JANICE GRIM, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH GRIM, DECEASED, APPELLANT,
v.
MICHAEL DONOVAN, ETC., ET AL., APPELLEES
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The Florida Fourth District Court of Appeal reversed a trial court's dismissal of a wrongful death action based on sovereign immunity, holding that the complaint adequately stated a cause of action against the South Florida Water Management District for negligently failing to remove an obstruction from a canal it had a non-delegable duty to maintain.
The complaint states a cause of action by alleging that the District failed to correct a dangerous condition that it knew about and had a non-delegable duty to correct. Whether the allegations can be proven or the District can establish proof supporting its sovereign immunity claim cannot be determined at the motion to dismiss stage.
[1] A complaint alleging a governmental entity failed to correct a dangerous condition it knew about and had a non-delegable duty to correct states a cause of action.
[2] Sovereign immunity is an affirmative defense that must be established by the party asserting it.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Our reversal is predicated not on our conclusion that the District is not immune from liability but rather upon the undeveloped state of the record on this issue.”
Establishes that the court is reversing based on the procedural posture at the pleading stage, not on the merits of the sovereign immunity defense.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJoseph Grim was killed in a nighttime boating accident in a canal maintained by the South Florida Water Management District. A large log was obstructi…
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PER CURIAM.
This is an appeal from a final judgment dismissing an action for wrongful death predicated upon the alleged negligence of the appellee, South Florida Water Management District, in failing to remove an obstruction from a canal which the appellee allegedly had the non-delegable duty to maintain. The trial court dismissed the action upon the District’s claim that it enjoyed sovereign immunity with reference to its involvement with the canal in question. We reverse.
Our reversal is predicated not on our conclusion that the District is not immune from liability but rather upon the undeveloped state of the record on this issue. The complaint alleges that the District is lawfully responsible for maintaining the canal free of navigational obstructions and that, notwithstanding that responsibility, the District, in the face of numerous complaints over a period of several weeks, allowed a large log to obstruct boat traffic in the canal. The complaint further alleged that the failure to remove the log resulted in the nighttime boating accident which killed Joseph Grim. All we have before us is the complaint. In our view that complaint states a cause of action by alleging in essence that the District failed to correct a dangerous condition that it knew about and had a non-delegable duty to correct. Cf. Cutler v. City of Jacksonville Beach, 489 So. 2d 126 (Fla. 1st DCA 1986). Whether or not those allegations can be proven or the District can establish proof supporting its claim of sovereign immunity, we cannot say.
Accordingly, the judgment of dismissal is reversed with directions for further proceedings in accord herewith.
DOWNEY and ANSTEAD, JJ., and WILLIS, BEN C., Associate Judge (Retired), concur.
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- Cutler v. The City OF Jacksonville Beach, 489 So. 2d 126 (Fla. 1st DCA 1986)