ALBERT INFANDE AND BETTY INFANDE, HIS WIFE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, INCLUDING ALL PURCHASERS OUT OF POSSESSION OF CONDOMINIUM UNITS AT APPLE GREEN CONDOMINIUM APARTMENTS I, INDIVIDUALLY, JOINTLY AND SEVERALLY, APPELLANTS,
v.
SELIGMAN OF FLORIDA, INC., GUARDIAN HOUSING SYSTEMS, INC., APPLE GREEN CONDOMINIUM ASSOCIATION, INC., THE CITY OF MARGATE, ARTHUR KOPELMAN, HERBERT ADLER, GENE V. GIARRATANA AND APPLE GREEN MANAGEMENT CORP., APPELLEES
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The court held that the appellants failed to allege sufficient facts to support their claim that the waiver of sovereign immunity statute applied to the City.
Appellants sued the City of Margate for negligence, fraud, and deceit regarding building inspections and alleged defects. The trial court dismissed th…
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PER CURIAM.
Appellants (plaintiffs below) brought an action for negligence, fraud and deceit against the appellee — City of Margate for the manner in which building inspections were conducted by the City’s inspectors and the failure to disclose alleged defects in the buildings upon issuance of certificates of occupancy.
The trial court dismissed the complaint with prejudice and entered a final judgment in favor of the defendant City after the appellants elected not to amend their complaint to attempt to state a cause of action against the City. Although the appellants brought the action under Section 768.28 Florida Statutes (1975) (waiver of sovereign immunity), they alleged insufficient facts to support their contention that this waiver of immunity statute applied against the appellee City.
The effective date of Section 768.28 Florida Statutes (1975) as a waiver of the City of Margate’s immunity was January 1, 1975. Neither the complaint nor the record reveals that the incident giving rise to the cause of action occurred on or after this date.
We agree with the decision of the trial court. Further, the appellant has failed to demonstrate reversible error. Under the facts of this case, as stated in the initial complaint and in the record on appeal, we find Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla.1967) controlling. We accordingly affirm the decision of the trial court.
DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.
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Windham v. Fla. Dep't of Transp., 476 So. 2d 735 (Fla. 1st DCA 1985)…ssity for pleading a specific factual basis for liability where it is sought to overcome a sovereign immunity defense. See, Cutler v. Board of Regents of the State of Florida, 459 So. 2d 413 (Fla. 1st DCA 1984); Infande v. Seligman of Florida, Inc., 380 So. 2d 1169 (Fla. 4th DCA 1980); Banta v. Rosier, 399 So. 2d 444 (Fla. 5th DCA 1981). Appellants’ complaint here, stripped of con-clusory allegations such as the claim that the Department “created” a nuisance, clearly reveals that the operative facts upon which…
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Davis v. Tedder, 388 So. 2d 278 (Fla. 4th DCA 1980)…ective date of the waiver of sovereign immunity contained in Section 768.28, Florida Statutes (1975). As such this case is governed by the dictates of Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla.1967). See Infande v. Seligman of Florida, Inc., 380 So. 2d 1169 (Fla. 4th DCA 1980). Modlin states that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. Further, this duty must be something more than the duty that a publi…
Authorities Cited
- Modlin v. The City OF Miami Beach, 201 So. 2d 70 (Fla. 1967)