Title: Types of Legal Action That Might Be Brought Against The County By GAC
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Permanent Link: http://ufdc.ufl.edu/WL00003027/00001
 Material Information
Title: Types of Legal Action That Might Be Brought Against The County By GAC
Physical Description: Book
Language: English
Publisher: Frank E. Maloney, Attorney At Law
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Types of Legal Action That Might Be Brought Against The County By GAC
General Note: Box 12, Folder 5 ( Legal Ramifications of Implementation of the Interim Action Program in Golden Gate Estates, Collier County, Florida - 1979 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003027
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


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.

Sat 396.

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.

Unconstitutional Taking

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).



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