Opinion
No. 77-1691.
August 21, 1979.
Appeal from the Circuit Court, Dade County, Sidney M. Weaver, J.
Preddy, Kutner Hardy and John A. Thompson, Jr., Miami, for appellants.
Davis Judkins, Tallahassee, Knight, Peters, Pickle, Niemoeller Flynn and Stephen A. Stieglitz, Miami, for appellees.
Appellants, plaintiffs below, bring this appeal from an order entered by the trial court granting appellees', defendants below, motions for summary judgment in an action for active negligence involving appellees' alleged failure to warn appellants of a known hazardous condition on the west-bound lanes of the Coral Way overpass of the Florida Turnpike extension and their failure to repair, replace, and maintain any warning apparatus at this location after knowing of the probability of injury. The record reflects that appellees' motions for summary judgment were granted by the trial court on the grounds of sovereign immunity and no special duty owed to appellants. At the time these motions were granted, the trial court did not have the benefit of the Supreme Court of Florida's decision in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979); or our decision in Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla. 3d DCA 1979). Pursuant to the reasoning propounded in these recent cases, in our opinion, the trial court erred in granting appellees' motions for summary judgment on the grounds set forth above. Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion and the authorities cited herein. Upon remand, the trial court may properly entertain any appropriate motions by the parties for summary judgment or other relief on other grounds, e.g., no duty to maintain the roadway, etc.
Reversed and remanded.