VICTORIA HYDE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRANDY LEE HYDE, APPELLANT,
v.
FLORIDA DEPARTMENT OF TRANSPORTATION, APPELLEE

Fla. 2d DCA | 1984-07-13
No. 83-2145
GRIMES, A.C.J., and SCHOONOVER, J., concur.
452 So. 2d 1109 Florida District Court of Appeal, Second District (1984) Positive Treatment
Cited by 4 cases

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Synopsis

Victoria Hyde, as representative of her deceased seven-month-old daughter's estate, sued the Florida Department of Transportation for wrongful death after the child drowned when a vehicle veered into an unguarded, excavated roadside body of water. The court affirmed DOT's immunity, holding that decisions to install protective devices and warn of privately-created hazards are planning-level functions protected by sovereign immunity.


Holding

DOT did not have an actionable duty to install a guardrail or protective device, as this decision constitutes a planning-level function protected by sovereign immunity. Additionally, DOT had no actionable duty to warn of dangerous conditions created by private landowners, as this is also a planning-level judgmental decision.


Headnotes

[1] Decisions regarding the upgrade of existing roadways are planning-level functions protected by sovereign immunity.

[2] The decision of whether to install a guardrail on an existing road constitutes a planning-level policy decision protected by sovereign immunity.

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Key Quotes

“Whether to build a guardrail on an existing road is, we believe, a classic example of the type of planning level policy decisions which remain in the protected sphere of sovereign immunity.”

Establishes that guardrail installation decisions are planning-level functions protected by sovereign immunity

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Facts & Procedural History

In 1979, Beacon Homes began developing property near State Road A19A in Pinellas County and excavated a roadside body of water to five feet below mean…

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Opinion of the Court
OTT, Judge.

OTT, Judge.

Victoria Hyde, as personal representative of the estate of Brandy Lee Hyde, sued the Florida Department of Transportation and others for the wrongful death of then seven-month-old Brandy Lee Hyde. This appeal involves the trial court’s grant of the Florida Department of Transportation’s motion for judgment on the pleadings. We affirm.

According to plaintiff’s amended complaint, Beacon Homes of Florida, Inc., owned real property in Pinellas County near 66th Street North (State Road A19A) and Bryan Dairy Road (County Road 135). A roadside body of water existed on this property that was not guarded by a longitudinal barrier or comparable device. In 1979, Beacon Homes began development of a project on the site to be known as Beacon Run. The site plan called for excavation of the roadside body of water to a depth of five feet below mean sea level, but did not call for erection of a device to protect vehicles traveling on 66th Street from entering the excavated area. The site plan was approved by the proper county and municipal authorities. The excavation occurred as planned, and no guardrail or protective device was erected.

On January 31,1981, a vehicle driven in a southerly direction on 66th Street by Victoria Hyde was rear-ended by a vehicle driven by Charles Martindale. Mrs. Hyde’s vehicle veered left, crossed the northbound lanes, plunged into the roadside body of water, and became completely submerged in approximately eight feet of water. Seven-month-old Brandy Lee Hyde drowned.

Plaintiff filed a multi-count civil action for damages. In Count I, plaintiff alleged that DOT owed a duty to safely maintain its highways, streets, and roadsides, and that DOT knew or should have known of the excavated, unbarrieaded roadside body of water and was careless and negligent in maintaining that portion of 66th Street North where the accident occurred by failing to erect or cause to be erected a guardrail, or other protective device; that DOT owed a further duty to warn of or correct the known dangerous condition created by the excavated, unbarrieaded roadside body of water and was careless or negligent by failing to do so, and that plaintiff suffered her damages as a direct and proximate result of such negligence. The remaining counts are against defendants not involved in this appeal.

Plaintiff first attempts to hold DOT liable for failing to add a guardrail or similar protective device to an existing roadway. The decision to upgrade an existing road is a planning level function to which absolute immunity attaches to city, county, and DOT. See Department of Transportation v. Neilson, 419 So. 2d 1071, 1077-1078 (Fla.1982). Whether to build a guardrail on an existing road is, we believe, a classic example of the type of planning level policy decisions which remain in the protected sphere of sovereign immunity. Payne v. Palm Beach County, 395 So. 2d 1267 (Fla. 4th DCA 1981). Thus, the claimed failure by DOT to install a guardrail or other protective device to the existing road involved a planning level decision and therefore is not actionable. See also Perez v. Department of Transportation, 435 So. 2d 830 (Fla.1983).

Plaintiff next seeks to hold DOT liable for failure to warn of a known dangerous condition. When a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational level arises to warn the public of, or protect the public from, the known danger. City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086-1087 (Fla.1982). Here, there is no allegation that DOT created the dangerous condition. Plaintiff has presented this court with no authority that has construed the duty to warn so broadly. In our view, the decision to warn the public of, or protect the public from, conditions created by private land owners along the state’s network of roads is a decision arising at the judgmental, planning level. Accordingly, we hold that the second ground for plaintiffs claim against DOT is not actionable.

For the above stated reasons, we affirm the trial court’s grant of DOT’s motion for a judgment on the pleadings.

AFFIRMED.

GRIMES, A.C.J., and SCHOONOVER, J., concur.


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Citator

Cited By

  • Miller v. City OF Fort Lauderdale, 508 So. 2d 1328 (Fla. 4th DCA 1987)
    …ning level decision); Osorio v. Metropolitan Dade County, 459 So. 2d 332 (Fla. 3d DCA 1984), rev. dismissed, 469 So. 2d 749 (Fla.1985) (decision on where to place a stop sign is planning level function). Hyde v. Florida Department of Transportation, 452 So. 2d 1109 (Fla. 2d DCA 1984) (failure to install a guardrail is a planning level decision); Gordon v. City of West Palm Beach, 321 So. 2d 78 (Fla. 4th DCA 1975) (installation of traffic control devices is a governmental function). See also A.L. Lewis Elementa…
  • Freeman v. Taylor Cnty., 643 So. 2d 44 (Fla. 1st DCA 1994)
    …otective devises on roadways are basic capital improvements and thus are seen as judgmental planning level functions immune from suit in tort. Department of Transportation v. Neilson, 419 So. 2d 1071 (Fla.1982); Hyde v. Department of Transportation, 452 So. 2d 1109 (Fla. 2d DCA 1984); Payne v. Palm Beach County, 395 So. 2d 1267 (Fla. 4th DCA 1981). The Florida cases to date have not drawn a distinction between a pedestrian handrail and a roadway guardrail. Cf. American Exchange Bank of Madison, Wisconsin v. Un…
  • Berta Cruz v. Metro. Dade Cnty., 462 So. 2d 1204 (Fla. 3d DCA 1985)
    …PER CURIAM. Affirmed. Department of Transportation v. Neilson, 419 So. 2d 1071 (Fla.1982); Hyde v. Florida Department of Transportation, 452 So. 2d 1109 (Fla. 2d DCA 1984); Payne v. Palm Beach County, 395 So. 2d 1267 (Fla. 4th DCA 1981). Chapter 90.407, Florida Statutes (1983).…

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