CopyCited 5 times | Published | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 3647, 1993 WL 95587
...The complaint alleged Southwest Florida Management District (SWFMD) and Hillsborough County were negligent in their operation, control and maintenance of a drainage system, and this negligence proximately caused appellant’s properties to be flooded. The court found SWFMD to be immune from liability pursuant to section 373.443, Florida Statutes (1989), and found that Hillsborough County had no duty to act as alleged. Section 373.443, Florida Statutes, provides: No action shall be brought against the state or district, or any agents or employees of the state or district, for the recovery of damages caused by the partial or total failure of any stormwater managemen...
...subdivisions.” Where two statutes are found to be in conflict, rules of statutory construction must be applied to reconcile the conflict if possible. Debolt v. Dept. of Health & Rehab. Services,
427 So.2d 221 (Fla. 1st DCA 1983). We interpret section
373.443 to provide that the various water management districts shall not be held liable if the permits they grant, the regulations they promulgate, or the control they exercise by reason of their permits, regulations, and orders lead to injuries....
CopyPublished | Supreme Court of Florida | 19 Fla. L. Weekly Supp. 470, 1994 Fla. LEXIS 1475, 1994 WL 525901
SHAW, Justice. We have before us the following question of great public importance: Does section 373.443, Florida Statutes (1989), immunize a water management district from negligence in the execution of its operational level activities or are such activities and subsequent liability governed by the relevant provisions of section 768.-28, Florida Statutes (1989)? Nanz v....
...We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Because the present case is controlled by the 1987, not the 1989, version of Florida Statutes, and is limited to the issue of liability for stormwater management, we rephrase the question as follows: Does section 373.443, Florida Statutes (1987), immunize a water management district from liability for damages arising from the failure of a stormwater management system? We answer in the negative and approve the result in Nanz v....
... breach and the subsequent flooding of Plaintiffs’ property. The complaint alleged that the District did not enjoy sovereign immunity for its negligence in managing the stormwater runoff. The District sought to dismiss the complaint, arguing that section
373.443, Florida Statutes (1989), grants the District absolute immunity for liability arising from the failure of a storm management system. The trial court found the District immune from liability under section
373.443 and dismissed the complaint with prejudice. The district court reversed, ruling that section
373.443, Florida Statutes (1989), confers immunity only for planning-level activities, and that the general waiver of immunity contained in section
768.28 for operational-level activities is applicable to the actions alleged in the complaint. The District sought review and asserts that section
373.443 confers specific immunity on the District for the acts alleged in the complaint....
...Chapter 373 establishes a management system for Florida’s waters and provides immunity from liability for the State in particular areas. The 1987 version of the statute did not provide specific immunity from liability arising from stormwater'management: 373.443 Immunity from liability....
...tenant work, or works upon the ground *1087 that the state or district is liable by virtue of any of the following: [[Image here]] (3) Control or regulation of dams, im-poundments, reservoirs, appurtenant work, or works regulated under this chapter. § 373.443, Fla.Stat. (1987). The legislature amended the statute in 1989 to provide immunity for stormwater management: 373.443 Immunity from liability....
...n the ground that the state or district is liable by virtue of any of the following: [[Image here]] (3) Control or regulation of stormwater management systems, dams, impound-ments, reservoirs, appurtenant work, or works regulated under this chapter. § 373.443, Fla.Stat....
...The damages specified in Nanz’s complaint allegedly arose as a result of a failure in the District’s stormwater management operations following rainfall events occurring between September 7 and 13,1988. Because the alleged failure of the stormwater management system took place before section 373.443 was amended in 1989, the 1987 version of the statute, which does not embrace immunity for stormwater management activities, controls....
CopyPublished | Florida 1st District Court of Appeal | 2014 WL 3906856, 2014 Fla. App. LEXIS 12388
...Charles and Virginia Barnes sued the District Board of Trustees of St. Johns River State College for damages to their property from water alleged to have overflown from a retention pond on the District’s campus. The trial court ruled the District was entitled to immunity under section 373.443, Florida Statutes....
...that ruling on appeal, focusing exclusively on their negligence claim. The District raised various defenses including immunity under (a) article X, section 13, of the Florida Constitution, as implemented via section
768.28, Florida Statutes, and (b) section
373.443, Florida Statutes....
...The District asserted that the alleged negligent conduct related solely to planning and design level functions of the storm water management system and a failure to modernize the ponds, which it claimed were immune from tort liability under
768.28. Regarding section
373.443, the District argued it was entitled to absolute immunity from liability for damages, which were allegedly caused by the failure of its storm water management system....
...signed rather than operated; the only thing the District could have done to address the Barneses’ concern was to have redesigned or reconfigured the ponds, which would be discretionary acts immune from liability. It also argued that immunity under section 373.443 applied because the partial failure of the system (i.e., the breach of a retaining wall on Pond F) is the type of incident the statute was intended to shelter from liability....
...appears to be a disputed issue of material fact on the issue of whether there is operational negligence on the part of the District which caused damage to the plaintiffs,” thereby precluding summary judgment. Turning to the claim of immunity under section 373.443, the trial court held that “[t]here is no dispute that the plaintiffs’ claims herein are founded on the District’s control of a ‘stormwa-ter management system,’ ‘impoundment’ or “work’ regulated by Chapter 373, the p...
...total failure of which is alleged to have caused the plaintiffs’ damages.” As such, it held that the “District is immune from liability for the negligence claim asserted by the plaintiffs.” In doing so, the trial court tacitly concluded that section
373.443 extended immunity to the Barneses’ operational level negligence claims, ones that would otherwise be actionable under section
768.28’s waiver of immunity....
...ondemnation claim (in part because the Barneses had not lost all use of their property). As mentioned previously, the Barneses challenge only the entry of judgment on their negligence claim. II. Whether immunity exists in this case hinges on whether section
373.443 provides a broader scope of immunity than that provided by section
768.28 as applied to the District’s stormwater management system....
...y for the allegations of operational negligence the Barneses have asserted, a ruling the District does not contest. The specific task is thereby to determine whether the Barnes-es’ operational negligence claims survive the protective umbrella that section 373.443 provides for the stormwater management system at issue. We turn then to the text of section 373.443, Florida Statutes, which was enacted in 1972 to provide immunity for the partial or total failure of dams and other listed public works, but which was amended in 1989 to include “stormwater management systems” within its scope....
...(2) The issuance or enforcement of any order relative to maintenance or operation. (3) Control or regulation of stormwater management systems, dams, impound-ments, reservoirs, appurtenant'work, or works regulated under this chapter. (4) Measures taken to protect against failure during emergency. § 373.443, Fla....
...Nanz,
642 So.2d 1084 (Fla.1994) discussed the 1987 version of the statute, whose language is identical to today’s version other than its exclusion of “stormwater management systems.” The legal question the supreme court addressed was: “Does section
373.443, Florida Statutes (1987), immunize a water management district from liability for damages arising from the failure of a stormwater management system?” Id....
...As such, the “District is potentially liable for the alleged acts, and the trial court erred in dismissing the complaint.” Id. at 1088 . In a concurring opinion, Justice Grimes agreed that the case should proceed, but his focus was on the structure and language of section 373.443....
...the operation of the systems, the statute could not be read to achieve this result. He pointed *107 out that section 373.44B provided immunity for partial or total failures only if “by virtue of’ one of the four defined activities in subsections 373.443(l)-(4), which included the “[c]ontrol or regulation of dams, impoundments, reservoirs, appurtenant work, or works regulated under this chapter” and “[m]easures taken to protect against failure during emergency.” Simply because a partial or total failure of a dam or other structure occurred did not automatically result in immunity; instead, the partial/total failure had to be “by virtue of’ one of the statutorily listed actions; if so, section 373.443 would “appear to grant total immunity for damages caused by a break in the enclosure of water or a release of water caused by an equipment failure regardless of whether there was operational negligence.” Id....
...However, some of the allegations are susceptible to the interpretation that damages were caused by operational negligence for which the district would not be immune under section
768.28 and by circumstances other than total or partial failure for which the district would not be immune under section
373.443....
...In other words, some of the allegations — because they were not based on a total or partial failure of a dam or other work — are actionable. Neither the majority nor concurring opinions in Nanz control the outcome of this case, but they highlight the interplay between section
768.28’s scope of immunity and that of section
373.443; the former exists only for planning level activities, while the latter is broader due to the 1989 inclusion of stormwater management systems and its more expansive language immunizing “partial or total” failures whether caused by operational negligence or not....
...y. There is also no dispute that the Barneses’ allegation in their complaint that the “system design” used by the District was inadequate is nothing more than a planning level decision by the District that is immunized under section
768.28 and section
373.443....
...able under section
768.28) is barred as one involving the partial/total failure of the District’s storm-water management system, which is undisputed, “by virtue of’ its “[c]ontrol or regulation” of the system. The Barneses are correct that section
373.443 cannot be read “to grant absolute immunity from all forms of negligence” because it limits immunity to partial/total failures arising in only four defined situations....
...As Justice Grimes noted in his concurrence in Nanz , the overlay of immunity provided by sections
768.28 and 373.442 does not capture all forms of negligence (his napping damkeeper being an example); some limited species of negligence survive. But, as the trial judge noted, a *108 strong argument exists that section
373.443 “was enacted specifically to avoid the operational versus planning distinction” under section
768.28 “otherwise there would be no reason to enact” the former....
...partial/total failure of a stormwater management system occurs and the failure arises from the control or regulation of the system. A thorny question — but one we may sidestep on these facts — is whether the phrase “control or regulation” in section 373.443 is broader in its application than “operation” or “maintenance.” Does a district’s “control” 1 of its stormwater management system include and thereby subsume all its operational and maintenance activities of the system,...
...consideration to alternative designs that might have warded off the effects of flooding from the neighboring association’s runoff. Immunity for these planning level activities exists under section
768.28 as well as the broader immunity provided by section
373.443....
