Mann v. State Department of Transportation

946 So. 2d 1246, 2007 Fla. App. LEXIS 815, 2007 WL 173856

Opinion

ALLEN, J.

The appellants challenge a summary judgment entered in their negligence action for damages sustained in a vehicular collision, with the trial court ruling that the claim is precluded by the appellee’s sovereign immunity. The appellants sought recovery on the theory that the appellee created a hazardous condition which led to the collision. The appellants further indicated that this involved a hidden danger with an illusion of safety, and that the appellee was aware of the hazard but failed to correct it or to warn of the danger. As explained in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), these assertions encompass an operational-level function to which sovereign immunity does not apply. See also, e.g., City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla.1982); Polk County v. Sofka, 803 So.2d 751 (Fla. 2d DCA 2001), revietu denied 821 So.2d 300 (Fla.2002). The appellants submitted depositions and affidavits with factual recitations supporting these assertions, and the appellee’s submission of countering affidavits raised a factual dispute which may not be resolved by summary judgment. See, e.g., Moore v. Morris, 475 So.2d 666 (Fla.1985); Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006).

The appealed order is reversed, and the case is remanded.

WOLF, J., and ERVIN, III, RICHARD W., Senior Judge, concur.