMD to be immune from liability pursuant to section 373.443, Florida Statutes (1989), and found that Hillsborough County had no duty to act as alleged.
Section 373.443, Florida Statutes, provides:
No action shall be brought against the state or district, or any agents or employees of the state or district, for the recovery of damages caused by the partial or total failure of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works upon the ground that the state or district is liable by virtue or any of the following:
(1) Approval of the permit for construction or alteration.
(2) The issuance or enforcement of any order relative to maintenance or operation.
(3) Control or regulation of stormwa-ter management systems, dams, impoundments, reservoirs, appurtenant work, or works regulated under this chapter. (4) Measures taken to protect against failure during emergency.
Interpreting this statute to allow SWFMD complete tort immunity would conflict with section 768.28, Florida Statutes (1989), which in general terms provides that the State of Florida has “waive[d] sovereign immunity for liability for torts” for itself as well as for “its agencies or subdivisions.” Where two statutes are found to be in conflict, rules of statutory construction must be applied to reconcile the conflict if possible. Debolt v. Dept. of Health & Rehab. Services, 427 So. 2d 221 (Fla. 1st DCA 1983).
We interpret section 373.443 to provide that the various water management districts shall not be held liable if the permits they grant, the regulations they promulgate, or the control they exercise by reason of their permits, regulations, and orders lead to injuries. The immunity granted appears to be related to the planning functions of SWFMD as opposed to its operational activities. In the instant case, liability is subject to traditional tort analysis under section 768.28 since the complaint alleges negligence on the part of SWFMD through its operational level activities. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979). We hold the court erred in dismissing the complaint on the basis that SWFMD was immune from suit.
We also hold that the court erred in granting Hillsborough County’s motion to dismiss. We agree with the trial court’s ruling that Hillsborough County had no duty to manage and control flood waters since sections 373.016 and 373.023, Florida Statutes (1989), delegate this responsibility to the Department of Environmental Regulation and the water management districts of this state. However, the issue in this case does not concern whether Hillsbor-ough County had a duty to act. The complaint alleges the county undertook the operation, control, and maintenance of a drainage system. If the county has undertaken to provide such a service, it assumes the responsibility to do so with reasonable care. Slemp v. City of North Miami, 545 So. 2d 256 (Fla.1989). We conclude Hills-borough County can be held liable for damage if as alleged it is negligently maintaining, controlling or operating a drainage system.
The appellants’ complaint sufficiently alleged that it was the failure of SWFMD and Hillsborough County to properly maintain or operate the drainage system that caused damage to their property. Consequently, we reverse and remand to the trial court for further proceedings.
FRANK, A.C.J., and PATTERSON, J., concur.
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Bailey v. Bd. OF Cnty. Comm'rs, 619 So. 2d 346 (Fla. 2d DCA 1993)…th the ruling dismissing the complaint, we conclude the trial court erred in dismissing with prejudice. This court has recently decided a case involving a similar factual situation and the same defendant. See Nanz v. SWFMD and Hillsborough County, 617 So. 2d 735 (2d DCA 1993). In Nanz, we reversed the dismissal of a complaint which alleged that Hillsborough County had undertaken the operation, control and maintenance of a drainage system. We determined that if Hillsborough had undertaken to provide service,…
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Sw. Fla. Water Mgmt. Dist. v. Nanz, 642 So. 2d 1084 (Fla. 1994)…from negligence in the execution of its operational level activities or are such activities and subsequent liability governed by the relevant provisions of section 768.-28, Florida Statutes (1989)? Nanz v. Southwest Florida Water Management Dist., 617 So. 2d 735 (Fla. 2d DCA 1993) (order on motion for certification). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Because the present case is controlled by the 1987, not the 1989, version of Florida Statutes, and is limited to the issue of liability for…1 / 4
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Authorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- DeBOLT v. The Dep't OF Health & Rehabilitative Servs., 427 So. 2d 221 (Fla. 1st DCA 1983)
- Fletcher Slemp and Dora Slemp v. City OF N. Miami, 545 So. 2d 256 (Fla. 1989)