A. DONALD BAILEY, RAYMOND BAILEY AND VET'S WHOLESALE NURSERY, INC., APPELLANTS,
v.
BOARD OF COUNTY COMMISSIONERS, HILLSBOROUGH COUNTY, FLORIDA, APPELLEE
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The court reversed a dismissal with prejudice of negligence and trespass claims against a county board, holding that dismissal without prejudice was appropriate because the complaint stated a potential cause of action based on the county's undertaking of drainage system operation.
A complaint alleging negligence and trespass against a county for its operation and maintenance of a drainage system states a potential cause of action and should not be dismissed with prejudice.
[1] When a county undertakes the operation, control, and maintenance of a drainage system, it assumes a duty to perform such service with reasonable care, and a complaint all…
Previewing 1 of 1 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“if Hillsborough had undertaken to provide service, it assumes the responsibility to do so with reasonable care”
The court's statement of the legal principle governing when a municipality assumes duty of care for services it undertakes to provide.
Bailey sued Hillsborough County Board of Commissioners for negligence and trespass related to the county's operation, control, and maintenance of a dr…
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BLUE, Judge.
A. Donald Bailey, Raymond Bailey, and Vet’s Wholesale Nursery, Inc., (collectively Bailey) appeal the dismissal with prejudice of their complaint alleging negligence and trespass against the Board of County Commissioners, Hillsborough County, Florida (Hillsborough). Although we agree with the ruling dismissing the complaint, we conclude the trial court erred in dismissing with prejudice.
This court has recently decided a case involving a similar factual situation and the same defendant. See Nanz v. SWFMD and Hillsborough County, 617 So. 2d 735 (2d DCA 1993). In Nanz, we reversed the dismissal of a complaint which alleged that Hillsborough County had undertaken the operation, control and maintenance of a drainage system. We determined that if Hillsborough had undertaken to provide service, it assumes the responsibility to do so with reasonable care. Having determined it is possible to state a cause of action, we hold the trial court erred in dismissing Bailey’s complaint with preju dice. Accordingly, we reverse the order appealed to the extent it purports to dismiss the complaint with prejudice, and remand for further proceedings in conformance with this opinion.
Reversed and remanded.
THREADGILL, A.C.J., and PATTERSON, J., concur.
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Cited By
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Sokoloff v. Nat'l Attorneys' Title Ins. Co., 648 So. 2d 246 (Fla. 4th DCA 1994)…ne more opportunity to plead a factual case which will meet class action criteria. See Frankel v. City of Miami Beach, 340 So. 2d 463 (Fla.1976); Cohen v. Camino Sheridan, Inc., 466 So. 2d 1212 (Fla. 4th DCA 1985); Bailey v. Board of County Comm’rs, 619 So. 2d 346 (Fla. 2d DCA 1993); Estate of Bobinger v. Deltona Corp., 563 So. 2d 739 (Fla. 2d DCA 1990). Reversed. STONE and POLEN, JJ., concur.…
Authorities Cited
- Duane and Linda Nanz v. Sw. Fla. Water Mgmt. Dist., 617 So. 2d 735 (Fla. 2d DCA 1993)