Ribler v. Florida Power & Light Co.

District Court of Appeal of Florida

Ribler v. Florida Power & Light Co.

254 So. 2d 238, 1971 Fla. App. LEXIS 5719

District Court of Appeal of Florida·Decided November 4, 1971·No. No. 71-287·Published·Cited by 2 cases

Opinion

OWEN, Judge.

Appellant’s husband was killed in November, 1968, when an airplane piloted by him crashed at an airport operated by Bro-ward County. In November, 1970, appellant filed a wrongful death action against Broward County (and another) alleging that decedent’s death was due to negligent maintenance of the airport. The complaint did not allege compliance with F.S. Section 95.08, F.S.A.,¹ as a result of which the court dismissed the complaint as against Broward County. Upon appellant declining to amend, the presently appealed final judgment was entered in favor of Broward County.

Appellant suggests that the question on appeal is whether F.S. Section 95.08, F.S. A. is applicable to a tort claim. However, she candidly acknowledges that the courts have heretofore applied the statute to tort claims and forthrightly ask that we depart from such holdings, suggesting that they are incorrect.

It appears to be settled law in this jurisdiction that not only does F.S. Section 95.08, F.S.A. apply to tort claims against a county, Waite v. Dade County, Fla.1954, 74 So.2d 681; Kahl v. Board of County Com[239] missioners of Dade County, Fla.App.1964, 162 So.2d 522 (even when the claim arises as a result of propriety or nongovernmental functions performed by the county, Kahl v. Board of County Commissioners of Dade County, supra), but also that the complaint must allege compliance with the statute as a pre-requisite to stating a valid cause of action against the county, Whitehurst v. Hernando County, 1926, 91 Fla. 509, 107 So. 627.

The complaint in this case failed to allege compliance with the statute and on appeal appellant concedes as a fact that within one year of the time that the cause of action accrued no notice was given to the county of an intent to bring suit on the wrongful death action. On the authority of the cases above cited, the court correctly determined that appellant’s action against Broward County was barred and that the county was entitled to a judgment in its favor.

Affirmed.

REED, C. J., and CROSS, J., concur.

Footnotes

Free access — add to your briefcase to read the full text and ask questions with AI

OWEN, Judge.

Appellant’s husband was killed in November, 1968, when an airplane piloted by him crashed at an airport operated by Bro-ward County. In November, 1970, appellant filed a wrongful death action against Broward County (and another) alleging that decedent’s death was due to negligent maintenance of the airport. The complaint did not allege compliance with F.S. Section 95.08, F.S.A.,¹ as a result of which the court dismissed the complaint as against Broward County. Upon appellant declining to amend, the presently appealed final judgment was entered in favor of Broward County.

Appellant suggests that the question on appeal is whether F.S. Section 95.08, F.S. A. is applicable to a tort claim. However, she candidly acknowledges that the courts have heretofore applied the statute to tort claims and forthrightly ask that we depart from such holdings, suggesting that they are incorrect.

It appears to be settled law in this jurisdiction that not only does F.S. Section 95.08, F.S.A. apply to tort claims against a county, Waite v. Dade County, Fla.1954, 74 So.2d 681; Kahl v. Board of County Com[239] missioners of Dade County, Fla.App.1964, 162 So.2d 522 (even when the claim arises as a result of propriety or nongovernmental functions performed by the county, Kahl v. Board of County Commissioners of Dade County, supra), but also that the complaint must allege compliance with the statute as a pre-requisite to stating a valid cause of action against the county, Whitehurst v. Hernando County, 1926, 91 Fla. 509, 107 So. 627.

The complaint in this case failed to allege compliance with the statute and on appeal appellant concedes as a fact that within one year of the time that the cause of action accrued no notice was given to the county of an intent to bring suit on the wrongful death action. On the authority of the cases above cited, the court correctly determined that appellant’s action against Broward County was barred and that the county was entitled to a judgment in its favor.

Affirmed.

REED, C. J., and CROSS, J., concur.

Footnotes

Ribler v. Florida Power & Light Co., 254 So. 2d 238, 1971 Fla. App. LEXIS 5719 (Fla. Ct. App. 1971).

Pincite

254 So. 2d 238 (Ribler v. Florida Power & Light Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Footnotes

Related