Daniele v. BOARD OF COUNTY COMMR. , 375 So. 2d 1 ( 1979 )

375 So. 2d 1 (1979)

Ralph DANIELE and Mildred Daniele, Appellants,
v.
BOARD OF COUNTY COMMISSIONERS, PALM BEACH COUNTY and Nationwide Mutual Insurance Co., a Foreign Corporation, Appellees.

No. 78-106.

District Court of Appeal of Florida, Fourth District.

October 3, 1979.

Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellants.

Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees.

DOWNEY, Chief Judge.

The Danieles sued the Board of County Commissioners of Palm Beach County and its insurance carrier for damages arising out of an incident which occurred in May 1976 wherein Mr. Daniele was injured when his bicycle hit a hole in a parking lot at John Prince Park in Palm Beach County. The complaint alleged that the county owed the Danieles a duty to maintain said park and parking lot in a reasonably safe condition, which it failed to do; that the county failed to inspect the parking lot and failed to warn the public of defects it knew, or should have known, existed there.

The trial judge dismissed the complaint because he found "the complaint alleges the operation and maintenance of a governmental function... ." This was error.

It appears to us that the waiver of sovereign immunity contained in Section 768.28, Florida Statutes (1975), renders the county subject to suit for the type of negligence alleged in this case. See Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010 (Fla. 1979).^[1]

Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

CROSS, SPENCER C., and DAUKSCH, JAMES C., Jr., Associate Judges, concur.

NOTES

[1] This case, which clarified the law on the effect of the statute waiving sovereign immunity, was not available to the trial judge when he dismissed this complaint.