GARDNER v. METROPOLITAN DADE COUNTY, 374 So.2d 635 (Fla.App. 3 Dist. 1979)

ESDORN GARDNER AND ALBERTA GARDNER, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLANTS, v. METROPOLITAN DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE.

No. 78-951.District Court of Appeal of Florida, Third District.
August 21, 1979.

Appeal from Circuit Court, Dade County; Dan Satin, Judge.

Horton, Perse Ginsberg, Miami, Sadow Lynne, North Miami, for appellants.

Knight, Peters, Pickle, Niemoeller Flynn and Stephen A. Stieglitz, Stuart L. Simon, County Atty., and Mark A. Dresnick, Asst. County Atty., Miami, for appellee.

Before HAVERFIELD, C.J., and PEARSON and KEHOE, JJ.

PER CURIAM.

Esdorn and Alberta Gardner appeal an order dismissing their complaint with prejudice for negligence against Dade County.

Plaintiff Esdorn Gardner was injured as the result of an intersectional collision between the truck in which he was a passenger and another motor vehicle. Mrs. Gardner and he sued Dade County basically alleging the County was negligent in the design and maintenance of the intersection making it unsafe for vehicular traffic and that the stop sign erected at the intersection was placed so low to the ground that it was not visible to motorists entering the intersection. Dade County moved to dismiss the amended complaint for failure to state a cause of action in that there were no allegations of a special duty owed to the public generally. The trial judge dismissed the amended complaint against the County with leave to amend. Plaintiffs elected to stand on the amended complaint and the trial court dismissed the amended complaint with prejudice.

While this appeal was pending, the Supreme Court released its opinion in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010
(Fla. 1979) allowing negligence actions against the state and county for failure to properly maintain a public roadway. Accordingly, we hereby reverse the order dismissing plaintiff’s complaint with prejudice and remand the cause to the trial court to reconsider the motion to dismiss in light of the holding in the Commercial Carrier Corp. case.

Reversed and remanded.

KEHOE, J., dissents.

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