5D05-2635 Stricklandv. Dept. of Agriculture

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2635

Case Date: 02/13/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

MARCUS C. STRICKLAND, JR., Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee. ________________________________/ Opinion filed February 17, 2006 Appeal from the Circuit Court for Flagler County, Kim C. Hammond, Judge. Edwin A. Steinmeyer and Walter E. Forehand of Lewis, Longman & Walker, P.A., Tallahassee, for Appellant. C. Anthony Schoder, Jr., of Smith & Schoder, L.L.P., Daytona Beach, for Appellee. CASE NO. 5D05-2635

LAWSON, J. Strickland appeals the final summary judgment order entered against him on all counts of his complaint for damages caused to his property. Fire fighters caused the damage while attempting to extinguish one of many large fires burning out of control in Central Florida during the summer of 1998. We affirm. Stickland raises two issues on appeal. First, he claims that the trial court erred in finding the State immune from liability in tort for its fire fighting activities. With respect to

this issue, the trial court correctly applied the law. As explained in City of Daytona Beach v. Palmer, 469 So. 2d 121, 123 (Fla. 1985): "To hold a city liable for the

negligent decisions of its fire fighters would require a judge or jury to second guess fire fighters in making these decisions and would place the judicial branch in a supervisory role over basic executive branch, public protection functions in violation of the separation of powers doctrine." In Palmer, the Court very clearly held that government is immune from tort liability to individual property owners for damage resulting from the discretionary actions of fire fighters in combating fires. Id. In his second point, Strickland claims that the trial court erred in ruling that the State was not liable under the Takings Clause of the United States and Florida Constitutions, 1 for the trees, fencing and a dike that fire fighters damaged or destroyed to create a fire line on his property. However, it has long been established that the government's destruction of private property to "prevent the spreading of a fire" is not a "taking in the constitutional sense." E.g., Omnia Commercial Co., Inc. v. United States, 261 U.S. 502, 508 (1923). Therefore, "[t]o prevent the spreading of fire, property may be destroyed without compensation to the owner." Bowditch v. Boston, 101 U.S. 16 (1879); see also State Plant Bd. v. Smith, 110 So. 2d 401, 406-07 (Fla. 1959) ("When, in the exercise of the police power, the State through its agents destroys ... [property] in the path of a conflagration, it is clear that the constitutional requirement of 'just compensation' does not compel the State to reimburse the owner whose property is destroyed.").

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U. S. Const. amend. V; Art. X,

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