Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CITY OF TAMPA, Appellant, v. DWAYNE FREDRICK and PAULA FREDRICK, Appellees. No. 2D22-4031 August 18, 2023 Appeal from the Circuit Court for Hillsborough County; Christopher C. Nash, Judge. Andrea Zelman, City Attorney, City of Tampa, and Toyin K. Aina- Hargrett, Sr. Assistant City Attorney, Tampa, for Appellant. Scott W. Anderson of Johnson Daboll Anderson, PLLC, Tampa, for Appellees. SLEET, Chief Judge. The City of Tampa appeals the nonfinal order denying its motion to dismiss Dwayne and Paula Fredrick's action for negligence and loss of consortium. On appeal, the City argues that the trial court erred in denying the motion because the Fredricks failed to sufficiently allege that the City had a duty to warn of a specific danger to cyclists and that therefore it is sovereignly immune from the suit. Because the Fredricks alleged a specific danger created by the City for which the City had a duty to warn, we affirm. The underlying lawsuit stemmed from an incident in which Mr. Fredrick was struck by a motor vehicle while cycling in a bike lane between the traffic lanes of West Cleveland Street in Tampa. After the Fredricks filed the operative second amended complaint, the City moved to dismiss, arguing that the Fredricks failed to state a cause of action in that the Fredricks challenged the design of the bike lane, which would be a planning-level decision for which the City is immune from suit. The trial court held a hearing on the motion and ultimately denied it, determining that the second amended complaint contained adequate allegations to state a cause of action. The City now appeals.1 Sovereign immunity is an affirmative defense that is not properly asserted in a motion to dismiss unless "the complaint itself conclusively establishes its applicability." Sierra v. Associated Marine Insts., Inc., 850 So. 2d 582, 590 (Fla. 2d DCA 2003); see also Miami-Dade County v. Perez, 343 So. 3d 175, 177 n.2 (Fla. 3d DCA 2022) (same); cf. U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003) ("Generally, [affirmative defenses] are not properly considered on a motion to dismiss. There is, however, an exception to this general prohibition when the face of the complaint is itself sufficient to demonstrate the existence of the defense." (citations omitted)). The reviewing court reviews the issue de novo and takes the facts as set forth in the operative complaint as true. Gualtieri v. Pownall, 346 So. 3d 84, 1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(F)(iii) (authorizing appellate review of nonfinal orders that "deny a motion that . . . asserts entitlement to sovereign immunity"). 2 87 (Fla. 2d DCA 2022); see also Fla. Off. of Fin. Regul. v. Grippa, 332 So. 3d 42, 43 (Fla. 1st DCA 2021) ("A trial court's ruling on a motion to dismiss a complaint based on whether a claim is barred under the doctrine of sovereign immunity is a question of law; thus, the appropriate standard of review is de novo." (quoting DeSantis v. Geffin, 284 So. 3d 599, 602 (Fla. 1st DCA 2019)). In considering a motion to dismiss, the trial court is bound by the four corners of the complaint, and it must accept as true the well-pled allegations of the complaint and "consider those allegations in the light most favorable to the plaintiff[]." Chi. Title Ins. Co. v. Alday-Donalson Title Co. of Fla., 832 So. 2d 810, 815 (Fla. 2d DCA 2002) (quoting Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 734-35 (Fla. 2002)). Liability cannot be imposed when the government exercises its discretionary, planning-level function; however, operational-level decisions are not so immune. Dep't of Transp. v. Neilson, 419 So. 2d 1071, 1075 (Fla. 1982); see also Wallace v. Dean, 3 So. 3d 1035, 1053 (Fla. 2009) ("[T]he separation-of-powers provision present in article II, section 3 of the Florida Constitution requires that 'certain [quasi- legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.' " (quoting Com. Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1020 (Fla. 1979))). Here, while the City's actual design and construction of the bike lane may have been a planning level decision immune from liability, if the execution of that planning level decision created a dangerous condition, the City's failure to warn users of the bike lane about that dangerous condition would be an operational function that is not immune from liability. See Hyde v. Fla. Dep't. of Transp., 452 So. 2d 1109, 1111 (Fla. 2d DCA 1984) ("When a governmental entity creates a 3 known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational level arises to warn the public of, or protect the public from, the known danger." (citing City of St. Petersburg v. Collom, 419 So. 2d 1082, 1086-87 (Fla. 1982))). "The failure to so warn of a known danger is . . . a negligent omission at the operational level of government and cannot reasonably be argued to be within the judgmental, planning-level sphere." Neilson, 419 So. 2d at 1078. The City contends that the Fredricks' claim is based solely upon the City's discretionary, planning-level decision to design and build the bike lane within the traffic lanes of West Cleveland Street. However, at this stage of the pleadings and accepting as true the well-pled allegations of the Fredricks' second amended complaint, the causes of action alleged are not premised upon the City's planning-level decisions. Rather, in their negligence count against the City, the Fredricks allege that the City failed to execute the operational function of warning citizens of a dangerous condition it created. They also allege that the City created a dangerous condition by designing the bike lane on West Cleveland Street in a way that requires cyclists to cross active traffic lanes with vehicles approaching from the rear in order to remain in the designated bike lane. The Fredricks further allege that the City knew or should have known of this dangerous condition and that it failed to warn of its inherent danger. Based upon these allegations, "[t]he failure to fulfill this operational-level duty is . . . a basis for an action against the governmental entity." Collom, 419 So. 2d at 1083. The Fredricks' second amended complaint is sufficient to open the courthouse door at the motion to dismiss stage because the facts pleaded do not conclusively establish that the claims are barred as a matter of law. See Sierra, 850 So. 2d at 590. 4 Affirmed. VILLANTI, J., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concur. Opinion subject to revision prior to official publication. 5