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12-10-18 Commission Meeting Handoutj` building %efter con—ili-IliilillE'S ' :>�iV1i1C S�C-'CIc1� j)��]Cor, _ J:1 MEMORANDUM To: Paul Owens, President From: Thomas Hawkins, Policy and Planning Director Date: Thursday, December 6, 2018 Re: Sovereign immunity for street trees This memorandum addresses whether a Florida local government has sovereign immunity from tort liability for incidents related to trees that local government has planted in its rights-of-way. Generally, local governments in Florida have sovereign immunity from tort liability for all planning activities they undertake but not for operational activities they undertake. Beginning with its decision in Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1020-22 (Fla. 1979), [the Florida S]upreme [C]ourt has drawn a distinction between operational activities for which the State does not enjoy sovereign immunity and planning or judgmental government functions for which the State does enjoy sovereign immunity. An operational act has been described as " `one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented."' City of Pinellas Park v. Brown, 604 So.2d 1222, 1226 (Fla. 1992) (quoting Kaisner v. Kolb, 543 So.2d 732,737 (F1a.1989)). In contrast, a planning or judgmental act involves " `an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning."' Id. State, Dep't of Transp. v. City of Pembroke Pines, 67 So. 3d 1162,1163-64 (Fla. 4th DCA 2011). The above-cited case, State, Dep't of Transp. v. City of Pembroke Pines, is a Florida appellate case that applies this principle to automobile crashes in which drivers strike trees. Here is a summary of the facts in that case. Evidence at trial established that, as the result of the collision between Lorenzo's car and a car driven by Natasha Russo, the tires of Lorenzo's car struck the median on Pines Boulevard and the car began to roll, ultimately striking a palm tree planted in the median. The median was designed by an engineering firm hired by the City of Pembroke Pines. The design firm's plans utilized an F curb along the median, reflected a design speed of 50 miles per hour, and called for the planting of royal palm trees in the median. Id. at 1163. At trial, plaintiffs in the case alleged that the Florida Department of Transportation was negligent in approving the design plans that called for planning street trees. Id. The Fourth District Court of Appeals held the following. Oflicers: Timothy Jackson, Chair � Victoria Tschinkel, Vice Chair � F. Gregory Barnhart, Secretary ^ Mark Waits, Treasurer Courtney Cunningham, Lee Constantine, Andrew Dickman, Jim Nicholas, Timolhee Sallin, Susan Trevarthen, Jake Varn Frrn;ri;we : Nathaniel P. Reed, Chairman Emeritus, LesterAbberger, Robert Davis, Roy Rogers, Earl Starnes Paw Owens Post Office Box 5948 Tallahassee, FL 32314-5948 'PHONE 850.222.6277 , FAx 850.222.1117 ��,lc:�,:�.1000iricnii;;i�fllori�ia.orq ° Ilicnd;:��l)IOG[hai.r�rg We hold that the alleged acts of negligence in the instant case are the type of planning level functions afforded sovereign immunity by our supreme court .... Decisions concerning the angles of an intersection or the position, shape and size of a median, or whether to put a cover over a drain pipe all involve a deliberate, considered choice by the government agency concerning the "best" way in which to proceed with the project design. The negligence alleged here similarly involves the exercise of discretionary, design choices, i.e., the type of curb, the type of vegetation permitted in the median, whether upgrade and/or alteration of the intersection was required after the increase in speed limit. As the supreme court held in Neilson, "the decision to build or change a road, and all the determinations inherent in such a decision, are of the judgmental, planning - level type." 419 So.2d at 1077 (emphasis added). Id. at 1165 (bolded and underlined emphasis added, italicized emphasis in original). Therefore, whether to plant trees in rights-of-way is a planning decision that does not create liability for local governments. Once street trees are planted, however, the way that a local government maintains them may be an operational act. Further, over time, the manner of tree maintenance might create risks. For example, tree roots might make sidewalks uneven or tree branches might obscure street views. A local government might not have sovereign immunity from a claim that it negligently maintained street trees. See Piedra v. City off. Bay Wll., 193 So. 3d 48 (Fla. 3rd DCA 2016). The Florida Supreme Court has explained that local governments may be liable for the manner in which it maintains rights-of-way.. [S]overeign immunity does not bar an action against a governmental entity for rendering an intersection dangerous by reason of obstructions to visibility if the danger is hidden or presents a trap and the governmental entity has knowledge of the danger but fails to warn motorists. Where a governmental entity knowingly maintains an intersection right-of-way which dangerously obstructs the vision of motorists using the street in a manner not readily apparent to motorists, it is under a duty to warn of the danger or make safe the dangerous condition. Bailey Drainage Dist. v. Stark, 526 So.2d 678, 681 (Fla. 1988). In conclusion, a local government would not have liability for the decision to plant trees in a right-of-way. Once trees are planted, however, the local government should maintain them. If a local government failed to maintain its street trees, and someone were injured, the local government may be liable. Whether the local government had liability would be a function of the specific facts in that instance. A liability analysis would at least require examination of factors such as whether the local government knew of a danger and whether the local government warned road users of the danger.