MARCIA K. FELTNER, WIDOW OF ROBERT MILES FELTNER, DECEASED, APPELLANT,
v.
JOHN DAVID FLUDER ET AL., APPELLEES
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Widow of a man killed in a highway collision seeks damages from the Florida Department of Transportation for negligent design, construction, and maintenance of the highway intersection. The court reverses a dismissal order, holding that sovereign immunity had been waived for the relevant time period and the complaint states a valid cause of action.
The dismissal was error. The allegations of the amended complaint are sufficient to state a cause of action against the State of Florida Department of Transportation because sovereign immunity had been waived as to the relevant tort by Chapter 69-116, Laws of Florida, and Chapter 71-165, Laws of Florida (effective July 1, 1971) revived and clarified that waiver for causes of action arising between July 1, 1969 and July 1, 1970.
[1] A waiver of sovereign immunity enacted by the legislature may be revived by subsequent legislative action, preserving jurisdiction over causes of action arising during th…
[2] Allegations in a complaint are accepted as true for the purpose of a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“On the motion to dismiss we accept as true the allegations of the amended complaint.”
Establishes the standard of review for motions to dismiss requiring acceptance of all well-pleaded allegations as true.
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Join FLexlaw to unlock all legal intelligenceRobert Miles Feltner died on February 9, 1970, as a result of an automobile collision at a state highway intersection. The plaintiff alleged that the …
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Appellant seeks review of an order dismissing with prejudice her amended complaint against the State of Florida Department of Transportation. We conclude that this was error and reverse.
The amended complaint alleged, among other things, that as a result of the negligent design, construction and maintenance of a certain state highway intersection a condition was created which on February 9, 1970, caused an automobile collision resulting in the death of the plaintiff’s spouse while operating his motor vehicle on the highway. The motion to dismiss, and supplemental motion to dismiss, filed by the State of Florida Department of Transportation asserted a lack of jurisdiction because of sovereign immunity, and the failure to state a cause of action. The order dismissing the amended complaint with prejudice does not set forth the basis upon which it was entered.
It would appear that at least some of the conduct alleged to be negligent occurred after July 1, 1969. This is the effective date of Chapter 69-116, Laws of Florida, by which sovereign immunity was waived as to certain torts. The question of whether Chapter 69-357, Laws of Florida (which terminated the waiver of sovereign immunity effective July 1, 1970), nullified the court’s jurisdiction over the pending cause, is now moot. Chapter 71-165, Laws of Florida, effective July 1, 1971, expresses the legislative intent that the waiver of sovereign immunity authorized by Chapter 69-116, Laws of Florida, is revived as to causes of action arising during the period from July 1, 1969 to July 1, 1970, and that the courts of this state shall have continuing jurisdiction over such actions until final judgment and satisfaction thereof.
On the motion to dismiss we accept as true the allegations of the amended complaint. Kest v. Nathanson, Fla.App.1968, 216 So.2d 233. The allegations are sufficient to state a cause of action against the State of Florida Department of Transportation. We are not presently concerned with either questions of proof or availability of defenses not appearing on the face of the amended complaint.
The order appealed is reversed and this cause remanded for further proceedings consistent herewith.
REED, C. J., and CROSS, J., concur.
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Citator
Cited By
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Elliott v. Hernando Cnty. & Auto-Owners Ins. Co., 281 So. 2d 395 (Fla. 2d DCA 1973)….1973, 279 So. 2d 1 [Op. filed May 23, 1973]. In testing a complaint on a motion to dismiss, all facts properly pleaded therein are deemed admitted. Pourtless v. Suwannee Hotel Company, Fla.App.1966, 184 So. 2d 512; Feltner v. Fluder, Fla.App.1971, 252 So. 2d 823. The question of the sufficiency of the evidence which the plaintiff will likely be able to produce at a hearing on the merits is irrelevant. Kest v. Nathanson, Fla.App.1968, 216 So. 2d 233. The amended complaint in the case sub judice is sufficien…
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State v. Feltner, 266 So. 2d 670 (Fla. 1972)…CARLTON, Acting Chief Justice: The State Department of Transportation appeals from a decision of the District Court of Appeal, Fourth District, Feltner v. Fluder, 252 So. 2d 823 (4th D.C.A.Fla.1971), relating to the State’s immunity for torts committed by its officers, employees or servants between July 1, 1969 and July 1, 1970. We affirm the appealed decision. In its 1969 Session, the Legislature enacted Laws 1969, ch. 69…
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State of Fla. Dep't of Health & Rehabilitative Servs. v. Willits, 257 So. 2d 590 (Fla. 4th DCA 1972)…PER CURIAM. Affirmed. See Feltner v. Fluder, Fla.App.1971, 252 So. 2d 823. REED, C. J., and WALDEN and OWEN, JJ., concur.…
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- Kest v. Nathanson, 216 So. 2d 233 (Fla. 4th DCA 1968)