Legal Question in Construction Law in Florida

Re: lawsuit against a Department within a Florida County

The supreme court of florida held in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) that planning or policy making governmental functions should remain protected by sovereign immunity, but that operational functions could be the subject of tort liability; � 768.28, Fla.Stat. (1979).

In, Johnson v. Collier County 468 So.2d 249 (Fla.App. 2 Dist.,1985) a County was immune from suit by wife for alleged negligence in inspecting construction site at which husband was electrocuted while operating a power drill connected to temporary pole, where county did not design, construct, own, operate or maintain temporary service pole and where wife had remedies other than suit against county.

In Jones v. City of Longwood, 404 So.2d 1083 (Fla. 5th DCA 1981) (2-1 decision), petition for review denied, 412 So.2d 467 (Fla.1982), the fifth district held that an ordinance requiring the city to periodically inspect all buildings and structures within the city did not leave sufficient discretion in the designated officials to elevate to a planning level their decisions as to when and how often to make inspections. Thus, their acts and functions pursuant to the ordinance constituted operational level activity.

In Trianon Park Condominium Ass'n v. City of Hialeah, 423 So.2d 911 (Fla. 3d DCA), petition for review granted, Case No. 63,115 (Fla. July 1, 1983), the third district held that even though an initial determination by the city of whether to inspect and certify construction within its boundaries was a planning decision within the meaning of Commercial Carrier, that the city's subsequent performance of inspection and certification was an operational level activity, which gives rise to liability in tort under section 768.28.

In Bryan v. State, Department of Business Regulation, 438 So.2d 415 (Fla. 1st DCA 1983), petition for review granted, Case No. 64,464 (Fla. Apr. 23, 1984), the first district held that a governmental decision to administer safety inspections and require certification of elevators pursuant to guidelines was a planning level function, but that subsequent performance of those functions by state employees was an operational level activity for which the state may be held liable in tort.

Good luck,

Randall Gilbert