MILTON STEINHARDT AND ESTHER STEINHARDT, HIS WIFE, PETITIONERS,

v.

TOWN OF NORTH BAY VILLAGE, A MUNICIPAL CORPORATION, RESPONDENT

Fla. | 1962-05-23

No. 31503

ROBERTS, C. J., THORNAL, O’CON-NELL and CALDWELL, JJ., concur., DREW, J., dissents.

141 So. 2d 737 Florida Supreme Court (1962) Caution

Cited by 16 cases

Topics

Actionable Negligence Actionability Negligence

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Opinion of the Court

PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the petition is without merit. Therefore, the writ must be and is hereby discharged.

It is so ordered.

ROBERTS, C. J., THORNAL, O’CON-NELL and CALDWELL, JJ., concur.

DREW, J., dissents.

DREW, Justice

(dissenting).

I agree that that portion of the complaint in this cause asserting that the negligence of the municipality consisting of employing untrained and incompetent firemen or, as the district court described it, “failure to properly provide a city service” does not constitute actionable negligence under the Hargrove case1 and that, therefore, as to that portion of the complaint the decision of the district court is not in conflict with the cited case. The complaint, however, also alleges negligence of the municipality arising out of the acts of its employees in “dispatching a fire truck improperly equipped”2 as a re-*738suit of which plaintiffs’ house and personal property were totally destroyed. Because of my inability to distinguish the negligence of the city alleged in that portion of the complaint appearing in the footnote from the negligence of the city alleged in the Hargrove case “in leaving the jail unattended and the prisoner unprotected”, I am forced to the conclusion that to that extent the decision of the district court is in direct conflict with the decision in that case. I would quash the district court’s decision and remand with directions to set aside the action of the trial court dismissing the complaint and entering final judgment and to proceed further in accordance with these views.

. The exact language of this paragraph of the complaint is as follows:

“5. That on the 13th day of May, 1960 at or approximately 6:00 o’clock in the afternoon, a fire occurred engulfing the plaintiffs’ improved real property as above described. That the defendant municipal corporation, pursuant to its legal duty and obligation, by and through its authorized agents, dispatched to the scene of the fire as aforedescribed, fire-fighting equipment personnel. That in the attempt to extinguish the fire engulfing plaintiff’s property the defendant municipal corporation was negligent by its acts of commission and omission as hereinafter set out:

“A. That the defendant dispatched a fire truck to be utilized in extinguishing the aforedescribed fire, which fire truck was improperly equipped, i. e.: that the *738fire truck was to have contained thereon at all times three hundred (300) gallons of water to be utilized to extinguish fires. That the fire truck so dispatched to the fire as aforo.described did not have three hundred (300) gallons of water thereon for the defendant, through its agents and /or employees, utilized said water several hours prior to the fire aforedescribed for the purpose of watering lawns and the defendant, its agents and/or employees, forgot to replenish the supply upon said fire truck; and/or in the alternative;

“g # * *

Dissent

DREW, Justice

(dissenting).

I agree that that portion of the complaint in this cause asserting that the negligence of the municipality consisting of employing untrained and incompetent firemen or, as the district court described it, “failure to properly provide a city service” does not constitute actionable negligence under the Hargrove case1 and that, therefore, as to that portion of the complaint the decision of the district court is not in conflict with the cited case. The complaint, however, also alleges negligence of the municipality arising out of the acts of its employees in “dispatching a fire truck improperly equipped”2 as a re- suit of which plaintiffs’ house and personal property were totally destroyed. Because of my inability to distinguish the negligence of the city alleged in that portion of the complaint appearing in the footnote from the negligence of the city alleged in the Hargrove case “in leaving the jail unattended and the prisoner unprotected”, I am forced to the conclusion that to that extent the decision of the district court is in direct conflict with the decision in that case. I would quash the district court’s decision and remand with directions to set aside the action of the trial court dismissing the complaint and entering final judgment and to proceed further in accordance with these views.

. Hargrove v. Town of Cocoa Beach, Fla. 1957, 96 So. 2d 130.

. The exact language of this paragraph of the complaint is as follows:

“5. That on the 13th day of May, 1960 at or approximately 6:00 o’clock in the afternoon, a fire occurred engulfing the plaintiffs’ improved real property as above described. That the defendant municipal corporation, pursuant to its legal duty and obligation, by and through its authorized agents, dispatched to the scene of the fire as aforedescribed, fire-fighting equipment personnel. That in the attempt to extinguish the fire engulfing plaintiff’s property the defendant municipal corporation was negligent by its acts of commission and omission as hereinafter set out:

“A. That the defendant dispatched a fire truck to be utilized in extinguishing the aforedescribed fire, which fire truck was improperly equipped, i. e.: that the fire truck was to have contained thereon at all times three hundred (300) gallons of water to be utilized to extinguish fires. That the fire truck so dispatched to the fire as aforo.described did not have three hundred (300) gallons of water thereon for the defendant, through its agents and /or employees, utilized said water several hours prior to the fire aforedescribed for the purpose of watering lawns and the defendant, its agents and/or employees, forgot to replenish the supply upon said fire truck; and/or in the alternative;

“g # * *

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Dep't of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906 (Fla. 1995)

…, 399 So. 2d 1145 (Fla.1981). . Florida courts have also recognized the broad discretion afforded to government agencies that allocate public services. In Steinhardt v. Town of North Bay Village, 132 So. 2d 764 (Fla. 3d DCA 1961), cert. discharged, 141 So. 2d 737 (Fla.1962), plaintiffs sued the city for failing to provide adequate fire protection services. The district court affirmed the trial court's dismissal of the complaint, and stated: [T]he elected officials of the city were undertaking to perform fun…
Schmauss v. Snoll, 245 So. 2d 112 (Fla. 3d DCA 1971)

…different from that owed to any other member of the public. Therefore, the city is not liable under the rule of respondeat superior.” See generally: Steinhardt v. Town of North Bay Village, Fla.App.1961, 132 So. 2d 764, cert. discharged, Fla.1962, 141 So. 2d 737; Arnold v. Shumpert, Fla.1968, 217 So. 2d 116. Next, plaintiff-Schmauss urges that this court carve out an exception to the doctrine of sovereign immunity which would permit suit for “negligent nuisances” constituting a “nuisance and a trap” for mo…
Modlin v. Wash. Ave. Food Ctr., Inc., 178 So. 2d 596 (Fla. 3d DCA 1965)

…negligence of the city alleged in the Hargrove case * * * I am forced to the conclusion that to that extent the decision of the district court is in direct conflict with the decision in that case.” Steinhardt v. Town of North Bay Village, Fla.1962, 141 So. 2d 737.…

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Authorities Cited

Ervine Hargrove v. Town OF Cocoa Beach, 96 So. 2d 130 (Fla. 1957)

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