What is a city’s potential liability for negligently performing building inspections and issuing permits? The Town of Surfside, which at some point had issued a roof repair permit not long before the tragedy—but, apparently, did not flag the building as being in an emergency situation—reportedly contributed $2 million to the $1 billion wrongful death/personal injury settlement of the Champlain Towers South collapse case. The Champlain Towers South collapse case, however, is noted for (1) being an extremely shocking and rare tragedy resulting in total destruction of the property and the death of 98 people; and (2) its “quick” settlement—announced the day before the one-year anniversary of the tragedy—that was praised by the judge overseeing the class action lawsuit as a tremendous result for the plaintiffs (not to take away from the pain suffered by the victims) when there could have been years of litigation.

As this news article put it:

One day before the one-year mark of the Champlain Towers South collapse, Judge Michael Hanzman officially approved a roughly $1.02 billion settlement. 

Ninety-eight people lost their lives when the Surfside condo partially collapsed at 1:22 a.m. 

The settlement money will be split between surviving families, those who suffered injuries, and the 136 condo owners. 

Judge Hanzman praised the dozens of lawyers for being able to come to a settlement so quickly and avoiding years of litigation. Cases like these typically take well over a decade to reach a conclusion. 

“It will never be enough to compensate them for the tragic loss. This settlement is the best we can do. It’s a remarkable result. It is extraordinary,” said Hanzman.

It is unclear whether any real “litigation” happened in terms of defendants asserting liability defenses. In other words, it appears the Town of Surfside (and/or its insurer) quickly agreed that contributing $2 million to the settlement fund was the right thing to do, as opposed to making the legal argument that it could not be held liable for negligently issuing a permit or failing to properly perform a building inspection. It appears that all of the defendants (and their insurers) agreed to maximize the settlement as quickly as possible. Indeed:

Many survivors sat in on what’s called a fairness hearing, as the judge determined whether the settlement is “fair, reasonable and adequate.” Despite the circumstances, everyone who had the opportunity to speak, sang the praises of the court, the attorneys, and the expeditious manner of its conclusion.

This is truly extraordinary. In my 25 years as a trial lawyer in Florida, I have never heard of or read about such a situation. The Champlain Towers South tragedy garnered worldwide attention, and it appears that all defendants (and/or their insurers) agreed to work together to reach a quick resolution that put substantial money into the hands of the survivors of the deceased (and the victims who survived).

But what if the Town of Surfside had challenged liability? What arguments does a municipality have against being held liable for performing building inspections negligently or negligently issuing permits?

The Florida Supreme Court answered that question about 39 years ago, and the Town probably would have won. In Trianon Park Condo. Assoc. v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), the Third District Court of Appeal held the City of Hialeah could be liable to condominium owners for damage to condominium units caused by severe roof leakage and other building defects on the basis that the city building inspectors were negligent in their inspections during the construction of the condominiums. The Florida Supreme Court was asked to decide this certified question:

Whether under section 768.28, Florida Statutes (1975), as construed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), a municipality retains its sovereign immunity from a suit predicating liability solely upon the allegedly negligent inspection of a building, where that municipality played no part in the actual construction of the building.

Id. at 914-15. The Florida Supreme Court restated the certified question as follows:

Whether a governmental entity may be liable in tort to individual property owners for the negligent actions of its building inspectors in enforcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity.

The Florida Supreme Court held the answer is no. Cf. Haver v. City of W. Palm Beach, Inc., 298 So. 3d 647 (Fla. 4th DCA 2020) (holding separation of powers doctrine does not preclude a plaintiff from bringing an equitable enforcement action against a city to direct enforcement of zoning codes if plaintiff can show some special damage from an alleged zoning violation), decision quashed, cause remanded, 330 So. 3d 860 (Fla. 2021); City of W. Palm Beach, Inc. v. Haver, 330 So. 3d 860 (Fla. 2021) (quashing 298 So. 3d 647, holding injunctive relief is not available to compel a city to enforce a zoning ordinance against a third party).

The Trianon Park court reasoned:

In summary, we first emphasize that section 768.28, Florida Statutes (1975), which waived sovereign immunity, created no new causes of action, but merely eliminated the immunity which prevented recovery for existing common law torts committed by the government. We hold that there has never been a common law duty to individual citizens for the enforcement of police power functions. Further, we find that no statutory duty for the benefit of individual citizens was created by the city’s adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code. To hold a governmental entity liable for carrying out this type of enforcement activity would make the taxpayers of the enforcing governmental entity insurers of all building construction within the jurisdiction of the entity. We conclude that such a result was never intended by either the legislature or the city in enacting the building code provisions. Our decision, as explained below, is consistent with the decisions of the majority of states and the recent decision of the United States Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), ___ U.S. ___, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

Id. (emphasis added). The facts of the case were these:

The record reflects that Trianon Park Condominium Association, consisting of 65 unit-owners, brought suit against the developer for breach of warranty, negligence, and strict liability, and against the City of Hialeah for its negligent performance in inspecting the condominium building and certifying it for occupancy. Trianon asserted that there was improper construction of the roof membrane, flashing, and drainage system on the main roofs, and other flaws in the construction which resulted in leaks and water damage to 49 of the 65 condominium units. The action against the developer was settled and the jury returned a verdict against the city in the amount of $291,000. The award was reduced by the amount of the settlement with the developer and was limited to the maximum amount provided under section 768.28(5). On appeal, the district court affirmed and held that the enforcement of a building code “is a purely ministerial action which does not rise to the status of basic policy evaluation since the majority of the inspectors’ acts involve simple measurement and enforcement of the building code as written rather than the exercise of discretion and expertise,” and that “[o]nce the City undertook to inspect, review and certify construction, it was obligated to do so reasonably and responsibly in accordance with acceptable standards of care.” 423 So.2d at 913. The court concluded that “the City’s inspection and certification of buildings within its borders is an operational level activity, for which it may be subject to tort liability under section 768.28, Florida Statutes.” Id.

Id. Trianon, although it prevailed in the district court, petitioned the Florida Supreme Court for review of the certified question. In support of the district court’s decision, Trianon contended that building inspections performed by a governmental entity under an adopted building code are “operational-level” activities. Trianon argued that the operational-planning analysis developed in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and adopted by this Court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), was the sole means to determine liability; that the Florida Supreme Court clearly stated in Commercial Carrier that the operational-planning test has replaced the special duty/general duty analysis contained in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967); and that the second and third elements of the Evangelical Brethren test had not been satisfied because building inspections themselves did not change the direction or policy of the building inspection program of the city but were purely ministerial in nature.

Trianon acknowledged, however, that law enforcement and fire suppression activities should not subject the city to tort liability. It distinguished building inspections from those types of activities on the ground that the legislature has imposed broad regulatory requirements on municipalities in the area of building code enforcement under chapter 553, Florida Statutes (1979), and asserted that, unlike law enforcement or fire suppression, there are mandatory duties to be followed during building inspections.

Trianon argued that the court should follow the four states that had determined that government building inspections can be a basis for governmental liability, and that the court should adopt the views expressed in Adams v. State, 555 P.2d 235 (Alaska 1976); Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Stewart v. Schmieder, 386 So.2d 1351 (La. 1980); and Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). In addition, while acknowledging that decisions interpreting the Federal Tort Claims Act may not be applicable because of certain exemptions contained in the Act, Trianon asserted that decisions by the federal courts in Caban v. United States, 671 F.2d 1230 (2d Cir.1982); Neal v. Bergland, 646 F.2d 1178 (6th Cir.1981); Delta Air Lines, Inc. v. United States, 561 F.2d 381 (1st Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); and Scott v. Eastern Air Lines, Inc., 399 F.2d 14 (3d Cir.1967), cert. denied, 393 U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968), were consistent with a finding of liability for the governmental entity in making such inspections.

In response, the City of Hialeah contended that since there was no analogous cause of action against private parties for the negligent enforcement of building codes, there can be no liability for the city. The city argued that the waiver of sovereign immunity did not create any duty and that no such duty was created by either the statute establishing the building code or the common law. The city reasoned that the court, in Commercial Carrier, recognized that an underlying cause of action is required before a governmental entity can be held liable. It distinguished between governmental liability for damages caused by the operation or maintenance of capital improvements owned and controlled by the government and governmental liability in those circumstances where the government is regulating activities and enforcing compliance with the law through its police power function.

The city and the other governmental entities that appeared in the action pointed out that the majority of federal jurisdictions which had addressed the issue had held that federal regulatory enforcement activities, such as those performed by the Environmental Protection Agency, the United States Food and Drug Administration, and the Federal Aviation Authority, did not give rise to actionable tort duties owed by the United States to individual citizens. See Sellfors v. United States, 697 F.2d 1362 (11th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984); Raymer v. United States, 660 F.2d 1136 (6th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558 (8th Cir.1979); Zabala Clemente v. United States, 567 F.2d 1140 (1st Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Baer v. United States, 511 F. Supp. 94 (N.D.Ohio 1980), aff’d, 703 F.2d 558 (6th Cir.1982); Carroll v. United States, 488 F. Supp. 757 (D.Idaho 1980); Mercer v. United States, 460 F. Supp. 329 (S.D.Ohio 1978). The governmental entities also argued that thirteen states had held that no liability may arise from building inspections. Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982); Duran v. City of Tucson, 20 Ariz. App. 22, 509 P.2d 1059 (1973); Stigler v. City of Chicago, 48 Ill.2d 20, 268 N.E.2d 26 (1971); Grogan v. Commonwealth, 577 S.W.2d 4 (Ky.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979); E. Eyring & Sons Co. v. City of Baltimore, 253 Md. 380, 252 A.2d 824 (1969); Dinsky v. Town of Framingham, 386 Mass. 801, 438 N.E.2d 51 (1982); Stemen v. Coffman, 92 Mich. App. 595, 285 N.W.2d 305 (1979); Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972); Fiduccia v. Summit Hill Construction Co., 109 N.J. Super. 249, 262 A.2d 920 (1970); O’Connor v. City of New York, 58 N.Y.2d 184, 460 N.Y.S.2d 485, 447 N.E.2d 33 (1983); Shelton v. Industrial Commission, 51 Ohio App.2d 125, 367 N.E.2d 51 (1976); City of Denton v. Weems, 456 S.W.2d 207 (Tex.Civ.App. 1970); 917*917 and Georges v. Tudor, 16 Wash. App. 407, 556 P.2d 564 (1976). Further, the city asserted that the decisions from the states of New York, Ohio, and Minnesota, which the Florida Supreme Court cited in Commercial Carrier, were all consistent with the view that no liability can arise from the enforcement of a building code. In addition, the city cited section 315 of the Restatement of Torts, which expresses the general common law rule that there is no duty to prevent the misconduct of a third person, and section 288 of the Restatement, which relates in its commentary that legislative enactments for the protection of the interests of the community as a whole, rather than for the protection of any individual or class, create no duty or liability. The city argued that Florida law has developed in a way similar to the law of Minnesota, New York, and Ohio, and noted that the Florida Supreme Court, in Rupp v. Bryant, 417 So.2d 658 (Fla. 1982), had recently recognized the principle that before liability could be imposed a duty must first exist. Finally, the city argued that law enforcement is not the kind of activity for which the state intended to waive its immunity since it is not the type of activity engaged in by private individuals. The Florida Supreme Court agreed with the city on all of these points.

The court noted that it was apparent from the decisions of the district courts of appeal that the courts and the Bar were having difficulty interpreting the purpose of section 768.28 and applying the principles set forth in Commercial Carrier. A discussion of the evolving history of sovereign immunity, particularly as applied to municipalities, and the intent and purpose of section 768.28, said the court, is set forth in Cauley v. City of Jacksonville, 403 So.2d 379 (Fla. 1981). In order to clarify the law regarding governmental tort liability, said the court, it was important to first set forth certain basic principles:

First, for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care. Commercial Carrier. Further, legislative enactments for the benefit of the general public do not automatically create an independent duty to either individual citizens or a specific class of citizens. Restatement (Second) of Torts § 288 comment b (1964).

Second, it is important to recognize that the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities. The statute’s sole purpose was to waive that immunity which prevented recovery for breaches of existing common law duties of care. Section 768.28 provides that governmental entities “shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.” This effectively means that the identical existing duties for private persons apply to governmental entities.

Third, there is not now, nor has there ever been, any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals. In addition, there is no common law duty to prevent the misconduct of third persons. See Restatement (Second) of Torts § 315 (1964).

Fourth, under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights. See Commercial Carrier; Askew v. Schuster, 331 So.2d 297 (Fla. 1976); art. II, § 3, Fla. Const. Judicial intervention through private tort suits into the realm of discretionary decisions relating to basic governmental functions would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine.

Fifth, certain discretionary functions of government are inherent in the act of governing and are immune from suit. Commercial Carrier. It is “the nature of the conduct, rather than the status of the actor,” that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability. Varig Airlines, 104 S.Ct. at 2765.

Id. at 917-18 (emphasis added). In addition to these five basic principles, said the Florida Supreme Court, a review of the Commercial Carrier decision was necessary. It was important to note at the outset, said the court, that the decision in Commercial Carrier, in rejecting the general duty/special duty dichotomy contained in Modlin v. City of Miami Beach, did not discuss or consider conduct for which there would have been no underlying common law duty upon which to establish tort liability in the absence of sovereign immunity. Rather:

… we were dealing with a narrow factual situation in which there was a clear common law duty absent sovereign immunity. We expressly recognized that there were areas of governmental activity where “orthodox tort liability stops and the act of governing begins,” 371 So.2d at 1018, citing Evangelical Brethren, 67 Wash.2d at 253, 407 P.2d at 444, as well as the “distinct principle of law … which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing.” 371 So.2d at 1020. We concluded by holding that “certain `discretionary’ governmental functions remain immune from tort liability … because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.” Id. at 1022. We proceeded to adopt the distinction between the planning and operational levels of decision-making set forth in Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 73 Cal. Rptr. 240 (1968). We also commended, for use on a case-by-case method, the test set forth in Evangelical Brethren which utilized the following criteria for determining the line of demarcation between discretionary and other executive or administrative processes, specifically:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

371 So.2d at 1019, quoting 67 Wash.2d at 255, 407 P.2d at 445. In applying this test to a particular set of circumstances:

… if all the questions can be answered in the affirmative, then the governmental conduct is discretionary and “nontortious.” If one or more questions call for a negative answer, then further inquiry is necessary, depending upon the facts and circumstances involved. 67 Wash.2d at 255, 407 P.2d at 445. Our adoption of the Evangelical Brethren test was intended to assist in distinguishing between the discretionary planning or judgment phase, and the operational phase of government. In order to subject the government to tort liability for operational phase activities, there must first be either an underlying common law or statutory duty of care in the absence of sovereign immunity. In addition, although the Evangelical Brethren test works properly in instances where a common law or statutory duty exists, it need not be applied in situations where no common law or statutory duty of care exists for a private person because there clearly is no governmental liability under those circumstances.

To better clarify the concept of governmental tort liability, said the court, it is appropriate to place governmental functions and activities into the following four categories: (I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens.

The court then discussed these four categories.

I. Legislative, Permitting, Licensing, and Executive Officer Functions.

Clearly, said the court, the legislature, commissions, boards, city councils, and executive officers, by their enactment of, or failure to enact, laws or regulations, or by their issuance of, or refusal to issue, licenses, permits, variances, or directives, are acting pursuant to basic governmental functions performed by the legislative or executive branches of government. The judicial branch has no authority to interfere with the conduct of those functions unless they violate a constitutional or statutory provision. There has never been a common law duty establishing a duty of care with regard to how these various governmental bodies or officials should carry out these functions. These actions are inherent in the act of governing. See Commercial Carrier; City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. 2d DCA 1978) (refusal to renew license); Hensley v. Seminole County, 268 So.2d 452 (Fla. 4th DCA 1972) (vehicle inspection); Central Advertising Co. v. City of Novi, 91 Mich. App. 303, 283 N.W.2d 730 (1979) (enactment of zoning ordinance); Bidinger v. City of Circleville, 177 N.E.2d 408 (Ohio App. 1961) (enactment of criminal ordinance); J.S.K. Enterprises, Inc. v. City of Lacey, 6 Wash. App. 433, 493 P.2d 1015 (1972) (enactment of ordinance).

II. Enforcement of Laws and Protection of the Public Safety.

How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials, as well as the discretionary authority given fire protection agencies to suppress fires. This same discretionary power to enforce compliance with the law is given to regulatory officials such as building inspectors, fire department inspectors, health department inspectors, elevator inspectors, hotel inspectors, environmental inspectors, and marine patrol officers. A “discretionary function exception,” within which these types of activities fall, was expressly recognized in the Federal Tort Claims Act and has also been recognized as inherent in the act of governing by the Florida Supreme Court and a majority of the other jurisdictions that have addressed this issue. See, e.g., Commercial Carrier; Morris v. County of Marin, 18 Cal.3d 901, 559 P.2d 606, 136 Cal. Rptr. 251 (1977); Cairl v. State, 323 N.W.2d 20 (Minn. 1982); Swartz v. Masloff, 62 Pa.Commw. 522, 437 A.2d 472 (1981); Maynard v. City of Madison, 101 Wis.2d 273, 304 N.W.2d 163 (1981). See also Note, The Discretionary Exception and Municipal Tort Liability: A Reappraisal, 52 Minn.L.Rev. 1047 (1968); Comment, The Discretionary Function Exception to Government Tort Liability, 61 Marq.L.Rev. 163 (1977). The necessity for this discretionary function exception was discussed by the United States Supreme Court in Varig Airlines, 104 S.Ct. at 2762-65. There have been a number of cases dealing with police power discretionary function activities for which no liability was found. See Rodriguez v. City of Cape Coral, 468 So.2d 963 (Fla. 1985) (decision to take person into protective custody); City of Daytona Beach v. Huhn, 468 So.2d 963 (Fla. 1985) (decision to make arrest); City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla. 1985) (decisions of firefighters in combatting fire); Carter v. City of Stuart, 468 So.2d 955 (Fla. 1985) (enforcement of dogcatcher ordinance); Reddish v. Smith, 468 So.2d 929 (Fla. 1985) (prisoner classification); Duvall v. City of Cape Coral, 468 So.2d 961 (Fla. 1985) (enforcement of drunk driving statute); Everton v. Willard, 468 So.2d 936 (Fla. 1985) (decision to make arrest); Wong v. City of Miami, 237 So.2d 132 (Fla. 1970) (provision of police protection); Jones v. City of Longwood, 404 So.2d 1083 (Fla. 5th DCA 1981), review denied, 412 So.2d 467 (Fla. 1982) (building inspection and condemnation); Berry v. State, 400 So.2d 80 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla. 1981) (acts of judges, state attorneys, and parole and probation commission); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979) (failure to provide adequate police protection); Weston v. State, 373 So.2d 701 (Fla. 1st DCA 1979) (state attorney action); and Shoner v. Concord Florida, Inc., 307 So.2d 505 (Fla. 3d DCA), cert. denied, 317 So.2d 767 (Fla. 1975) (enforcement of city ordinance).

The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care. See, e.g., Crawford v. Department of Military Affairs, 412 So.2d 449 (Fla. 5th DCA), review denied, 419 So.2d 1196 (Fla. 1982) (negligent operation of vehicle).

III. Capital Improvement and Property Control Functions.

As the court had made clear in prior cases, there is no liability for the failure of a governmental entity to build, expand, or modernize capital improvements such as buildings and roads. See Perez v. Department of Transportation, 435 So.2d 830 (Fla. 1983); City of St. Petersburg v. Collom, 419 So.2d 1082 (Fla. 1982); Ingham v. Department of Transportation, 419 So.2d 1081 (Fla. 1982); Department of Transportation v. Neilson, 419 So.2d 1071 (Fla. 1982). A governmental entity’s decision not to build or modernize a particular improvement is a discretionary judgmental function with which the court has held the courts cannot interfere. See Neilson (decision to upgrade roadway). See also Rumbough v. City of Tampa, 403 So.2d 1139 (Fla. 2d DCA 1981) (operation of sanitary landfill); Romine v. Metropolitan Dade County, 401 So.2d 882 (Fla. 3d DCA 1981), review denied, 412 So.2d 469 (Fla. 1982) (traffic control decisions). On the other hand, once a governmental entity builds or takes control of property or an improvement, it has the same common law duty as a private person to properly maintain and operate the property. See Commercial Carrier (maintenance of traffic control devices); Department of Transportation v. Webb, 438 So.2d 780 (Fla. 1983) (maintenance of railroad crossing); Hodges v. City of Winter Park, 433 So.2d 1257 (Fla. 5th DCA 1983), review denied, 444 So.2d 416 (Fla. 1984) (maintenance of road); Town of Belleair v. Taylor, 425 So.2d 669 (Fla. 2d DCA 1983) (maintenance of foliage on median); City of Tallahassee v. Elliott, 326 So.2d 256 (Fla. 1st DCA 1975), cert. denied, 344 So.2d 324 (Fla. 1977) (maintenance of drainage system).

IV. Providing Professional, Educational, and General Services.

Providing professional, educational, and general services for the health and welfare of citizens is distinguishable from the discretionary power to enforce compliance with laws passed under the police power of this state. These service activities, such as medical and educational services, are performed by private persons as well as governmental entities, and common law duties of care clearly exist. Whether there are sufficient doctors provided to a state medical facility may be a discretionary judgmental decision for which the governmental entity would not be subject to tort liability. Malpractice in the rendering of specific medical services, however, would clearly breach existing common law duties and would render the governmental entity liable in tort. A discussion of immunity for the government and its employees is contained in Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (supervision of public school students held not to be a discretionary function).

In considering governmental tort liability under these four categories, the Florida Supreme Court found that there was no governmental tort liability for the action or inaction of governmental officials or employees in carrying out the discretionary governmental functions described in categories I and II because there has never been a common law duty of care with respect to these legislative, executive, and police power functions, and the statutory waiver of sovereign immunity did not create a new duty of care. On the other hand, there may be substantial governmental liability under categories III and IV. This result follows, explained the court, because there is a common law duty of care regarding how property is maintained and operated and how professional and general services are performed. It is in these latter two categories, said the court, that the Evangelical Brethren test is most appropriately used to determine what conduct constitutes a discretionary planning or judgmental function and what conduct is operational for which the governmental entity may be liable.

Prior to the enactment of section 768.28, sovereign immunity for all governmental entities, including the state and all of its agencies and subdivisions, remained in full force except for the proprietary and special duty exceptions carved out by the Florida Supreme Court. Section 768.28 waived governmental immunity for most government activities where there had been an underlying common law duty of care. The waiver was intended to be broad in its coverage, but clearly was not intended, said the court, to create causes of action for activities that are inherently governmental in nature.

The Instant Case:

In the instant case, said the court, Trianon attempted to establish liability based upon an alleged general duty to enforce the building code. It contended that the legislature, by enacting chapter 553, established a statutory duty on the part of governmental entities to inspect construction projects for the protection of individual citizens as well as the general public. Trianon asserted that this duty to inspect was intended by the legislature to benefit and protect individual property owners. Further, Trianon emphatically contended that the issue presented involved the right of the public to the enforcement of minimum standards affecting health and safety and the general protection of human life and property. The time had come, argued Trianon, for the judicial branch to make sure the public receives the minimum protection that the legislature has mandated it receive from governmental entities. Trianon asserted that this protection will be realized only when the counties and municipalities are held financially accountable for the negligent enforcement of building codes.

The Florida Supreme Court, in a very 1980s-style way (I question whether today’s court would reach a different result), rejected the contention that there was any such legislative intent to establish this individual right for property owners and the assertion “that the judiciary should interfere with how another branch of government chooses to enforce the law.” The court reasoned:

Nothing contained in chapter 553 evinces an intent to give individual citizens a statutory right of recovery for the government’s negligent inspection of their property. The act itself states that its purpose and intent is to “allow reasonable protection for public safety, health, and general welfare for all the people of Florida at the most reasonable cost to the consumer.” Section 553.72, Fla. Stat. (1983) (emphasis added). This law is no different than other acts of the legislature which seek to protect by regulation the welfare of society. To give effect to Trianon’s position would make the taxpayers of each governmental entity liable to individual property owners for the failure of governmental inspectors to use due care in enforcing the construction requirements of the building code. It would make the governmental entity and its taxpayers insurers for all building construction defects. If we approved this principle for building inspections, we would also necessarily have to find governmental entities and their taxpayers fiscally responsible for the failure to use due care in carrying out their power to enforce compliance with laws regarding fire department inspections, elevator inspections, hotel and restaurant inspections, water and sewer plant inspections, swimming pool inspections, and multiple other governmental inspection programs designed to protect the public. We choose instead to join the majority of jurisdictions in rejecting governmental liability in these types of situations.

Id. (emphasis added). The court found that the enactment of a statute giving a governmental entity the power to enforce compliance with the law does not, in and of itself, give individuals a new right of action that previously never existed. Further:

There is no question that the legislature has the power to create such a cause of action, but we find no such intent in the particular act which provided for the establishment of building codes in this state. We find no indication that chapter 553 was intended as a means to guarantee the quality of buildings for individual property owners or developers. We find that the enforcement of building codes and ordinances is for the purpose of protecting the health and safety of the public, not the personal or property interests of individual citizens. The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation. Statutes and regulations enacted under the police power to protect the public and enhance the public safety do not create duties owed by the government to citizens as individuals without the specific legislative intent to do so. The enforcement of statutes or regulations is clearly distinguishable from the legal responsibilities owed by the government as the owner and operator of buildings, roadways, or other facilities under its control and its responsibilities in providing general or professional services. As previously mentioned, in the latter instances the government has the same duty as that imposed upon private citizens.

Id. (emphasis added).The court reasoned:

Governments must be able to enact and enforce laws without creating new duties of care and corresponding tort liabilities that would, in effect, make the governments and their taxpayers virtual insurers of the activities regulated. To hold otherwise would result in a substantial fiscal impact on governmental entities which was never intended by the legislature. Such a holding would inevitably restrict the development of new programs, projects, and policies and would decrease governmental regulation intended to protect the public and enhance the public welfare. Further, such a holding would represent an unconstitutional intrusion by the judiciary into the discretionary judgmental functions of both the legislative and executive branches of government.

The government clearly has no responsibility to protect personal property interests or ensure the quality of buildings that individuals erect or purchase. The proper remedy for faulty construction lies in an action against the contractor, developer, or seller.

Id. (emphasis added). The court cautioned trial and appellate courts who apply the decision that the holding did not have the broad ramifications characterized by the dissents, nor did it recede from Commercial Carrier. The decision addressed only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county, or municipal governmental entity.

The Trianon Park decision feature some interesting concurring and dissenting opinions. The concurrence stated:

To rule differently from what we do in this case would expect too much from government; it would likely lend to government’s cessation of building inspections. Government should not have to pay for the wrongs caused by others because they fail to discover or prevent them through its failure to enforce statutes, ordinances, rules or regulations. I don’t think the legislature either intended or envisioned governmental liability in such circumstances when it enacted the waiver of sovereign immunity statute. It is quite another thing when the government’s activity directly causes an injury. Liability may attach in such circumstances and I would have no hesitancy in saying so.

The dissent stated:

The majority today has further eroded the legislature’s unequivocal waiver of sovereign immunity and further reduced the rights of citizens of this state to be recompensed for injury caused by negligent performance of statutorily mandated duties.

Before this Court’s decision in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), municipalities could not be sued for damages arising out of the negligent performance of governmental acts, but were liable just as ordinary citizens for the negligent acts of their employees arising out of their proprietary functions, such as the provision of municipal utilities. In Hargrove, this Court for the first time recognized the anachronism of sovereign immunity, particularly as applied to municipalities, and held that a municipality was liable for the negligence of its employees in its police department on the theory of respondeat superior. In Modlin v. City of Miami Beach, this Court, in effect, receded from the broad, sweeping changes ushered in by Hargrove and held that a municipal employee, and hence the municipality, was not liable in damages to someone who was injured as a result of his negligent conduct unless there was a one-on-one relationship between the municipal employee and the injured party, i.e. where a municipality “undertook the manual operation of a railroad crossing signal toward a motorist attempting to negotiate that crossing,” id. at 76, or “plac[ed] on police officers a duty not to deprive those with whom they come in contact of their constitutional rights of privacy, integrity of person, and so forth.” Id. The law was thus clear that where there was that one-on-one relationship that both the negligent municipal employee and the municipality were jointly and severally liable to the injured person.

Further:

The law remained thus until the legislature enacted section 768.28 in 1973, purporting to waive sovereign immunity of all governmental bodies except under stated circumstances, but at the same time immunizing the negligent employee from all liability. In Commercial Carrier, this Court construed that statute for the first time. In that case the governmental unit was claimed to be negligent in the maintenance of the traffic light at an intersection and negligent in failing to maintain a stop sign at an intersection and negligent in failing to paint the word “stop” at an intersection. The trial courts and the district court of appeal held that no causes of action were stated. According to this Court, the rationale for the district court of appeal’s holding was “that no cause of action existed for the alleged wrong and, therefore, section 768.28 had no applicability because it was not intended to create a cause of action where none existed in common law prior to its enactment.” 371 So.2d at 1014 (emphasis supplied). In quashing the opinion of the district courts, this Court said, “Consequently, we concluded that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of 768.28.” Id. at 1016. In Commercial Carrier, the respondent argued “that since private individuals do not perform government functions, there is no waiver where any governmental function is involved.” Id. This argument was summarily rejected by this Court. This aspect of the Court’s holding was perhaps best highlighted by the dissenting opinion of Justice Overton when he said, “Common sense dictates that the maintenance of thousands of miles of public roadways is not the kind of activity which private individuals engage in, but is uniquely governmental in nature.” Id. at 1023. The Court did however read into 768.28 the concept that “certain `discretionary’ governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.” Id. at 1022. Thus the distinction between “planning” and “operational” levels of decision-making by governmental agencies was adopted; planning-level decisions were immune and operational decisions were not immune.

In Trianon Park, said the dissent, the majority embraced the very analysis explicitly quashed in Commercial Carrier. Further:

The majority focuses on whether, at common law, a duty existed running from a governmental agency to a member of the public. In so doing the majority begs the question and reinstates the old governmental-proprietarial distinction the legislature clearly intended to abolish in waiving sovereign immunity.

At common law, the sovereign was immune from suit, thus the question of whether or not duty existed was moot, and never litigated. The waiver of sovereign immunity rang in a new era in which that issue is of utmost importance. To answer the question by reference to pre-waiver common law in effect repeals the statute and usurps legislative function.

It is well settled at common law, said the dissent, that a statute creates a duty running from one whose behavior is the subject of the statute to an individual if that individual is in the class designed to be protected by the statute and the injury suffered is the harm the statute is intended to prevent. In short, said the dissent:

All private citizens are liable for breaches of statutorily imposed duties. A governmental agency, through its employees, then, should be liable for breaches of statutorily imposed duties under precisely the same analysis.

The majority recognized that to subject the government to tort liability for operational phase negligence, there must be either an underlying common law or a statutory duty of care in the absence of sovereign immunity. The statute in the case at hand clearly mandated that no building permit be issued and that no certificate of occupancy be issued unless the statutory code was complied with. This was the statutory duty, said the dissent, the breach of which gave rise to the cause of action being asserted against the governmental entity. The dissent discussed the building code and the fact that a building inspector is doing operational, not planning, activities:

The city adopted a building code. Whether it should adopt a building code, and if so what the code should contain, is a planning-level decision and the city has immunity in this area. The code prohibits the construction of a building until and unless a building permit is obtained, and in order to get one, the builder has to establish that the building plans conform to the code. The city employee who makes this determination of compliance or its absence is not making policy. That has already been done with the adoption of the code. This is a classic operational-level decision — to determine whether the plans comply with the code. If so, the permit must be issued. If not, a permit must not be issued. No discretion is vested in the employee. The code also requires on-site inspections to be performed to insure the building is being constructed in accordance with the plans. Here again the city inspector is not making policy. He is simply performing a ministerial task, another classic operational-level decision. If the construction is in accordance with the plans, a certificate of occupancy has to be issued. To issue one when construction is not in accordance with the plans is a violation of the code. The inspector’s duty is prescribed by law. He has no discretion to breach that duty.

The majority concluded that to hold a governmental entity liable for making certain that the building code is carried out would make the governmental entity insurors of all building construction within the jurisdiction of the entity. Nothing, said the dissent, could be further from the truth:

An insuror is a guarantor and is liable without fault. Here the injured party must still prove negligence and proximate cause.

The statute, said the dissent, was relatively simple:

If a private person would be liable to the injured party in accordance with the general laws of the state, then the governmental entity is liable. If an architect is negligent in his supervision of construction of a building and such negligence is the proximate cause of another’s injury or damage, he is clearly liable, whether there be privity or not. If the manufacturer of a building elevator is negligent in its inspection of the elevator and someone is injured or damaged thereby, he is clearly liable. In my opinion, the legislature intended to impose liability on a government entity for comparable negligent conduct by an inspector employed by a governmental entity.

It cannot be argued, said the dissent, that the purchasers of these substandard condominium units were not within the class sought to be protected:

While certification of housing as complying with a minimum building code does redound to the general good, its particular effect is to ensure that those who inhabit such housing are protected from the irresponsibility and carelessness of builder/entrepreneurs whose goal to maximize profits would, as here, minimize habitability. The harm, defective housing which threatens the health and welfare of its occupants, is as obviously that which the statute was designed to prevent.

The majority said, “Finally, the city argues that law enforcement is not the kind of activity for which the state intended to waive its immunity since it is not the type of activity engaged in by private individuals. We find persuasive the arguments of the city.” This, said the dissent, was precisely the argument urged in Commercial Carrier and finally rejected by the court.

In short, said the dissent, the majority was receding from Commercial Carrier and adopting the Modlin doctrine and the old “governmental/proprietary” test. Only those actions which are commonly performed by private individuals would, under the majority’s decision, give rise to suits against the state. The dissent stated:

I believe we open ourselves to charges of judicial legislation when, six years after construing a statute based on legislative intent, this Court reverses its reading of that statute in spite of the fact that the legislature has given no indication that the original construction was erroneous.

Another dissent wrote:

The district court was correct in holding that building inspections are operational level activities under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). If we were to answer the certified question as it was presented, Commercial Carrier would dictate a negative answer. The majority opinion recasts the question into one involving traditional tort principles which I paraphrase as, “Does a government entity have a duty to individual property owners under traditional tort law to enforce building code ordinances?” The majority then answers its own question by holding that the county is sovereignly immune because there is no duty. However, just as a waiver of sovereign immunity does not create a duty, an absence of duty does not create sovereign immunity.

The majority opinion, said the dissent, wrongly commingled the separate issues of sovereign immunity and duty under traditional tort law. If a government entity is sovereignly immune from suit because of the separation of powers doctrine, said the dissent, there is no jurisdiction over the person (party) and the courts may not hear or address the merits of the case. Thus, any discussion of duty can only mean one of two things: the city is not sovereignly immune from suit and the courts have jurisdiction to decide the case on the merits using traditional tort principles; or, the city is immune and the court’s analysis of the merits is dicta. The dissent maintained that it is the former: government entities are not sovereignly immune from suit on discretionary, planning, or police power activities. They may or may not be liable on the merits, said the dissent, but they are not immune.

The majority rejected the argument that the city’s general duty to inspect under the building code created a special or actionable duty to individual citizens who suffer injury from the city’s negligence in performing building inspections. The dissent complained:

Careful readers will recognize, absent the labeling, the substance of the Modlin doctrine which we condemned in Commercial Carrier. Whatever label may be placed on it, the doctrine is routinely used in both private and governmental tort law because duty is a fundamental element in proving actionable negligence.

In Modlin, the complaint against the city alleged negligent performance of an inspection of construction in progress with the resulting failure to discover the defect that eventually caused the collapse of a mezzanine which killed plaintiff/petitioner’s wife. In the first part of the opinion the Florida Supreme Court analyzed the issue of sovereign immunity. The actual analysis was now irrelevant, said the dissent, because it was based on a theory of municipal sovereign immunity which had been superseded by the enactment of section 768.28, Florida Statutes (1973), abolishing the distinctions between municipal and state sovereign immunity. See Commercial Carrier, 371 So.2d at 1016. Nevertheless, said the dissent, the court’s conclusion was pertinent: “it follows that if the respondent city is to escape liability, it will have to be other than by the path of municipal tort immunity.” Modlin, 201 So.2d at 74. In other words, there was no sovereign immunity from suit but it still had to be determined whether there was liability under traditional tort principles.

The dissent continued:

It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally.

Id. at 75 (citations omitted). The second quoted sentence, said the dissent, is the Modlin doctrine, which can be restated as, “A general duty to all does not, without more, establish a special (actionable) duty to a particular person.” Governments have a general duty to all to preserve the peace by enforcing the law and regulating anti-social behavior. If violation of this general duty constituted actionable negligence, the government would be potentially liable in every tort suit between private individuals. The situation would be the same as that which existed in early English law before the courts began to differentiate between absolute standards of conduct owed to the world at large and legally recognizable standards owed to particular persons. See generally, Prosser and Keeton, The Law of Torts § 53 (5th ed. 1984). Violation of the general duty to do unto others as you would have them do unto you, without more, is not actionable negligence in a secular court of law. Thus, said the dissent, private tort law and the Modlin doctrine are congruent.

In Commercial Carrier, said the dissent:

… we addressed the general duty — special duty dichotomy of the Modlin doctrine. We stated the doctrine as, “no cause of action exists for … the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person.” Commercial Carrier, 371 So.2d at 1015. This statement highlights the first prong of the doctrine that a general duty does not create a special duty but obscures the equally important prong that the presence of a general duty does not preclude the presence of a special duty. Plaintiffs must be given the opportunity to present the “more” which may establish a special duty. We concluded:

Regardless, it is clear that the Modlin doctrine is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not.

Id. 

The dissent concluded that the Modlin doctrine did survive the waiver of sovereign immunity. The doctrine is grounded on the traditional tort principle of duty, not sovereign immunity, as the Modlin court itself recognized. The legislature, in section 768.28, waived sovereign immunity, not the traditional principle that duty is an essential element of actionable negligence. Section 768.28 not only did not abolish the doctrine, it affirmatively adopted the substance of the doctrine by providing that the government would be liable only “if a private person, would be liable to the claimant, in accordance with the general laws of this state[.]” Section 768.28(1).

Turning to the case at hand, the dissent stated that it agreed with that portion of Justice Ehrlich’s dissent (the dissent quoted above) wherein he concluded that the government’s assumption of the responsibility to inspect and certify buildings in accordance with the building code created a duty toward the purchasers of the certified buildings. This, concluded the dissent, is the type of special duty the Modlin doctrine recognizes as actionable.

The dissent pointed to other decisions in which he had dissented on the issue of sovereign immunity:  Everton v. Willard, 468 So.2d 936 (Fla. 1985), Carter v. City of Stuart, 468 So.2d 955 (Fla. 1985), Reddish v. Smith, 468 So.2d 929 (Fla. 1985), and Duvall v. City of Cape Coral, 468 So.2d 961 (Fla. 1985).

The dissent added that the four new categories of government functions and activities the majority created in Trianon Park:

… can only add confusion to an already confused area of the law. The four categories are: (I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens. The majority concludes there is no common law duty of care with respect to categories I and II and the statutory waiver of sovereign immunity did not create a new duty of care but that there is a common law duty of care with respect to categories III and IV. See majority op. at 919-921. If the state cannot be liable in the first two categories because of an absence of common law duty, but may be liable in the last two categories because of the presence of a common law duty, then it logically follows that there is no sovereign immunity for any of the four categories. Duty or lack of duty appears to be the distinguishing feature. This raises the question of whether Commercial Carrier and its progeny survive. Are the first two categories exclusively discretionary and planning level activities and the last two categories exclusively nondiscretionary and operational level activities? Obviously not. Is Commercial Carrier grounded on the separation of powers doctrine and sovereign immunity or has the majority abandoned it and transferred the question to one of traditional tort law duty? So far as I can tell, the categories are simply added on to the Evangelical Brethren, discretionary, operational, planning, and police power tests. I note that all four categories are exercises of the police power, that all four are discretionary, that all four might be either operational or planning, and that the separation of powers doctrine is used as the test in all four for determining whether there exists a common law duty on the part of government to its tort victims.

In short, according to the dissent:

We have truly created a formidable mountain of tests and case law under which the government is sovereignly immune and/or nonliable in all but the rarest of cases. Despite the constitutional and statutory provisions which unequivocally waive sovereign immunity, the majority insists this is not so. I respectfully dissent.

The Status of Trianon Park

Interestingly, it appears that Trianon Park—which is a very 1980s-style opinion—remains goods law. While I do not always agree with courts’ modern trend toward permitting more and more claims asserted by plaintiffs to survive, Trianon Park featured two strong dissents pointing out that the legislature clearly intended to essentially waive sovereign immunity. It appears that the dissents have a strong argument that the majority’s confusing Trianon Park opinion improperly encroached on the legislative power.

One reason Trianon Park remains good law might be that, as the dissents pointed out, it is confusing and difficult to understand or apply. It is a word salad that can be interpreted in a variety of ways in any given case. In any event, the only negative treatment of the case is the Haver “declined to extend” opinion of the Fourth DCA in 2021, which itself was quashed the next year by the Florida Supreme Court. See Haver v. City of W. Palm Beach, Inc., 298 So. 3d 647 (Fla. 4th DCA 2020) (holding separation of powers doctrine does not preclude a plaintiff from bringing an equitable enforcement action against a city to direct enforcement of zoning codes if plaintiff can show some special damage from an alleged zoning violation), decision quashed, cause remanded, 330 So. 3d 860 (Fla. 2021); City of W. Palm Beach, Inc. v. Haver, 330 So. 3d 860 (Fla. 2021) (quashing 298 So. 3d 647, holding injunctive relief is not available to compel a city to enforce a zoning ordinance against a third party).

The Haver case is a fascinating one that will be the subject of a future blog post on this website.

What About Assumption of Risk or Waiver?

If the modern view allows a traditional tort law analysis and there is any chance of successfully maintaining a suit against a municipal corporation that chooses to contest liability—rejecting the Trianon Park dissenters’ view that the court had wrongly overruled the legislature’s attempt to essentially waive sovereign immunity broadly—what is the result? If the government can be liable where a private citizen would be liable, what is the analysis?

With all apologies and all due respect to the deceased and their families, what would classic common law say about the plaintiffs’ right to recover in the Champlain Towers South case, other than from their own first-party property insurers? Regarding all claims asserted against third-party defendants who were alleged to have been liable for negligence (e.g., the neighboring condo that allegedly caused vibrations while doing work, various engineering and architecture firms, the condo association’s law firm, pool maintenance vendors, roofing contractors that had done patch jobs, inspectors who failed to sound the alarm, etc.), what about the defenses of notice, assumption of risk, waiver, and related theories? Investigations have revealed that the building had visible problems from the start (noticed since back in the 1980s), such as water dripping in the underground garage, below the pool deck, and columns in the garage leaning. As this author described it:

Other amenities included saunas, valet parking and a heated pool; the pool would later reveal telltale clues as to the root causes of the collapse.

As the building’s luster wore off, distressful signs began appearing. Residents noticed water dripping in the underground garage, below the pool deck. Others noted that columns in the garage appeared to be leaning. During the 1990s, the Champlain Towers South’ condo board approved various assessments and certain repairs were then completed. However, the unrelenting deterioration was not addressed. In early 2018, the board began preparing for the Miami-Dade requirement that buildings nearing 40 years in age had to be inspected with all identified deficiencies corrected. The engineering firm’s report in October of that year revealed eye-opening findings; namely, that failed and/or nonexistent waterproofing below the pool deck had significantly damaged the foundational concrete slab and that many of the support columns in the garage needed immediate repair. Additionally, a deeper analysis by the same firm in 2020 found significant deterioration near the pool.

One day prior to the fateful collapse, condo owners received a sobering report that said insufficient savings existed for needed repairs. Each owner was then assessed their respective share, which ranged from $80,000 to $336,000. Payment was due one week after the collapse.

The collapse happened June 24, 2021. At the risk of sounding coldhearted, every owner who purchased a unit after about 1985 was on notice that the building had suffered from water dripping in the underground garage and severe deterioration that had not been properly addressed. There had been many complaints, failed inspections, and inadequate repair attempts. The report that the foundational concrete slab had suffered significant damage and that the support columns needed immediate repair was issued in early 2018. Perhaps tenants might not know that, but all owners should have been on notice after that date. Then there was the 2020 report. Finally, the day prior to the collapse, all owners received the notice that they had to contribute $80,000 to $336,000 for emergency repairs that were needed.

Nobody forced anyone with notice of the severe structural problems to be living there when the building collapsed. How can I say this? After all, the housing market is and has been crazy for years, including around the time of the Champlain Towers South tragedy. People cannot just move out. Where would they go? It’s financially impossible. I get it.

As I tell my clients nearly every day, however, the law is not always fair when it comes to expecting people to do things for their own safety without considering financial realities. Stated differently, the law requires things that might strike one as being ridiculous because of financial realities. For example, in a simple first-party property damages case where there is water damage and the insured alleges that the insurance company was wrong to deny coverage, unfortunately, the insured cannot live in the property during the three years the case is litigated, without doing repairs, allow mold to grow, and then sue the insurance company because mold caused physical health problems. (Some courts have wrongly allowed such a suit to proceed.). As harsh as it might sound, nobody forced the insured to live in a property infested with mold for three years. The insured had a duty to mitigate and repair the mold with his own money and/or move out, as opposed to voluntarily living with mold for three years. Lawsuits ordinarily take years to resolve. That is our justice system. The plaintiff in such a case cannot harm his own health for three years over an issue concerning only money.

Returning to Champlain Towers South, although it might sound crazy, everyone living in the building who had notice of the severe, emergency-level problems could have moved out before the collapse. Financially impossible, right? It’s outrageous for me to even write that.

In all sorts of lawsuits, it is alleged that the defendant has wronged the plaintiff. If the plaintiff is correct, the defendant will be found liable and there will be a judgment for the damages plus interest, if the case does not settle prior to a jury verdict, final judgment, and resolution of any appeals. When will the plaintiff get this justice? Perhaps three to 10 years from the date the defendant committed the wrongful act. That’s in every type of case. A plaintiff simply cannot file a lawsuit and have his day in court or expect to settle within days of filing it.

I often represent insureds in first-party property insurance cases. They allege that a covered event (such as a hurricane or a plumbing leak) damaged their property and the insurance company was wrong to deny or underpay their claim. What do I tell my clients? Whether they like it or not, the law requires them to use their own money to mitigate the damages and perform repairs. If they are right, they will get that money back with interest in three to seven years, after we win the lawsuit and survive the appeal. My clients are often incredulous. It stinks. We all know that life is not always fair.

I have a wealthy client whose condo unit was damaged by water that came from the upstairs neighbor’s sprinkler system. I counseled this very wealthy client today—actually I told him for about the fourth time since he came to me about two months ago—that if he chooses to spend $14,000 a month on rent, living in a different place while his case is litigated, without even trying to perform sufficient repairs that would allow him to move back home, I do not guarantee or promise him that I will ever recover that rent money. Without revealing too many details, my client owns a luxury condo unit that was damaged by water from the upstairs neighbors sprinkler. The neighbor had modified the sprinkler system, which led to a heavy TV wall-mounting system falling and breaking the sprinkler, flooding my client’s unit. The damages are substantial, no doubt. Unfortunately, my client’s own first-party insurance policy had a $10,000 water limit that is airtight. It covers water from the upstairs neighbor’s unit, despite my creative argument that the “cause” of the loss is actually the neighbor’s negligence or the trespass of the water, not the water. My client got about $100,000 from the condo association’s insurer. My client’s insurer is offering to pay $60,000, which is the ALE (additional living expenses) policy limit, even though arguably ALE is also controlled by the $10,000 water limit (the ALE damages are “the fruit of a poisonous tree”—the water).

Without even trying to find out whether a contractor can make the building livable for the $344,000 he has had access to since the date of loss (see below regarding rent), he chose to pay $13,000 a month rent for 12 months, and recently signed a renewal of the lease that increased the rent to $14,000 a month. In other words, he has spent $184,000 on rent so far, living in alternate housing for 14 months, while still paying the maintenance fees and electricity to keep the air conditioner running at the damaged unit. To the extent there is mold in the unit, it can be repaired for about $50,000. I estimate that the property can be repaired sufficiently for my client to move back home for perhaps $200,000. Perhaps we can prove the total property damages are $500,000. Prior to coming to me, my client was led to believe he has a $1.3 million claim by his public adjuster, and the two of them had been fantasizing about such a lottery-ticket recovery while the client paid $13,000 a month for rent for a year, instead of simply fixing the property and suing to recover what it cost to fix it.

As mentioned, the condo association’s insurer did pay my client about $100,000 and his insurer has offered to pay him $60,000. That means my client has had access to about $344,000 since the date of loss (including the money he used to pay the rent for 14 months so far). The public adjuster estimated the damages at about $1.3 million.

What’s the problem? Although a jury might find the damages are $1.3 million in a trial that might occur three or four years from now, it might find the damages are $400,000 or $500,000. By the end of two more years, under his plan, my client will have spent about $500,000 on rent. I told my client he is putting the cart before the horse on the issue of the property damages and rent (additional living expenses or “loss of use” of the property). The jury will be asked to determine the total damages in the same trial. It is likely that the jury will find that the property could have been repaired for $400,000 or less, meaning it was not reasonable for my client to spend $500,000 on rent for a different home while hoping to get $1.3 million for the property damages, without even trying to get real contractor estimates to do the repairs.

I am a holistic lawyer and I counsel clients about reality. It’s not about ego. What would I do if it were me? A bird in the hand is worth two in the bush. For the record, my client was dealing only with his public adjuster for about 14 months before he retained me. I told them both that I would not have advised the client to pay $13,000 a month rent for a year while fantasizing about getting $1.3 million any time soon.

Why am I writing this here? A related problem is that the client calls me nearly every day wanting to know if I’ve gotten him his $1 million settlement yet. Now, I’m a very aggressive trial lawyer and I am not a wimp. Any former opposing counsel who happen to be reading this will attest. But as I told my client, a $1 million—or even a $700,000—settlement in a case like this is a big number. The other side does not just say, “Oh okay, you demand $1.3 million? We’ll give you $800,000.” It’s not like buying a car or “doing a deal.” The insurance company needs to see real proof of the damages: what would it cost to hire contractors to repair the property?

Another problem: I am talking about the upstairs neighbor defendant. This is third-party liability. Apparently, he has a policy with a $300,000 liability limit. It is possible that he has a second policy with $500,000 in coverage. If so, that’s $800,000 in coverage. The neighbor has hired a good law firm and they are defending the case. I’m not afraid of them, but the neighbor has arguments. The neighbor is asserting that the condo association is the real bad guy, because it inspected the neighbor’s unit shortly before the accident happened and found nothing wrong. In any event, there is either $300,000 or $800,000 in coverage.

So I told my client that if he had come to me on day one, I would have advised him to get the floors, walls, and ceilings fixed such that the family can move back home, with the $344,000 to which he’s had access since the date of loss, as opposed to spending $184,000 on rent without even trying to do the repairs. As mentioned, my client’s insurance policy had a $10,000 water limit (client’s fault—he bought a policy that does not insure what happened, in violation of his condo docs) and $60,000 in ALE coverage. That’s because even if damages look bad (wet floors, ceilings, and walls), the issues of the cost of repair and how long repairs take are separate. Even if it would cost $800,000 to do the repairs, those repairs can be done in four to six months. My client is in danger of a finding one day by a court or jury that it certainly could have been done in less than 36 months. Why do I say that? I’m returning to my point about the unfairness of the law in this regard: the law expects the plaintiff to “endure” the damages until the justice system gives him his justice, which is three to 10 years later.

I can illustrate this principle by using a personal injury case. In the worst injury case, the plaintiff is killed. Let’s take a case where the defendant was clearly negligent. Say a semi truck driver runs a red light and runs over and kills the plaintiff. This accident happens on January X, 2024 at 8 PM. On 8 PM on January X, 2024, unfortunately, the plaintiff (and his family) have suffered the damages caused by the defendant’s negligence. Let’s say the victim is a 35-year-old, married father of five who is a brain surgeon. He might have $35 million in lost future wages alone, to say nothing of the pain and suffering and other damages to which his survivors are entitled. Let’s say it’s a $70 million case. Well, again, the family suffered those damages on day one. Nevertheless, the trial in such a case might take place in three to eight years. Or it might be litigated for three years before a settlement. During all of those days while the litigation is pending, the family has already suffered the loss.

As I told my property damage client today, a property damages case is no different. Let’s say my client is correct and it legitimately takes $1.3 million to properly do the repairs for which the neighbor is liable. Unfortunately, my client suffered those damages on day one, when the water invaded his unit. That stinks. But litigation is litigation. The defendant has a lawyer being paid by his insurance company, and they don’t just hand over $1 million or $800,000 or even $500,000 two months after we file a lawsuit, before any litigation or discovery has happened. Depositions are scheduled for next February. The case has been put on expedited track with an “aspirational” trial date of next July. As I told my client, the litigation could not be proceeding any faster. I cannot call the defendant’s lawyer and cause him to offer $1 million by yelling at him. In the meantime, the law treat the situation as my client should have done at least minimum repairs with his own money and then sued to recover what he spent with interest, said recovery to occur in three to five years.

The interesting thing is that with 99% of my clients, the law in this regard really is unfair. They simply do not have the money or access to the money needed to do the repairs. In the case I have been discussing, my client has already had access to $184,000 that he spent on rent, plus $100,000 from the condo association and $60,000 from his own insurer. An argument can be made that my client could have done the bulk of the repairs—at least enough to be able to move back home—with this $344,000. A jury might so find, at a trial that will happen in about three years. My client did not like me telling him that, but my job is to counsel and predict results, not merely advocate.

I will, of course, advocate aggressively. I’m not an engineer, contractor, or adjuster. Those types of experts will provide me the evidence on the cost of repairs. (The defendant will have opposing experts saying the repairs can be done for $200,000.) I might get a total victory. I’ve done it before. I might persuade a jury to award $1.3 million in property damages (the full public adjuster estimate) plus $500,000 for “loss of use” or “additional living expenses” plus the cost of my client still having to pay the taxes, maintenance, and electricity bill, plus $200,000 for damages to personal property. If I win, interest will be added to the judgment. Let’s say I’ll be able to collect all of that even if the defendant has a $300,000 or $800,000 policy limit for liability. That would be amazing. But as I advised my client, I certainly cannot promise such a result. I have handled about 500 of these cases. The public adjuster estimates are usually inflated. It is very possible that the jury or judge will find that my client’s real property damages are $300,000 to $500,000. Still a decent number, but not $1.3 million. As I mentioned above, if the jury or judge finds that my client could have repaired the property for $500,000 or less, then it will also find that it was not reasonable to spend over $500,000 on rent while not even trying to repair the property.

Returning the Champlain Towers South analysis, under the common law as understood by Oliver Wendall Holmes, an argument can be made that the owners had notice that the building was in a severely dangerous condition—an emergency situation. Anyone with that notice did not have to be there on the day the building collapsed. Tenants (or their families) who did not have such notice had a cause of action against the owner from whom they were renting, and the association. But I do understand that the Champlain Towers South case is a special case where it appears that all defendants were ready to pay the maximum to the highly sympathetic plaintiffs, including owners who had notice of the problems.