Polk County v. Sofka

675 So. 2d 615, 1996 Fla. App. LEXIS 3901, 1996 WL 185367
CourtDistrict Court of Appeal of Florida
DecidedApril 19, 1996
Docket95-01886
StatusPublished
Cited by3 cases

This text of 675 So. 2d 615 (Polk County v. Sofka) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polk County v. Sofka, 675 So. 2d 615, 1996 Fla. App. LEXIS 3901, 1996 WL 185367 (Fla. Ct. App. 1996).

Opinion

675 So.2d 615 (1996)

POLK COUNTY, Appellant,
v.
Donna M. SOFKA, Appellee.

No. 95-01886.

District Court of Appeal of Florida, Second District.

April 19, 1996.
Rehearing Denied June 14, 1996.

*616 Hank B. Campbell of Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobsen, P.A., Lakeland, for Appellant.

John W. Frost, II, Neal L. O'Toole, and Mark A. Sessums of Frost, O'Toole & Saunders, P.A., Bartow, for Appellee.

BLUE, Judge.

Polk County appeals the final judgment entered in Donna Sofka's favor following a jury verdict. The County contends that it is entitled to sovereign immunity for the negligence that allegedly caused Sofka's extensive and serious injuries. We conclude that the County's liability resulted from an operational-level decision, the creation of a dangerous condition for which the County failed to warn, which is not entitled to sovereign immunity. Accordingly, we affirm but certify a question of great public importance.

Sofka suffered substantial injuries resulting from a two-car collision at an unmarked intersection in Polk County. The four-way intersection was created when a subdivision road was built directly opposite a private road. Sofka entered the intersection from the private road without first stopping or slowing down. While crossing the intersection, Sofka's car was struck by a car traveling on the intersecting road. Sofka concedes that the car on the intersecting road had the right-of-way.

Sofka sought damages against Polk County on the theory that the County created a dangerous intersection when it accepted the subdivision road but failed to warn of the dangerous condition. Sofka supported her theory with evidence that the opening of the new road, combined with area vegetation and the topography, made the primary road difficult to see. Sofka contended that the County's failure to install a stop sign, a yield sign, or any other warning on the road on which she was traveling was the proximate cause of the accident.

Polk County contends that whether traffic control devices should be installed is a judgmental or planning-level decision that is immune from liability. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) (governmental agencies have sovereign immunity for planning-level decisions). In particular, Polk County relies on Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), and Department of Transportation v. Konney, 587 So.2d 1292 (Fla.1991). We agree that these cases are dispositive but disagree with the County's application of these cases to the facts before us.

Neilson is the leading case on governmental liability and sovereign immunity for alleged negligence arising from intersection collisions. Neilson appears to stand for two rules that in our factual situation are difficult to distinguish. "[T]he failure to install traffic control devices and the failure to upgrade an existing road or intersection, as well as the decision to build a road or roads with a particular alignment, are judgmental, planning-level functions to which absolute immunity attaches." Neilson, 419 So.2d at 1073.

*617 A governmental entity may be liable, however, for an inherent defect that creates a known dangerous condition if it fails to warn of the known danger. This is a negligent omission at the operational level. 419 So.2d at 1078.

The following example from Neilson is particularly pertinent to the facts of this case:

Illustrations of inherent defects include... the construction of a curved road where a straight road would be more appropriate. Such decisions as the location and alignment of roads ... and the placing of traffic control devices are not actionable because the defects are inherent in the overall project itself. The fact that a road is built with a sharp curve is not in itself a design defect which created governmental liability. If, however, the governmental entity knows when it creates a curve that vehicles cannot safely negotiate the curve at speeds of more than twenty-five miles per hour, such entity must take steps to warn the public of the danger.

419 So.2d at 1078. The fact situation presented here falls within the second situation. Sofka presented evidence that Polk County created a known dangerous condition (the four-way intersection) and failed to provide any warning.[1] Under Neilson, this is a negligent omission at the operational level and, therefore, not immune.

Neilson contains a significant factual detail, which is also present in Konney. In Neilson, the plaintiff alleged a failure to provide sufficient warning based on the failure to upgrade or to install adequate traffic control devices. In Konney, the plaintiff alleged that the Department was negligent because it failed to install a flashing beacon, it failed to install rumble strips, and the location and type of signs present were improper. In reversing a jury verdict against the Department for a death resulting from a collision at this rural intersection, the Florida Supreme Court stated:

The issue in the instant case is whether the installation of a flashing beacon at the intersection ... was a planning-level decision required to upgrade the intersection because of increased traffic or a necessary device due to a known dangerous condition at the time this intersection was created, i.e., an operational-level decision. In the first instance, sovereign immunity would prohibit recovery under the principles of Neilson and its progeny, while in the second instance recovery would be allowed under Collom.[2]

587 So.2d at 1294-95 (footnote added). The court found that there were adequate signs at the intersection.

In the case before us, the complaint alleged and the evidence proved a complete failure to warn. The importance of this factual distinction is confirmed by Department of Transportation v. Webb, 438 So.2d 780 (Fla.1983). There, the Florida Supreme Court approved a First District decision that affirmed a jury verdict against the Department for its failure to install warning signs at a railroad crossing. The supreme court affirmed the portion of the district court's opinion stating that the failure to place warning signs at the crossing, which was known to be dangerous, was an operational-level function.

Both Neilson and Konney have a factual similarity to this case because each involved an allegedly dangerous intersection. However, it is a critical distinction that Neilson and Konney involve claims of inadequate traffic control devices, whereas the case before us alleges the complete absence of warning. The language in both cases supporting Polk County's position does not require a reversal. We conclude that the failure to erect any warnings at the subject intersection constituted a failure to warn of a dangerous condition, an operational-level decision for which sovereign immunity is inapplicable.

*618 Just as the dangerous curve example in Neilson required a warning, the jury here was entitled to find from the evidence that Polk County had a duty to warn of the dangerous intersection and failed to do so. As in Neilson, there is no liability for the design of a dangerous curve or intersection, but the failure to warn of the dangerous trap may result, as it did here, in the loss of the sovereign immunity which attached to the planning or design.

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Related

Polk County v. Sofka
730 So. 2d 389 (District Court of Appeal of Florida, 1999)
Polk County v. Sofka
702 So. 2d 1243 (Supreme Court of Florida, 1997)

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Bluebook (online)
675 So. 2d 615, 1996 Fla. App. LEXIS 3901, 1996 WL 185367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-county-v-sofka-fladistctapp-1996.