Wojtan v. Hernando County

379 So. 2d 198

Opinion

379 So.2d 198 (1980)

Joseph F. WOJTAN, Appellant,
v.
HERNANDO COUNTY, etc., Appellee.

No. 79-150/T2-9.

District Court of Appeal of Florida, Fifth District.

January 30, 1980.

H. Shelton Philips, of Kaleel & Kaleel, P.A., St. Petersburg, for appellant.

Samuel R. Neel, III, of McClain & Walkley, Tampa, for appellee.

ORFINGER, Judge.

This is an action for damages wherein Appellant alleged that on June 2, 1976, the Appellee county carelessly and negligently maintained a certain county road and its shoulders which it had a duty to maintain in good, safe, condition; that because of Appellee's negligence the Appellant, while operating a motor vehicle along said roadway, was injured.

The trial court granted a motion for judgment on the pleadings on the ground that Appellant had neither alleged nor demonstrated a duty owed to him that was different from the duty owed to the citizens of the county in general. Final judgment on the pleadings was entered, and from this judgment Appellant appeals.

Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), was not available to the trial judge at the time he ruled in this case and that decision makes it clear that the maintenance of a roadway and its shoulders is "operational level activity" for which sovereign immunity for tort liability has been waived under § 768.28, F.S.

The final judgment is reversed and the cause is remanded to the trial court for further proceedings in accordance herewith.

REVERSED and REMANDED.

DAUKSCH, C.J., and UPCHURCH, J., concur.