Bailey v. Board of County Commissioners

BLUE, Judge. A. Donald Bailey, Raymond Bailey, and Vet’s Wholesale Nursery, Inc., (collectively Bailey) appeal the dismissal with prejudice of their complaint alleging negligence and trespass against the Board of County Commissioners, Hillsborough County, Florida (Hillsborough). Although we agree with the ruling dismissing the complaint, we conclude the trial court erred in dismissing with prejudice. This court has recently decided a case involving a similar factual situation and the same defendant. See Nanz v. SWFMD and Hillsborough County, 617 So.2d 735 (2d DCA 1993). In Nanz, we reversed the dismissal of a complaint which alleged that Hillsborough County had undertaken the operation, control and maintenance of a drainage system. We determined that if Hillsborough had undertaken to provide service, it assumes the responsibility to do so with reasonable care. Having determined it is possible to state a cause of action, we hold the trial court erred in dismissing Bailey’s complaint with preju [347] dice. Accordingly, we reverse the order appealed to the extent it purports to dismiss the complaint with prejudice, and remand for further proceedings in conformance with this opinion. Reversed and remanded. THREADGILL, A.C.J., and PATTERSON, J., concur.