TOWN OF LARGO, APPELLANT,
v.
L & S BAIT COMPANY OF FLORIDA, INC., APPELLEE
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The Town of Largo appealed a partial summary judgment on liability in a negligence suit brought by L & S Bait Company for damages from a sewer backup. The court held that municipalities have governmental immunity from negligence liability for governmental functions like sewer operations unless the tort is committed against someone with whom the municipality's agent is in privity or direct contact, and reversed the summary judgment.
A municipality is immune from liability for negligence committed in the performance of a governmental function (such as sewer system operation) unless the tort is committed against one with whom the agent or employee is in privity or with whom he is dealing in a direct transaction or confrontation. Here, the alleged negligence was not committed against such a person, so the Town's affirmative defense of immunity should not have been struck.
[1] The construction and operation of a sewage disposal system is a governmental function.
[2] A municipality is liable for negligence in the performance of a governmental function only when the tort is committed against one with whom the agent or employee is in pr…
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Join FLexlaw to unlock all legal intelligence“The construction and operation of a sewage disposal system is a governmental function”
Establishes that sewer operations are governmental functions, citing Buchanan v. City of Miami
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Join FLexlaw to unlock all legal intelligenceL & S Bait Company sued the Town of Largo for negligence, alleging that the town's negligent operation of its sewer system caused a backup that floode…
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Appellee, plaintiff below, brought suit against appellant alleging that the negligence of appellant caused a sewer back-up which flooded appellee’s property, causing property damage. Appellant answered and as an affirmative defense claimed immunity as the operation of a sewer system is a governmental function. On motion by *413appellee, the lower court struck this affirmative defense. Subsequently, a partial summary judgment on liability was entered in favor of appellee.
Appellant brings this interlocutory appeal challenging the entry of the partial summary judgment on liability and also assigns as error the striking of its affirmative defense of immunity.
It is the well settled law in the State of Florida that the construction and operation of a sewage disposal system is a governmental function. In Buchanan v. City of Miami, Fla. 1950, 49 So.2d 336, our Supreme Court held:
“The appellant concedes that the construction and operation of such a disposal system is a governmental function; certain it is that the health of a community may be safeguarded by the proper treatment of sewage.”
The holding in Buchanan, supra, was followed in a well-reasoned opinion by our sister court in A1A Mobile Home Park, Inc. v. Brevard County, Fla.App.1971, 246 So.2d 126.
A municipality is liable for its negligence under the doctrine of respondeat superior when such negligence is committed by its agent or employee in the performance or non-performance of a duty within the scope of a governmental function only when such tort is committed against one with whom the agent or employee is in privity or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation. See City of Tampa v. Davis, Fla.App. 1969, 226 So.2d 450.
An examination of the record reveals that the alleged negligence of the appellant was not committed against one with whom the agent or employee is in privity or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation. Therefore, we hold that the trial court erred in striking appellant’s affirmative defense.
We do not direct the trial court to enter judgment for the appellant in view of the fact that at this stage of the proceedings the appellee may be able to allege and prove facts to overcome appellant’s affirmative defense of immunity.
Reversed and remanded.
PIERCE, C. J., and LILES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moore v. City OF ST. Petersburg, 281 So. 2d 549 (Fla. 2d DCA 1973)…ation of a sewage disposal system is a governmental function, Buchanan v. City of Miami, Fla.1950, 49 So. 2d 336; AIA Mobile Home Park, Inc. v. Brevard County, Fla.App.1971, 246 So. 2d 126; Town of Largo v. L & S Bait Company of Tampa, Fla.App.1972, 256 So. 2d 412, as opposed to a “corporate or proprietary” function, such as street and sidewalk maintenance. [*551] There was no evidence of privity between the plaintiff and the employees of the sewer department of the city, nor of a special duty owed to plainti…
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Rudolf J. Gerneth and Henrica J. C. Gerneth v. The City OF Detroit, 465 F.2d 784 (6th Cir. 1972)…duty breached was a public duty, not a duty owed to the individual injured, foreseeability notwithstanding.” 226 So. 2d, at 454-455. The same standard was applied by the Florida Court of Appeals in Town of Largo v. L & S Bait Co. of Florida, Inc., 256 So. 2d 412 (1972), where the Court held that the Town of Largo could not be held liable for damages caused by negligently causing a sewer to back up on to plaintiff’s property. A similar conclusion has been reached under other circumstances in Whitney v. City…
Authorities Cited
- The City OF Tampa v. Davis, 226 So. 2d 450 (Fla. 2d DCA 1969)
- A1A Mobile Home Park, Inc. v. Brevard Cnty., 246 So. 2d 126 (Fla. 4th DCA 1971)