39 Fla. L. Weekly D1689b
Torts — Negligence — Stormwater management — Immunity —
Action by property owners against district board of trustees for state college
alleging negligent design and operation of stormwater management system, which
partially failed during an extraordinary rain event due to breach in pond
retaining wall, resulting in overflow which ultimately ran onto and through
plaintiffs’ property — No error in ruling that district was entitled to
immunity under section 373.443 for plaintiffs’ allegations of operational
negligence — Statute facially provides immunity to state or district, or its
agents, for partial/total failures of defined systems/works “by virtue of”
certain statutorily-defined activities, including control or regulation of
stormwater management systems — Statute’s broad scope of immunity encompasses
allegations related to district’s operational-level activities — Alternate
claim that district established a stormwater management system that was designed
so deficiently as to create a known dangerous condition, which imposed on
district a duty to warn or protect the public, was unsupported by any evidence
that district knew prior to extraordinary rain water event that its stormwater
management system was other than one that was designed to handle all but the
most extreme rainfalls — Discussion of interplay between section 768.28 and
section 373.443
Action by property owners against district board of trustees for state college
alleging negligent design and operation of stormwater management system, which
partially failed during an extraordinary rain event due to breach in pond
retaining wall, resulting in overflow which ultimately ran onto and through
plaintiffs’ property — No error in ruling that district was entitled to
immunity under section 373.443 for plaintiffs’ allegations of operational
negligence — Statute facially provides immunity to state or district, or its
agents, for partial/total failures of defined systems/works “by virtue of”
certain statutorily-defined activities, including control or regulation of
stormwater management systems — Statute’s broad scope of immunity encompasses
allegations related to district’s operational-level activities — Alternate
claim that district established a stormwater management system that was designed
so deficiently as to create a known dangerous condition, which imposed on
district a duty to warn or protect the public, was unsupported by any evidence
that district knew prior to extraordinary rain water event that its stormwater
management system was other than one that was designed to handle all but the
most extreme rainfalls — Discussion of interplay between section 768.28 and
section 373.443
CHARLES AND VIRGINIA BARNES, Appellant, v. THE DISTRICT BOARD OF TRUSTEES OF
ST. JOHNS RIVER STATE COLLEGE, FLORIDA, Appellee. 1st District. Case No.
1D13-5067. Opinion filed August 12, 2014. An appeal from the Circuit Court for
Clay County. Don H. Lester, Judge. Counsel: Charles Lee Stambaugh of Stambaugh
& Associates, P.A., Jacksonville, for Appellant. Lisa J. Augspurger and
Maria D. Torsney of Bush & Augspurger, P.A., Orlando; Richard Burton Bush
and Audra Michelle Bryant of Bush & Augspurger, P.A. Tallahassee, for
Appellee.
ST. JOHNS RIVER STATE COLLEGE, FLORIDA, Appellee. 1st District. Case No.
1D13-5067. Opinion filed August 12, 2014. An appeal from the Circuit Court for
Clay County. Don H. Lester, Judge. Counsel: Charles Lee Stambaugh of Stambaugh
& Associates, P.A., Jacksonville, for Appellant. Lisa J. Augspurger and
Maria D. Torsney of Bush & Augspurger, P.A., Orlando; Richard Burton Bush
and Audra Michelle Bryant of Bush & Augspurger, P.A. Tallahassee, for
Appellee.
(MAKAR, J.) A state college’s stormwater management system is the focus of
this dispute. Charles and Virginia Barnes sued the District Board of Trustees of
St. Johns River State College for damages to their property from water alleged
to have overflown from a retention pond on the District’s campus. The trial
court ruled the District was entitled to immunity under section 373.443, Florida
Statutes. We affirm.
this dispute. Charles and Virginia Barnes sued the District Board of Trustees of
St. Johns River State College for damages to their property from water alleged
to have overflown from a retention pond on the District’s campus. The trial
court ruled the District was entitled to immunity under section 373.443, Florida
Statutes. We affirm.
I.
The Barneses’ lakefront home, constructed in 2000, is on Cedar Road, Orange
Park, Florida. Nearby at a significantly higher elevation is St. Johns River
Community College, owned and operated by the District, a legislatively-created
entity. The College’s campus has seven retention ponds, each a part of the
District’s stormwater management system, which is permitted by and under the
regulatory oversight of the St. Johns River Water Management District. In the
past and to the present, surface water naturally flows from the District’s
uplands property toward the navigable water body known as Doctors Lake, on which
the Barneses’ property is located, and then eventually into the St. Johns River.
Park, Florida. Nearby at a significantly higher elevation is St. Johns River
Community College, owned and operated by the District, a legislatively-created
entity. The College’s campus has seven retention ponds, each a part of the
District’s stormwater management system, which is permitted by and under the
regulatory oversight of the St. Johns River Water Management District. In the
past and to the present, surface water naturally flows from the District’s
uplands property toward the navigable water body known as Doctors Lake, on which
the Barneses’ property is located, and then eventually into the St. Johns River.
On August 14, 2009, an exceptionally heavy seasonal rainfall caused a
retention pond in a neighboring subdivision to overflow into one of the
District’s retention ponds, Pond F, causing one of its retaining walls to
breach, sending overflow waters downhill towards Doctors Lake, through wetlands
into a drainage pipe that goes under railroad tracks parallel to Cedar Road, and
ultimately onto and through the Barneses’ property. Since that time, the College
has modified Pond F, increasing its capacity to accommodate a 100-year storm
event versus the lesser storm threshold previously in place.
retention pond in a neighboring subdivision to overflow into one of the
District’s retention ponds, Pond F, causing one of its retaining walls to
breach, sending overflow waters downhill towards Doctors Lake, through wetlands
into a drainage pipe that goes under railroad tracks parallel to Cedar Road, and
ultimately onto and through the Barneses’ property. Since that time, the College
has modified Pond F, increasing its capacity to accommodate a 100-year storm
event versus the lesser storm threshold previously in place.
In November 2011, the Barneses sued the College and the subdivision’s
homeowners association (which is not a part of this appeal), its initial claim
one of negligence against the District for failing to design, “adapt,” and
“operate in a responsible way” its stormwater management system. An inverse
condemnation claim was added, but was ultimately resolved against the Barneses,
who have not contested that ruling on appeal, focusing exclusively on their
negligence claim.
homeowners association (which is not a part of this appeal), its initial claim
one of negligence against the District for failing to design, “adapt,” and
“operate in a responsible way” its stormwater management system. An inverse
condemnation claim was added, but was ultimately resolved against the Barneses,
who have not contested that ruling on appeal, focusing exclusively on their
negligence claim.
The District raised various defenses including immunity under (a) article X,
section 13, of the Florida Constitution, as implemented via section 768.28,
Florida Statutes, and (b) section 373.443, Florida Statutes. After discovery,
the District moved for summary judgment on the two claims. The District asserted
that the alleged negligent conduct related solely to planning and design level
functions of the storm water management system and a failure to modernize the
ponds, which it claimed were immune from tort liability under 768.28. Regarding
section 373.443, the District argued it was entitled to absolute immunity from
liability for damages, which were allegedly caused by the failure of its storm
water management system.
section 13, of the Florida Constitution, as implemented via section 768.28,
Florida Statutes, and (b) section 373.443, Florida Statutes. After discovery,
the District moved for summary judgment on the two claims. The District asserted
that the alleged negligent conduct related solely to planning and design level
functions of the storm water management system and a failure to modernize the
ponds, which it claimed were immune from tort liability under 768.28. Regarding
section 373.443, the District argued it was entitled to absolute immunity from
liability for damages, which were allegedly caused by the failure of its storm
water management system.
The Barneses responded that factual issues existed about the District’s
operation of its water management system and that the District was negligent by
constructing the least costly design of its water management system thereby
creating a known hazard. At the hearing on its motion, the District argued it
was entitled to immunity under section 768.28 because its ponds are designed
rather than operated; the only thing the District could have done to address the
Barneses’ concern was to have redesigned or reconfigured the ponds, which would
be discretionary acts immune from liability. It also argued that immunity under
section 373.443 applied because the partial failure of the system (i.e., the
breach of a retaining wall on Pond F) is the type of incident the statute was
intended to shelter from liability. The Barneses countered, however, that the
District knew its system had shortcomings; that college personnel toured all the
ponds, finding three (but not Pond F) had deviations from the original design or
were missing components that controlled water levels; and that flood waters at
the College’s performing arts building were pumped into Pond F exacerbating
problems for the Barneses’ property. The basis for these assertions was
contained in two depositions, one by a District employee charged with facilities
management and the other by an engineer with the St. Johns River Water
Management District, both filed belatedly in the trial court, but which were
relied upon by the trial judge in his rulings.
operation of its water management system and that the District was negligent by
constructing the least costly design of its water management system thereby
creating a known hazard. At the hearing on its motion, the District argued it
was entitled to immunity under section 768.28 because its ponds are designed
rather than operated; the only thing the District could have done to address the
Barneses’ concern was to have redesigned or reconfigured the ponds, which would
be discretionary acts immune from liability. It also argued that immunity under
section 373.443 applied because the partial failure of the system (i.e., the
breach of a retaining wall on Pond F) is the type of incident the statute was
intended to shelter from liability. The Barneses countered, however, that the
District knew its system had shortcomings; that college personnel toured all the
ponds, finding three (but not Pond F) had deviations from the original design or
were missing components that controlled water levels; and that flood waters at
the College’s performing arts building were pumped into Pond F exacerbating
problems for the Barneses’ property. The basis for these assertions was
contained in two depositions, one by a District employee charged with facilities
management and the other by an engineer with the St. Johns River Water
Management District, both filed belatedly in the trial court, but which were
relied upon by the trial judge in his rulings.
In its rulings, the trial court noted that the Barneses’ amended complaint
raised both a negligent design claim and an operational negligence claim, the
latter consisting solely of the conclusory allegation that the District engaged
in “operational negligence in failing to operate [its] water management system
in a responsible way[.]” As to immunity under section 768.28, the trial court
ruled that the Barneses’ negligence claim was not barred because “[t]here at
least appears to be a disputed issue of material fact on the issue of whether
there is operational negligence on the part of the District which caused damage
to the plaintiffs,” thereby precluding summary judgment. Turning to the claim of
immunity under section 373.443, the trial court held that “[t]here is no dispute
that the plaintiffs’ claims herein are founded on the District’s control of a
‘stormwater management system,’ ‘impoundment’ or ‘work’ regulated by Chapter
373, the partial or total failure of which is alleged to have caused the
plaintiffs’ damages.” As such, it held that the “District is immune from
liability for the negligence claim asserted by the plaintiffs.” In doing so, the
trial court tacitly concluded that section 373.443 extended immunity to the
Barneses’ operational level negligence claims, ones that would otherwise be
actionable under section 768.28’s waiver of immunity. A partial final judgment
was later entered in favor of the District on the negligence claim as well as
the inverse condemnation claim (in part because the Barneses had not lost all
use of their property). As mentioned previously, the Barneses challenge only the
entry of judgment on their negligence claim.
raised both a negligent design claim and an operational negligence claim, the
latter consisting solely of the conclusory allegation that the District engaged
in “operational negligence in failing to operate [its] water management system
in a responsible way[.]” As to immunity under section 768.28, the trial court
ruled that the Barneses’ negligence claim was not barred because “[t]here at
least appears to be a disputed issue of material fact on the issue of whether
there is operational negligence on the part of the District which caused damage
to the plaintiffs,” thereby precluding summary judgment. Turning to the claim of
immunity under section 373.443, the trial court held that “[t]here is no dispute
that the plaintiffs’ claims herein are founded on the District’s control of a
‘stormwater management system,’ ‘impoundment’ or ‘work’ regulated by Chapter
373, the partial or total failure of which is alleged to have caused the
plaintiffs’ damages.” As such, it held that the “District is immune from
liability for the negligence claim asserted by the plaintiffs.” In doing so, the
trial court tacitly concluded that section 373.443 extended immunity to the
Barneses’ operational level negligence claims, ones that would otherwise be
actionable under section 768.28’s waiver of immunity. A partial final judgment
was later entered in favor of the District on the negligence claim as well as
the inverse condemnation claim (in part because the Barneses had not lost all
use of their property). As mentioned previously, the Barneses challenge only the
entry of judgment on their negligence claim.
II.
Whether immunity exists in this case hinges on whether section 373.443
provides a broader scope of immunity than that provided by section 768.28 as
applied to the District’s stormwater management system. The trial court ruled
that section 768.28 does not provide the District with immunity from potential
liability for the allegations of operational negligence the Barneses have
asserted, a ruling the District does not contest. The specific task is thereby
to determine whether the Barneses’ operational negligence claims survive the
protective umbrella that section 373.443 provides for the stormwater management
system at issue.
provides a broader scope of immunity than that provided by section 768.28 as
applied to the District’s stormwater management system. The trial court ruled
that section 768.28 does not provide the District with immunity from potential
liability for the allegations of operational negligence the Barneses have
asserted, a ruling the District does not contest. The specific task is thereby
to determine whether the Barneses’ operational negligence claims survive the
protective umbrella that section 373.443 provides for the stormwater management
system at issue.
We turn then to the text of section 373.443, Florida Statutes, which was
enacted in 1972 to provide immunity for the partial or total failure of dams and
other listed public works, but which was amended in 1989 to include “stormwater
management systems” within its scope. The statute, entitled “Immunity from
liability,” reads as follows (with 1989 amendments in bold):
enacted in 1972 to provide immunity for the partial or total failure of dams and
other listed public works, but which was amended in 1989 to include “stormwater
management systems” within its scope. The statute, entitled “Immunity from
liability,” reads as follows (with 1989 amendments in bold):
No action shall be brought against the state or district, or any
agents or employees of the state or district, for the recovery of damages caused
by the partial or total failure of any stormwater management system, dam,
impoundment, reservoir, appurtenant work, or works upon the ground that the
state or district is liable by virtue of any of the following:
(1) Approval of the permit for construction or
alteration.
(2) The issuance or enforcement of any order relative to maintenance
or operation.
(3) Control or regulation of stormwater management systems,
dams, impoundments, reservoirs, appurtenant work, or works regulated under this
chapter.
(4) Measures taken to protect against failure during
emergency.
§ 373.443, Fla. Stat. (2009), amended by ch. 89-279, § 23, Laws of
Fla. (1989) (emphasis added). The 1989 Act added the definition of a “stormwater
management system,” which has remained unchanged to date:
Fla. (1989) (emphasis added). The 1989 Act added the definition of a “stormwater
management system,” which has remained unchanged to date:
[A] system which is designed and constructed or implemented to
control discharges which are necessitated by rainfall events, incorporating
methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water
to prevent or reduce flooding, overdrainage, environmental degradation, and
water pollution or otherwise affect the quantity and quality of discharges from
the system.
§ 373.403(10), Fla. Stat. (added by ch. 89-279, § 11, Laws of Florida
(1989)). As of 1989, the statute facially provides immunity to the state or a
district (or its agents) for partial/total failures of the defined systems/works
“by virtue of any of” the four statutorily-defined activities (permit approvals;
maintenance/operation orders; control/regulation of systems/works; and emergency
measures). Only the third activity — the “[c]ontrol or regulation of stormwater
management systems” — is at issue in this appeal.
(1989)). As of 1989, the statute facially provides immunity to the state or a
district (or its agents) for partial/total failures of the defined systems/works
“by virtue of any of” the four statutorily-defined activities (permit approvals;
maintenance/operation orders; control/regulation of systems/works; and emergency
measures). Only the third activity — the “[c]ontrol or regulation of stormwater
management systems” — is at issue in this appeal.
No court has addressed the post-1989 revisions to the statute as they apply
to a stormwater management system. But the Florida Supreme Court in Southwest
Florida Water Management District v. Nanz, 642 So. 2d 1084 (Fla. 1994)
discussed the 1987 version of the statute, whose language is identical to
today’s version other than its exclusion of “stormwater management systems.” The
legal question the supreme court addressed was: “Does section 373.443, Florida
Statutes (1987), immunize a water management district from liability for damages
arising from the failure of a stormwater management system?” Id. at 1085.
Under the 1987 version of the statute, the majority said it did not, holding
that the water management district was potentially liable for damages caused by
the failure of its stormwater management system arising from the negligent
operational-level activities alleged by Nanz. Id. at 1087. In reaching
this conclusion, the majority noted that the district did not have “specific
immunity” under the 1987 version of the statute, which did not include
stormwater management systems at that time. The majority did not consider
whether immunity might apply to any “dam, impoundment, reservoir, appurtenant
work, or works” the district controlled or regulated as a subpart of its
existing stormwater management system. Instead, the majority addressed only
whether the district enjoyed “general immunity” under section 768.28, Florida
Statutes, for the negligent acts alleged, which are summarized as follows:
to a stormwater management system. But the Florida Supreme Court in Southwest
Florida Water Management District v. Nanz, 642 So. 2d 1084 (Fla. 1994)
discussed the 1987 version of the statute, whose language is identical to
today’s version other than its exclusion of “stormwater management systems.” The
legal question the supreme court addressed was: “Does section 373.443, Florida
Statutes (1987), immunize a water management district from liability for damages
arising from the failure of a stormwater management system?” Id. at 1085.
Under the 1987 version of the statute, the majority said it did not, holding
that the water management district was potentially liable for damages caused by
the failure of its stormwater management system arising from the negligent
operational-level activities alleged by Nanz. Id. at 1087. In reaching
this conclusion, the majority noted that the district did not have “specific
immunity” under the 1987 version of the statute, which did not include
stormwater management systems at that time. The majority did not consider
whether immunity might apply to any “dam, impoundment, reservoir, appurtenant
work, or works” the district controlled or regulated as a subpart of its
existing stormwater management system. Instead, the majority addressed only
whether the district enjoyed “general immunity” under section 768.28, Florida
Statutes, for the negligent acts alleged, which are summarized as follows:
The present complaint alleges that the District breached its duty of
care by “fail[ing] to properly maintain, operate, and open flood gates and or
locks,” by “fail[ing] to properly regulate the flow of water in the creeks,
rivers, canals, and lakes surrounding and/or near Plaintiffs’ real property,”
and by “fail[ing] to properly dredge, clean, and otherwise operate, control,
and/or maintain the drainage system.” The complaint summarizes: “Defendants, by
their operational activities, effectively blocked the natural flow of water
unnecessarily, causing the water . . . to stop up and then back flow in a
southerly direction, flooding Plaintiff’s property.
642 So. 2d at 1087-88. Based on the complaint’s allegations, the majority
held that “a claim of operational-level negligence” was pleaded for which
section 768.28 waived immunity. Id. As such, the “District is potentially
liable for the alleged acts, and the trial court erred in dismissing the
complaint.” Id. at 1088.
held that “a claim of operational-level negligence” was pleaded for which
section 768.28 waived immunity. Id. As such, the “District is potentially
liable for the alleged acts, and the trial court erred in dismissing the
complaint.” Id. at 1088.
In a concurring opinion, Justice Grimes agreed that the case should proceed,
but his focus was on the structure and language of section 373.443. He noted
that although the legislature may have intended total immunity for districts in
the operation of the systems, the statute could not be read to achieve this
result. He pointed out that section 373.443 provided immunity for partial or
total failures only if “by virtue of” one of the four defined activities in
subsections 373.443(1)-(4), which included the “[c]ontrol or regulation of dams,
impoundments, reservoirs, appurtenant work, or works regulated under this
chapter” and “[m]easures taken to protect against failure during emergency.”
Simply because a partial or total failure of a dam or other structure occurred
did not automatically result in immunity; instead, the partial/total failure had
to be “by virtue of” one of the statutorily listed actions; if so, section
373.443 would “appear to grant total immunity for damages caused by a break in
the enclosure of water or a release of water caused by an equipment failure
regardless of whether there was operational negligence.” Id. at
1088 (emphasis added). He also noted that the statute allowed for “liability for
any damages not caused by a partial or total failure . . . according to the
planning-operational dichotomy” under section 768.28. Id. An example
would be a damkeeper falling asleep causing waters to overflow, which would not
be considered “a total or partial failure” of the dam under the statute’s
language. Id. n.2.
but his focus was on the structure and language of section 373.443. He noted
that although the legislature may have intended total immunity for districts in
the operation of the systems, the statute could not be read to achieve this
result. He pointed out that section 373.443 provided immunity for partial or
total failures only if “by virtue of” one of the four defined activities in
subsections 373.443(1)-(4), which included the “[c]ontrol or regulation of dams,
impoundments, reservoirs, appurtenant work, or works regulated under this
chapter” and “[m]easures taken to protect against failure during emergency.”
Simply because a partial or total failure of a dam or other structure occurred
did not automatically result in immunity; instead, the partial/total failure had
to be “by virtue of” one of the statutorily listed actions; if so, section
373.443 would “appear to grant total immunity for damages caused by a break in
the enclosure of water or a release of water caused by an equipment failure
regardless of whether there was operational negligence.” Id. at
1088 (emphasis added). He also noted that the statute allowed for “liability for
any damages not caused by a partial or total failure . . . according to the
planning-operational dichotomy” under section 768.28. Id. An example
would be a damkeeper falling asleep causing waters to overflow, which would not
be considered “a total or partial failure” of the dam under the statute’s
language. Id. n.2.
Turning to the allegations in Nanz’s complaint, Justice Grimes noted that
most
most
[A]ppear directed to damages caused by planning-level decisions of
the district, such as opening or closing dams or changing the flow of waters.
However, some of the allegations are susceptible to the interpretation that
damages were caused by operational negligence for which the district would not
be immune under section 768.28 and by circumstances other than total or partial
failure for which the district would not be immune under section
373.443.
Id. at 1088-89. In other words, some of the allegations — because
they were not based on a total or partial failure of a dam or other work — are
actionable.
they were not based on a total or partial failure of a dam or other work — are
actionable.
Neither the majority nor concurring opinions in Nanz control the
outcome of this case, but they highlight the interplay between section 768.28’s
scope of immunity and that of section 373.443; the former exists only for
planning level activities, while the latter is broader due to the 1989 inclusion
of stormwater management systems and its more expansive language immunizing
“partial or total” failures whether caused by operational negligence or not.
outcome of this case, but they highlight the interplay between section 768.28’s
scope of immunity and that of section 373.443; the former exists only for
planning level activities, while the latter is broader due to the 1989 inclusion
of stormwater management systems and its more expansive language immunizing
“partial or total” failures whether caused by operational negligence or not.
In this case, no dispute exists that the District’s stormwater management
system partially failed due to the breach of a retaining wall for Pond F, which
was caused, in part, by excessive floodwaters coming from the homeowners’
association property. There is also no dispute that the Barneses’ allegation in
their complaint that the “system design” used by the District was inadequate is
nothing more than a planning level decision by the District that is immunized
under section 768.28 and section 373.443. The remaining focus of the dispute,
therefore, is only whether the Barneses’ claim of operational negligence (which
is otherwise actionable under section 768.28) is barred as one involving the
partial/total failure of the District’s stormwater management system, which is
undisputed, “by virtue of” its “[c]ontrol or regulation” of the system.
system partially failed due to the breach of a retaining wall for Pond F, which
was caused, in part, by excessive floodwaters coming from the homeowners’
association property. There is also no dispute that the Barneses’ allegation in
their complaint that the “system design” used by the District was inadequate is
nothing more than a planning level decision by the District that is immunized
under section 768.28 and section 373.443. The remaining focus of the dispute,
therefore, is only whether the Barneses’ claim of operational negligence (which
is otherwise actionable under section 768.28) is barred as one involving the
partial/total failure of the District’s stormwater management system, which is
undisputed, “by virtue of” its “[c]ontrol or regulation” of the system.
The Barneses are correct that section 373.443 cannot be read “to grant
absolute immunity from all forms of negligence” because it limits immunity to
partial/total failures arising in only four defined situations. As Justice
Grimes noted in his concurrence in Nanz, the overlay of immunity provided
by sections 768.28 and 373.442 does not capture all forms of negligence (his
napping damkeeper being an example); some limited species of negligence survive.
But, as the trial judge noted, a strong argument exists that section 373.443
“was enacted specifically to avoid the operational versus planning distinction”
under section 768.28 “otherwise there would be no reason to enact” the former.
absolute immunity from all forms of negligence” because it limits immunity to
partial/total failures arising in only four defined situations. As Justice
Grimes noted in his concurrence in Nanz, the overlay of immunity provided
by sections 768.28 and 373.442 does not capture all forms of negligence (his
napping damkeeper being an example); some limited species of negligence survive.
But, as the trial judge noted, a strong argument exists that section 373.443
“was enacted specifically to avoid the operational versus planning distinction”
under section 768.28 “otherwise there would be no reason to enact” the former.
We agree that section 373.433 was intended to provide a broader scope of
immunity where a partial/total failure of a stormwater management system occurs
and the failure arises from the control or regulation of the system. A thorny
question — but one we may sidestep on these facts — is whether the phrase
“control or regulation” in section 373.443 is broader in its application than
“operation” or “maintenance.” Does a district’s “control”1 of its stormwater management system include and
thereby subsume all its operational and maintenance activities of the system,
and if so, was it the legislature’s intent to thereby extend immunity to all
such activities (as Justice Grimes’s concurrence discusses)?
immunity where a partial/total failure of a stormwater management system occurs
and the failure arises from the control or regulation of the system. A thorny
question — but one we may sidestep on these facts — is whether the phrase
“control or regulation” in section 373.443 is broader in its application than
“operation” or “maintenance.” Does a district’s “control”1 of its stormwater management system include and
thereby subsume all its operational and maintenance activities of the system,
and if so, was it the legislature’s intent to thereby extend immunity to all
such activities (as Justice Grimes’s concurrence discusses)?
The reason we need not resolve this question is that section 373.433’s broad
scope of immunity easily encompasses the Barneses’ claims that the District
failed to design an adequate system, one that resulted in a partial failure due
to the breach of the retaining wall in Pond F. Much of what the Barneses claim
is couched in terms of a negligent failure to design or a failure to give
adequate consideration to alternative designs that might have warded off the
effects of flooding from the neighboring association’s runoff. Immunity for
these planning level activities exists under section 768.28 as well as the
broader immunity provided by section 373.443. Recognizing the scope of planning
level immunity, the Barneses attempt to bolster the operational negligence claim
in their amended complaint via two depositions, but neither lays out disputed
facts that might be relevant to an operational level activity that caused their
damages. Most of the testimony in the depositions relates to post-incident
remedial efforts (such as repairing the damaged retaining wall), and much of the
remainder attempts to second-guess the District’s original design of its
stormwater management system. These types of allegations fall more closely into
the category of planning level immunity. See, e.g., Kaweblum ex rel. Kaweblum
v. Thornhill Estates Homeowners Ass’n, Inc., 801 So. 2d 1015, 1016 (Fla. 4th
DCA 2001) (alleged failure to improve one bank of canal and not the other is
not-actionable; “cases uniformly hold that a governmental entity’s decision to
upgrade or improve or not to upgrade or improve is a planning level function for
which there can be no tort liability.”); Tucker v. Gadsden County, 670
So. 2d 1053, 1054 (Fla. 1st DCA 1996) (“A governmental entity’s failure to
upgrade or improve an existing road is a judgmental, planning level decision
which is immune from tort liability under the doctrine of sovereign immunity.”).
scope of immunity easily encompasses the Barneses’ claims that the District
failed to design an adequate system, one that resulted in a partial failure due
to the breach of the retaining wall in Pond F. Much of what the Barneses claim
is couched in terms of a negligent failure to design or a failure to give
adequate consideration to alternative designs that might have warded off the
effects of flooding from the neighboring association’s runoff. Immunity for
these planning level activities exists under section 768.28 as well as the
broader immunity provided by section 373.443. Recognizing the scope of planning
level immunity, the Barneses attempt to bolster the operational negligence claim
in their amended complaint via two depositions, but neither lays out disputed
facts that might be relevant to an operational level activity that caused their
damages. Most of the testimony in the depositions relates to post-incident
remedial efforts (such as repairing the damaged retaining wall), and much of the
remainder attempts to second-guess the District’s original design of its
stormwater management system. These types of allegations fall more closely into
the category of planning level immunity. See, e.g., Kaweblum ex rel. Kaweblum
v. Thornhill Estates Homeowners Ass’n, Inc., 801 So. 2d 1015, 1016 (Fla. 4th
DCA 2001) (alleged failure to improve one bank of canal and not the other is
not-actionable; “cases uniformly hold that a governmental entity’s decision to
upgrade or improve or not to upgrade or improve is a planning level function for
which there can be no tort liability.”); Tucker v. Gadsden County, 670
So. 2d 1053, 1054 (Fla. 1st DCA 1996) (“A governmental entity’s failure to
upgrade or improve an existing road is a judgmental, planning level decision
which is immune from tort liability under the doctrine of sovereign immunity.”).
The allegations that come closest to operational level activities regard a
clogged drain, an inadequate weir along the lip of one pond, and other
nonconformities in ponds other than Pond F. As to Pond F, the only deficiency
was alleged to be an “inlet pipe structure” that needed some “back-fill and
rip-rap” to prevent erosion around the structure. These collectively appear to
be the allegations the trial judge viewed as operational level activities that
precluded immunity under section 768.28, a determination we do not address but
which appears quite thin as a basis for denying summary judgment. We conclude
that these allegations, at best, fall short of establishing a viable negligence
claim that is other than a “partial or total failure” of the District’s
stormwater management system arising “by virtue of” its “[c]ontrol or
regulation” of its system.
clogged drain, an inadequate weir along the lip of one pond, and other
nonconformities in ponds other than Pond F. As to Pond F, the only deficiency
was alleged to be an “inlet pipe structure” that needed some “back-fill and
rip-rap” to prevent erosion around the structure. These collectively appear to
be the allegations the trial judge viewed as operational level activities that
precluded immunity under section 768.28, a determination we do not address but
which appears quite thin as a basis for denying summary judgment. We conclude
that these allegations, at best, fall short of establishing a viable negligence
claim that is other than a “partial or total failure” of the District’s
stormwater management system arising “by virtue of” its “[c]ontrol or
regulation” of its system.
Finally, the Barneses alternatively claimed that the District established a
stormwater management system that was designed so deficiently as to create a
known dangerous condition for which is imposed on them a duty to warn or protect
the public. See Gadsden County, 670 So. 2d at 1054 (“[W]hen a
governmental entity creates a known dangerous condition, which is not
readily apparent to persons who could be injured by the condition, a duty at the
operational-level arises to warn the public of, or protect the public from, the
known danger.”) (quoting City of St. Petersburg v. Collom, 419 So.2d
1082, 1083 (Fla. 1982)). On this record, we find no evidence that the District
knew prior to the extraordinary rain event of August 14, 2009, that its
stormwater management system was other than one that was designed to handle all
but the most extreme rainfalls.
stormwater management system that was designed so deficiently as to create a
known dangerous condition for which is imposed on them a duty to warn or protect
the public. See Gadsden County, 670 So. 2d at 1054 (“[W]hen a
governmental entity creates a known dangerous condition, which is not
readily apparent to persons who could be injured by the condition, a duty at the
operational-level arises to warn the public of, or protect the public from, the
known danger.”) (quoting City of St. Petersburg v. Collom, 419 So.2d
1082, 1083 (Fla. 1982)). On this record, we find no evidence that the District
knew prior to the extraordinary rain event of August 14, 2009, that its
stormwater management system was other than one that was designed to handle all
but the most extreme rainfalls.
AFFIRMED. (ROWE, J., CONCURS; SWANSON, J., CONCURS IN RESULT ONLY.)
__________________
1Notably, some states use the word
“supervise” rather than “control” in defining the scope of immunity in similar
dam statutes. See, e.g., Ga. Code Ann. § 12-5-383 (2014) (“No action
shall be brought against the state, the commission, or any employee of the state
or the commission for damages sustained through the partial or total failure of
any dam or other artificial barrier dealt with in this part or its maintenance
by reason of any supervision or other action taken or not taken pursuant to
former Code Section 12-5-375.”); N.C. Gen. Stat. Ann. § 143-215.35 (2014) (“No
action shall be brought against the State of North Carolina, the Department, or
the Commission or any agent of the Commission or any employee of the State or
the Department for damages sustained through the partial or total failure of any
dam or its maintenance by reason of any supervision or other action taken
pursuant to or under this Part.”).
“supervise” rather than “control” in defining the scope of immunity in similar
dam statutes. See, e.g., Ga. Code Ann. § 12-5-383 (2014) (“No action
shall be brought against the state, the commission, or any employee of the state
or the commission for damages sustained through the partial or total failure of
any dam or other artificial barrier dealt with in this part or its maintenance
by reason of any supervision or other action taken or not taken pursuant to
former Code Section 12-5-375.”); N.C. Gen. Stat. Ann. § 143-215.35 (2014) (“No
action shall be brought against the State of North Carolina, the Department, or
the Commission or any agent of the Commission or any employee of the State or
the Department for damages sustained through the partial or total failure of any
dam or its maintenance by reason of any supervision or other action taken
pursuant to or under this Part.”).
__________________
(SWANSON, J., concurring in result only.) The trial Court properly concluded
that, pursuant to Section 373.443, Florida Statutes, the Appellee is immune from
liability for the negligence claim asserted by the Appellant. The plain language
of the statutory provision is dispositive.
that, pursuant to Section 373.443, Florida Statutes, the Appellee is immune from
liability for the negligence claim asserted by the Appellant. The plain language
of the statutory provision is dispositive.
* * *