VI. THE TYPES OF LEGAL ACTION THAT MIGHT BE BROUGHT AGAINST THE COUNTY
BY GAC, AND THE STANDING OF GAC TO BRING SUCH ACTIONS.
Immunity of The County
Counties of Florida, as political subdivisions of the State, consti-
tute a part of the machinery of state government. For this reason, they
enjoy sovereign immunity from tort liability in the absence of a general
statute which specifically permits such a suit against the State.
Kaulakis v. Boyd, 138 So. 2d 505 (Fla. 1962). This immunity, however,
does not extend to actions based on a contract theory. Gay v. Southern
Builders, Inc., 66 So. 2d 499 (Fla. 1953). Nor does the immunity extend
to "proprietary," as opposed to "governmental," functions of government.
Butts v. Dade County, 178 So. 2d 592 (Fla. 3d D.C.A. 1965).
As of January 1, 1975, a county may be sued in tort under Florida
Statutes S768.28(l) for damages,
caused by the negligent or wrongful act or omission of
any employee of the agency or subdivision while acting
within the scope of his office or employment under cir-
cumstances in which the state or such agency or sub-
division, if a private person, would be liable to the
claimant in accordance with the general laws of this
Liability under the statute, however, is limited by subsection (5) which
provides that a claim or judgment by any one person cannot create liability
in excess of $50,000 and aggregated claims arising out of the same incident
r occurrence cannot create liability in excess of $100,000. Therefore,
en if Collier County were held liable in tort for implementation of the
Interim Action Program, its liability would appear not to exceed $100,000.
only exception would be the unlikely situation where the amount of a
aim exceeding the maximums allowed by Chapter 768 was submitted as a
Iaims bill to the Florida Legislature and the Legislature responded
by directing the county to pay the difference. Even under these circum-
siances, however, the County's monetary liability is limited to the
,ital amount of its insurance coverage for tort liability, if it carries
|ch insurance. Circuit Court v. Dept. of Natural Resources, 339 So.
I 113. 1116 (Fla. 1976); See aisbo'I. Atty. Gen. Fla., 078-127 (1978).
It is well settled law, however, that an individual cannot be held
liable in tort for exercising the "legislative, judicial, quasi-legislative
-r quasi-judicial functions" of government. Hargrove v. Town of Cocoa
Rac, 96 So. 2d'1:0, t33 (Fla. 1957); Atten v. Secor, 195 So. 2d 586
Ip~f-^-- 2 ." s ; -- --!H -- -M .^--- --
,Fla. 2d D.C.A. 1967);: Houh v. Amat, 260 So. 2d 537 (Fla. 1st D.C.A.
972). See also, Prosser, Law of Torts 132 (4th. ed. 1971). A decision
6e exercise the police power is such a fundtton. Allen v:.Secor, supra;
4Ihfh v. Amato, supra. Since an individual could not be held liable for
uch a decision, then neither could the government. P. Kovolick, Survey
1fTort Law, 30 U. Miami L. Rev. 357, 395 (1976). Note, however, the
Iparently contradictory dicta in Hapton v. State Board of Education,
Fla. 88, 105 So. 323, 327-28 (1925).
t The case of ElliotUv. Hernan o County, 281 So. 2d 395 (Fla. 2d D.C.A.
73), does not contradict this conclusion. In Elliott, the defendant had
structed a road and failed to place under it sufficient culverts to
low the natural flow of rainwaters, As a result of the obstruction,
plaintiff suffered severe damages from flooding. In addition to stat-
a cause of action for a taking, the court hheld e complaint stated I
|cause of action for damages as allowed by a waiver of sovereign immunity.
fI the action with caued- the actionabte harm in Elifott, however, was
"An exercise of legislative" or qupt-legisfative powers. There was no
discretionary decision made, pursuant to the police power, to flood the
land. Instead, the county simply failed to build its road properly.
The case therefore would not apply to a decision by the Collier County
Board of County Commissioners regarding whether the Interim Action
SProgram should be implemented. Immunity from liability in tort appears
to remain in existence for such a decision.
The Federal Tort Claims Act includes an explicit exemption for,
Any claim based upon an act or omission of an
employee of the Government, exercising due care,
in the execution of a statute or regulation,
whether or not such statute or regulation be
valid, or based upon the exercise or performance
or the failure to exercise or perform a discretion-
ary function or duty on the part of a federal
agency or an employee of the Government, whether or
not the discretion involved be abused. 28 U.S.C.A.
The federal exemption appears analogous to the Florida common law
immunity. Therefore, cases which have interpreted its applicability may
be used persuasively in Florida.
In Coates v. United States, 181 F.2d 816 (8th Cir. 1950), the plain-
tiff brought an action for damages resulting from changing the course of
the Missouri River. The court affirmed the dismissal of the complaint.
It would be difficult if not impossible to point to any
example of exercising and performing discretionary func-
tions and duties on the part of federal agencies more
clearly within the exception of the Federal Tort Claims
Act than the changing of the Missouri River under legis-
lative and executive sanction pursuant to political and
discretionary decisions of the highest governmental order
on which the plaintiffs have chosen to base their claim
of negligence in this case. We have found no merit in
their contention that their claims stated in their com-
plaint may be found to fall within the jurisdiction con-
ferred by the Act.
Similarly, in Konecny v. United States, 388 F.2d 59 (8th Cir. 1967), a
claim under the FTCA for damages caused by raising and lowering the water
behind a dam was also dismissed. See also, Spillway Marina, Inc. v. U.S.,
445 F.2d 876 (10th Cir. 1971).
Clearly, the negligent operation of drainage works may result in
liability under the federal law. For example, liability has been predi-
cated on the failure to clean out culverts resulting in the flooding of
private property. Seaboard Coastline R.R. v. U.S., 473 F.2d 714 (5th Cir.
1973). Immunity from tort claims for making a policy decision to cause
flooding, however, does not appear to have been waived under federal law.
See generally, Annotation, Liability of United States Under Federal Tort
Claims Act for Damage From Flooding, 4 ALR Fed. 723. Federal law, there-
fore, supports the conclusion previously stated that a policy decision by
the County to raise water levels in Golden Gate Estates would probably
not create common law liability for damages because of the protection
afforded by sovereign immunity.
Trespass and Nuisance
If a court should find that sovereign immunity does not protect the
County from a common law action for damages from flooding, such a suit
would likely be based on theories of trespass and nuisance. Trespass is
a tort designed to protect one's interest in the exclusive possession of
land in its intact physical condition. Prosser, Law of Torts 68 (4th ed.
1971). A trespass may occur by an intentional action which results in
the flooding of property. In Davis v. Ivey, 112 So. 264 (Fla. 1927), the
construction of defendant's railroad prevented rainwater from flowing in
its natural course and diverted it upon plaintiff's farm forming a lake
and destroying his potato crop. It was held that relief could be obtained
in an action for damages. Injunctive relief is also available where
there is a showing that a monetary reward will not give full relief.
Anderson v. Town of Groveland, 113 So. 2d 569 (Fla. 2d D.C.A. 1959).
In a legal context, the term "nuisance" refers to a type of damage
and must necessarily be either a private nuisance or public nuisance.
Prosser, supra, at 572. The two types of nuisance have little in common,
so it is important analytically to avoid confusing them. A private
nuisance is an unreasonable interference with the use and enjoyment of
real property whereas a public nuisance is an injury to the public in
the exercise of its common rights. Maloney, Judicial Protection of the
Environment: A New Role for Common-Law Remedies, 25 Vand. L. Rev. 145,
146 (1972). In order to have standing to maintain a public nuisance
action a private individual must show a special damage to him differing
in kind from that suffered by the public. Id. at 147.
Since nuisance refers only to the type of damage, liability for
nuisance must rely on some tortious conduct such as an intentional or
negligent act of the defendant. Prosser, supra, at 574. Often where
an intentional act of the defendant is a trespass because there has been
direct physical invasion of the plaintiff's land, the act may also result
in a private nuisance because there was substantial damage sustained by
the plaintiff with respect to his use and enjoyment of the property. Id.
at 545. On the other hand, a trespass may occur without damages. Id. at
Theoretically, trespass should be the preferred cause of action by
a plaintiff whose land has been flooded as a result of acts of the
defendant. The reason is that neither proof of intent nor proof of
negligence is required in a trespass action, whereas in a private
nuisance action the plaintiff must prove damages and the unreasonableness
of the defendant's acts. Maloney, supra, at 146. Historically, however,
trespass required a direct physical invasion of the plaintiff's land
such as the casting of water upon it. Where the defendant's acts merely
had the effect of ultimately flooding the land, the proper action was in
nuisance, rather than trespass. Id. at 147-148.
Standing to challenge governmental actions which cause damage to
property primarily depends on having an interest in that property. In
an action for trespass, the plaintiff must show that "at the time of the
alleged trespass he was either the owner of the land trespassed upon, or
else in the actual possession thereof." Yellow River Railroad Co. v.
Harris, 17 So. 568, 570 (Fla. 1895). (Emphasis supplied). Standing to
raise a private nuisance action also requires that the plaintiff have a
property right in the land. Prosser, supra, at 593. Therefore, GAC,
like any other landowner, would have standing to raise these common law
claims only with respect to property that it owns, unless the requirements
for a class action suit are met and such a suit is filed.
Since the County has the power of eminent domain it can appropriate
private property for a public purpose, but it must compensate the owner.
1968 Fla. Const. Article X 6(a). If action taken by the County results
in flooding of private property, the owner can argue that the flooding
has resulted in such damage to his property as to constitute a "taking"
of the property. Sovereign immunity does not protect against liability
for the taking of private property for a public purpose without just
compensation because it is constitutionally prohibited. State Road
Department v. Tharp, 146 Fla. 745, 1 So. 2d 868 (1941). The "taking"
issue relative to flooding of land is discussed in depth elsewhere in
this report. "Inverse condemnation" has become the popular description
of the cause of action against a governmental defendant to recover the
value of property taken by the defendant even though no formal exercise
of eminent domain has been initiated. City of Jacksonville v. Schumann,
167 So. 2d 95 (Fla. 1st D.C.A. 1964). In the usual inverse condemnation
suit the complaint is framed in the alternative. That is, the plaintiff
landowner seeks: (1) to require the defendant to restore the property to
its pre-flooded condition, or (2) to require the defendant to prosecute
condemnation proceedings to determine the value of the property appro-
priated and to pay the amount found to be due. See, e.g., State Road
Department v. Bender, 2 So. 2d 298 (Fla. 1941).
Standing to raise the question of whether governmental actions or
regulations deprived oneof property without due process of law is
closely related to standing to raise a nuisance action. The right to sue
accrues to the holder of the property interest allegedly taken. City of
Sebring v. Wolf, 141 So. 736 (Fla. 1932). The unconstitutional taking
of property is a wrong against the owner at the time of the taking. Id.
Therefore, just as in trespass and nuisance actions, GAC's standing is
probably limited to property owned by it unless a class action can be
SImpairment of Contract
GAC is required under its contracts with the purchasers of lots in
Golden Gate Estates to provide each lot owner with sewage facilities in
the form of either centrally operated facilities or operable septic tanks.
The consent order issued by the Federal Trade Commission and made a part
of the final order of the U.S. District Court for the Southern District
of Florida in Weis v. GAC Corp., No. 73-155 (filed Sept. 30, 1974),
imposes this contractual requirement on GAC* GAC orother landowners
could argue that any government regulation which causes the raising of
the ground water to a level which might make it impossible to obtain
permits to install septic tanks would be unconstitutional as an impair-
ment of contracts by the State. U.S. Const. Art. 1 10.
It seems, however, the impairment of contract argument has little
merit in Florida in this situation. The Florida Supreme Court has looked
not to whether the contract is affected by legislation but whether the
legislation is addressed to a legitimate end and the measures taken are
reasonable and appropriate to that end. See, Mahood v. Bessemer Properties,
Inc., 18 So. 2d 775 (Fla. 1944). See also, Miami Bridge Co. v. Railroad
Commission, 20 So. 2d 356 (Fla. 1944). In other words, all contracts are
construed as subject to the sovereign's power to safeguard the vital
interests of the people. Hillsborough County v. Bregenzer, 10 So. 2d
498 (Fla. 1942).
In order to have standing to invoke the constitutional prohibition
against impairment of the obligation of contract it must be shown that a
lawful contract is in existence which is the subject of the alleged
impairment. Mahood v. Bessemer Properties, Inc., supra. The contract
rights protected can be property rights of the parties to the contract
or third party beneficiaries. Id. Although action by the County would
probably affect the contractual relations of GAC and numerous purchasers
of property, it is unlikely to be found invalid as an impairment of
contract if it is an otherwise valid exercise of the police power.
*On February 13, 1979, the FTC issued a show cause order which outlined
proposed modifications of the 1974 consent order. One of the proposed
modifications removes the earlier requirement to provide sewage facilities
to each Golden Gate Estates lotowners, except in certain specified loca-
tions. FTC Show Cause Order, Docket No. C-2523 (Feb. 13, 1979).