City of St. Petersburg v. Collom

In City of St. Petersburg v. Collom, 419 So. 2d 1082 (Fla. 1982), the supreme court addressed a similar contention. In that wrongful death case the plaintiff's decedents had drowned after heavy storm waters washed them down a city storm drain which was unprotected by bars or screens. The circuit court granted the city a summary judgment on the ground that the plan and design of the drainage ditch and pipe were matters of discretional immunity. When approving the reversal of the judgment, the supreme court acknowledged that defects inherent in the overall plan for an improvement, as approved by a government entity, cannot in and of themselves subject the entity to liability. On the other hand, the court held, without substantially interfering with the powers of the coordinate branches of government, courts can require: "(1) the necessary warning or correction of a known dangerous condition; (2) the necessary and proper maintenance of existing improvements, as explained in Commercial Carrier, 371 So. 2d 1010 (Fla. 1979); (3) the proper construction or installation and design of the improvement plan, as explained in Neilson, 419 So. 2d 1071 (Fla. 1982)." Collom, 419 So. 2d at 1086. Thus, in Collom the court concluded that "the failure to warn of or correct a known danger created by government is negligence at the operational level." Id. It went on to note that the summary judgment in that case, which focused on whether the city should have constructed the storm drain with protective bars or screens, addressed the wrong issue. Rather, the determinative issue was whether the city had created a known dangerous condition which may not have been readily apparent to one who could be injured because of it, and then failed to warn of or correct the condition. Collom, 419 So. 2d at 1087. In City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086 (Fla. 1982), the supreme court explained: A governmental entity may not create a known hazard or trap and then claim immunity from suit for injuries resulting from that hazard on the grounds that it arose from a judgmental, planning-level decision. When such a condition is knowingly created by a governmental entity, then it reasonably follows that the governmental entity has the responsibility to protect the public from that condition, and the failure to so protect cannot logically be labelled a judgmental, planning-level decision. We find it unreasonable to presume that a governmental entity, as a matter of policy in making a judgmental, planning-level decision, would knowingly create a trap or a dangerous condition and intentionally fail to warn or protect the users of that improvement from the risk. In our opinion, it is only logical and reasonable to treat the failure to warn or correct a known danger created by government as negligence at the operational level.