WILLIAM T. GREEN, APPELLANT,
v.
SCHOOL BOARD OF PASCO COUNTY, APPELLEE

Fla. 2d DCA | 2000-02-18
No. 2D99-1096
THREADGILL, A.C.J., and STRINGER, J., Concur.
752 So. 2d 700 Florida District Court of Appeal, Second District (2000) Positive Treatment
Cited by 10 cases

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Synopsis

William Green, a police officer, fell off a retaining wall at Pasco Middle School while conducting a patrol and sued the School Board for negligence. The court reversed summary judgment, holding that the School Board's failure to warn of or correct the dangerous condition was operational negligence not shielded by sovereign immunity, and that a genuine issue of material fact existed regarding whether Green's prior knowledge of the wall absolved the School Board's duty to warn.


Holding

The School Board's alleged failures constituted operational negligence rather than planning-level decisions and therefore were not shielded by sovereign immunity. Additionally, the School Board did not conclusively establish that it should not have anticipated that an invitee with knowledge of the unlit retaining wall might still fall, creating a genuine issue of material fact for jury determination.


Headnotes

[1] A government entity's failure to warn of or correct a known dangerous condition created by its actions constitutes operational negligence, not planning level immunity.

[2] A possessor of land is not liable to invitees for harm caused by a known or obvious danger unless the possessor should anticipate the harm despite the invitee's knowledge…

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Key Quotes

“Once a government entity builds or takes control of property or an improvement, it has the same common law duty as a private landowner to properly maintain and operate the property.”

Establishes the fundamental principle that government entities have common law duties equivalent to private landowners regarding premises liability.

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Facts & Procedural History

Green, a lifelong Dade City resident and former student of Pasco Middle School, was working as a police officer conducting a routine campus patrol at …

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Opinion of the Court
NORTHCUTT, Judge.

NORTHCUTT, Judge.

We reverse the summary final judgment awarded to the School Board of Pasco County in William Green’s suit against it based on premises liability. The School Board’s alleged failure to correct or warn of a known dangerous condition was opera tional negligence, and, therefore, it was not shielded by sovereign immunity. Further, under the circumstances of this cáse there is a genuine issue of material fact as to whether Green’s prior knowledge of the alleged dangerous condition absolved the School Board of its duty to warn of the condition.

While on duty as a Dade City police officer, Green entered the campus of Pasco Middle School late one night to conduct a routine patrol of the premises. As he moved about in the darkness near the school gymnasium, he heard what sounded like gunshots. Green could not identify the source of the shots, so he ran away from the sound as he was trained to do. Running in the dark, Green plummeted off a retaining wall and fell six or eight feet to a parking lot, crushing his ankle.

Green sued the School Board, alleging negligence in its failures to illuminate the area, to erect a guardrail or fence along the retaining wall, and to otherwise warn of the dangerous condition. The School Board sought and obtained a summary judgment on two grounds-first, that its determination whether to install lighting or a guardrail atop the retaining wall was a planning level decision, shielded by sovereign immunity; second, that it had no duty to warn of the condition because Green, a lifelong resident of Dade City who had attended this very school, admitted his prior knowledge of the precipice where he fell. We disagree with both assertions.

Once a government entity builds or takes control of property or an improvement, it has the same common law duty as a private landowner to properly maintain and operate the property. See Trianon Park Condominium Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912 (Fla.1985). Here, Green was an invitee. See § 112.182(a), Fla. Stat. (1997). Thus, the School Board owed him two alternative duties: one, to use ordinary care in keeping the premises in a reasonably safe condition, and, two, to give notice or warning of any latent perils known or which should be known to the owner, but which are not known to the invitee. See Lynch v. Brown, 489 So. 2d 65 (Fla. 1st DCA 1986).

Under the circumstances of this case it is certain that if the School Board were a private landowner it would not be entitled to summary judgment on the question of whether its failure to illuminate the area or erect a guardrail violated its obligation to maintain the premises in a safe condition. See, e.g., Sawyer v. Allied Int’l Holdings, Inc., 707 So. 2d 761 (Fla. 2d DCA 1998); Winsemann v. Travelodge Corp., 205 So. 2d 315 (Fla. 2d DCA 1967); Reed v. Ingham, 125 So. 2d 301 (Fla. 2d DCA 1960). But the School Board argues, and the circuit court concluded, that these failures were aspects of planning level decisions for which the School Board enjoys sovereign immunity, as opposed to operational activities for which it could be held liable. See Department of Transp. v. Neilson, 419 So. 2d 1071 (Fla.1982); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979).

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 plaintiffs 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 prop er maintenance of existing improvements, as explained in Commercial Carrier v. Indian River, 371 So. 2d 1010 (Fla.1979); and (3) the proper construction or installation and design of the improvement plan, as explained in Dept. of Transp. v. 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. The summary judgment in this case is faulty in the same way.

Although Green did not couch his suit precisely in those terms, his complaint can be read to fall within the Collom formulation. As such, Green alleged negligence at the operational level. The School Board was not entitled to summary judgment on the basis of sovereign immunity.

Neither was the summary judgment properly granted under the theory that Green’s prior knowledge of the retaining wall obviated the School Board’s duty to warn. Section 343A of the Restatement (Second) of Torts (1965) provides: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Emphasis supplied.) See Casby v. Flint, 520 So. 2d 281 (Fla.1988) (relying on section 343A to determine the dispositive “duty to warn” issue in a step down case). As the movant for summary judgment, the School Board did not conclusively establish that it should not have anticipated that an invitee who knew of the unprotected ledge nevertheless might fall from it in the darkness. That was a question for the jury. See Lynch, 489 So. 2d 65.

We reverse the summary judgment and remand for further proceedings.

THREADGILL, A.C.J., and STRINGER, J., Concur.


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Citator

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  • Marriott Int'l, Inc. v. Zaira Perez-Melendez, 855 So. 2d 624 (Fla. 5th DCA 2003)
    …due care should have been known, by Marriott and which were not known and would not have been discovered by Perez-Melendez by the exercise of due care. Krol v. City of Orlando, 778 So. 2d 490 (Fla. 5th DCA 2001); Green v. School Bd. of Pasco County, 752 So. 2d 700 (Fla. 2d DCA 2000). Hence we are not presented with the legal issue whether Perez-Melendez was owed a duty of care by Marriot.4 Rather than argue that it did not owe Perez-Melendez a duty of care as an invi [*630] tee, Marriot instead argues that P…
  • Knight v. Waltman, 774 So. 2d 731 (Fla. 2d DCA 2000)
    …91; Ahl, 666 So. 2d at 924; Hancock, 585 So. 2d at 1071. This court recently reversed summary judgment in favor of a school board after a security guard fell from an unprotected ledge while on duty at night. See Green v. School Bd. of Pasco County, 752 So. 2d 700 (Fla. 2d DCA 2000). The school board argued that the security guard knew that the ledge was unprotected. However, this court held that “the School Board did not conclusively establish that it should not have anticipated that an invitee who knew of t…
  • Miller v. Slabaugh, 909 So. 2d 588 (Fla. 2d DCA 2005)
    …in keeping the premises in a reasonably safe condition, and 2) to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the invitee. See also Green v. Sch. Bd. of Pasco County, 752 So. 2d 700, 701 (Fla. 2d DCA 2000). The Zambito court acknowledged that Florida courts have traditionally followed the rule “that a business invitee’s equal or superior knowledge of a hazard discharges the landowner’s duty to warn,” but the court noted that th…

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