WILLIE LEE MOORE, APPELLANT,
v.
CITY OF ST. PETERSBURG, APPELLEE
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Moore sued the City of St. Petersburg for injuries sustained when he fell into a sinkhole caused by a negligently maintained sewer line. The trial court entered judgment for the City notwithstanding a jury verdict for Moore, and the appellate court affirmed on the ground that the City was immune from liability because the operation of a sewage disposal system is a governmental function protected by governmental immunity.
The City is immune from liability because the construction and operation of a sewage disposal system is a governmental function, not a corporate or proprietary function. Absent a direct transaction or confrontation between the plaintiff and the City's agents or employees, and absent evidence of a special duty owed to the plaintiff, the City cannot be held liable for torts committed in the performance of governmental functions.
[1] Governmental immunity is a jurisdictional defense that may be raised at any time, even if not pleaded as an affirmative defense.
[2] The construction and operation of a sewage disposal system constitute a governmental function.
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Join FLexlaw to unlock all legal intelligence“It is well settled that the construction and operation of a sewage disposal system is a governmental function, Buchanan v. City of Miami, Fla.1950, 49 So.2d 336; AIA Mobile Home Park, Inc. v. Brevard County, Fla.App.1971, 246 So.2d 126; Town of Largo v. L & S Bait Company of Tampa, Fla.App.1972, 256 So.2d 412, as opposed to a "corporate or proprietary" function, such as street and sidewalk maintenance.”
Establishes the legal classification that sewage disposal is a governmental function entitled to immunity protection.
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Join FLexlaw to unlock all legal intelligenceMoore fell into a sinkhole located in an alley behind his home that was caused by a leaking sewer line owned and maintained by the City of St. Petersb…
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The plaintiff Moore has appealed a final judgment entered in a negligence action for defendant City of St. Petersburg notwithstanding the jury verdict in favor of Moore. The City has cross-assigned as error the court’s failure to direct a verdict in its favor on the ground that the evidence failed to establish a direct transaction or confrontation between Moore and the City or any of its agents or employees regarding the operation of a governmental function.
Moore filed suit in the lower Court for injuries sustained when he fell in a sink hole located in an alley behind his home, alleging among other things that the City owned and maintained a system of sewers for the City and was duty bound to supervise, maintain and keep said sewer system in good and proper repair; that the City for a period of time prior to the accident “negligently and carelessly permitted and allowed the sewer line to fall into a state of disrepair; that the sewer line as a result of a leakage in same caused an erosion of the earth which led to a cave-in. That said cave-in occurred next to the Plaintiff’s property where his garbage cans were located” and that Plaintiff “fell into the heretofore mentioned caved-in sewer area, causing injuries.”
The only affirmative defenses raised by the City were (1) sole proximate cause and (2) assumption of risk. It did not raise governmental immunity as an affirmative defense, nor did it amend its plead-iiigs at any point to raise such defense. However, at the close of the plaintiff’s case the City moved for a directed verdict on the ground of governmental immunity.
The lower Court based its order granting the motion for judgment in accordance with the motion for directed verdict on the ground that Moore did not produce competent evidence to establish that the City was placed on actual notice of the alleged defect or that the alleged defect existed for such a long period of time that the City would have had constructive notice thereof.
Even if the appellant had produced competent evidence of actual or constructive notice to the City, the motion for directed verdict should have been granted on another ground. A correct decision can be supported on grounds other than those assigned by the lower Court. Matthews v. Matthews, Fla.App.1965, 177 So.2d 497; Mathews v. City of Tampa, Fla.App.1969, 227 So.2d 211.
Governmental immunity is not an affirmative defense, but is jurisdictional and may be raised at any time. Schmauss v. Snoll, Fla.App.1971, 245 So.2d 112.
It is well settled -that the construction and operation of a sewage disposal system is a governmental function, Buchanan v. City of Miami, Fla.1950, 49 So.2d 336; AIA Mobile Home Park, Inc. v. Brevard County, Fla.App.1971, 246 So.2d 126; Town of Largo v. L & S Bait Company of Tampa, Fla.App.1972, 256 So.2d 412, as opposed to a “corporate or proprietary” function, such as street and sidewalk maintenance.
*551There was no evidence of privity between the plaintiff and the employees of the sewer department of the city, nor of a special duty owed to plaintiff. The City cannot be held liable when its agents or employees commit a tort in the performance of a governmental function, if there was no direct transaction or confrontation between the one against whom the tort was committed and the agent or employee. City of Tampa v. Davis, Fla.App.1969, 226 So.2d 450; Mathews v. City of Tampa, supra.
The judgment appealed is, therefore
Affirmed.
LILES, A. C. J., and McNULTY, J., concur.
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Eve Postell v. State, 383 So. 2d 1159 (Fla. 3d DCA 1980)…t ruling of a trial court will be sustained regardless of the incorrect reasons assigned for the ruling. Congregation Temple De Hirsch v. Aronson, 128 So. 2d 585 (Fla.1961); Green v. Bruns, 102 So. 2d 610 (Fla.1958); Moore v. City of St. Petersburg, 281 So. 2d 549 (Fla. 2d DCA 1973); Leavstrom v. Muston, 119 So. 2d 315 (Fla. 3d DCA 1960). Postell was, in fact, ineligible for classification as a youthful offender because she did not meet the separate requirement of subsection (a) of Section 958.04(1), that is,…
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U.S. Home Corp. v. Suncoast Utils., Inc., 454 So. 2d 601 (Fla. 2d DCA 1984)…ohn, 238 So. 2d 290 (Fla.1970). A trial court’s decision, even when based on an erroneous theory, must be affirmed if the evidence or an alternative theory supports its decision. Applegate, [*605] 377 So. 2d at 1152; Moore v. City of St. Petersburg, 281 So. 2d 549 (Fla. 2d DCA), cert. denied, 289 So. 2d 730 (Fla.1973). Here, as noted above, the evidence amply supports the court’s decision as to liability, B. Award of Damages. 1. Oldsmar project. Although U.S. Home is liable for breach of the entire contrac…
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Sebring Utils. Comm'n v. Sicher, 509 So. 2d 968 (Fla. 2d DCA 1987)…unequivocal. Arnold v. Shumpert, 217 So. 2d 116 (Fla.1968). In addition, this court has specifically held that governmental immunity is not an affirmative defense, but is jurisdictional and may be raised at any time. Moore v. City of St. Petersburg, 281 So. 2d 549 (Fla. 2d DCA 1973), citing Schmauss v. Snoll, 245 So. 2d 112 (Fla. 3d DCA 1971); State, Department of Highway Safety v. Kropff, 491 So. 2d 1252 (Fla. 3d DCA 1986); Kirk v. Kennedy, 231 So. 2d 246 (Fla. 2d DCA 1970). Therefore, we turn to the record…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The City OF Tampa v. Davis, 226 So. 2d 450 (Fla. 2d DCA 1969)
- Schmauss v. Snoll, 245 So. 2d 112 (Fla. 3d DCA 1971)
- Matthews v. Olive M. Matthews & Soft Water Laundry, Inc., 177 So. 2d 497 (Fla. 2d DCA 1965)
- A1A Mobile Home Park, Inc. v. Brevard Cnty., 246 So. 2d 126 (Fla. 4th DCA 1971)
- Mathews v. The City OF Tampa, 227 So. 2d 211 (Fla. 2d DCA 1969)
- Town OF Largo v. L & S Bait Co. OF Fla., Inc., 256 So. 2d 412 (Fla. 2d DCA 1972)