Opinion
No. 77-1325.
April 10, 1979. On Rehearing October 18, 1979.
Appeal from the Circuit Court, Dade County, Sidney M. Weaver, J.
Adams Ward and Amy Shield Levine, Miami, for appellants.
Stuart L. Simon, County Atty. and Mark A. Dresnick, Asst. County Atty., for appellee.
Before HUBBART and KEHOE, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
Appellants, Universal Dry Wall, Inc. and Travelers Insurance Company, as cross-complainants below, filed a claim against Metropolitan Dade County setting forth in part as follows:
"4. At all times material Dade County owned, managed, designed and controlled the Right-of-way and streets in Dade County known as S.W. 136th Street and 97th Avenue, and at the intersection of said streets negligently erected stop signs to control motor vehicular traffic in said vicinity and using said streets and intersection.
"5. That said intersection was dangerous and defective in its design, control and maintenance by Dade County, Florida, and Dade County knew or in the exercise of reasonable care should have known of said dangers and defects."
In response to appellee's motion to dismiss, the lower court dismissed the complaint with prejudice:
". . . because it is not actionable negligence that a governmental authority has failed to maintain a traffic control device at a given time and place. Commercial Carrier Corporation v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977)."
The lower court is correct and we affirm its ruling as to the alleged negligence in erecting traffic control devices as set forth in Paragraph 4 of the complaint. Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975); and City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969).
However, the lower court committed error in dismissing the complaint regarding defects in design in maintenance of its roads as set forth in Paragraph 5 of the complaint. We reverse as to that portion of the order of dismissal. Gordon v. City of West Palm Beach, supra; Trumpe v. City of Coral Springs, 326 So.2d 192 (Fla. 4th DCA 1976). We remand the cause for further proceedings to reinstate the complaint as to defective design and maintenance of roads on the part of Dade County.
Affirmed in part, reversed in part and remanded.
ON PETITION FOR REHEARING
Upon the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), the petitions for rehearing filed by both sides are granted. The dismissal with prejudice of the cross-complaint as to (1) the county's alleged negligent erection of the stop sign, and (2) the county's alleged negligent design, control and maintenance of the road intersection, is hereby reversed. This cause is remanded to the trial court with directions to dismiss those counts of the cross-complaint with leave to amend.
I concur in the affirmance of the trial court's dismissal of paragraph 4 of the cross-complaint only because this result is clearly controlled by the rule of law expressed by the majority in Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977), and Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977). I am of the opinion, however, that Section 768.28, Florida Statutes (1977) should be construed to waive the county's sovereign immunity in this instance. A final determination of this matter may soon be forthcoming since both Cheney and Commercial Carrier are presently pending in the Supreme Court.
I must respectfully dissent. I would reverse the order dismissing the appellants' cross-complaint for indemnity or contribution against Dade County only insofar as the dismissal was with prejudice and remand with directions to allow the appellants leave to amend their cross-complaint as to (1) the county's alleged negligent erection of the stop sign herein, and (2) the county's alleged negligent design, control and maintenance of the road intersection herein, based on our recent decision in Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla.3d DCA 1979), as well as the reasoning and authorities cited at Cheney v. Dade County, 353 So.2d 623, 626-630 (Fla.3d DCA 1977) (Hubbart, J. dissenting), cert. pending. In my view, the cross-complaint as presently framed is technically insufficient to state a claim for contribution or indemnity but is capable of so stating such a claim upon proper amendment. The dismissal of the cross-complaint was therefore proper, but the dismissal should have been without prejudice.