by Manu Leila Davidson and Michael L. Forte
Government entities commonly file motions to dismiss based on sovereign immunity. When those motions were denied, some appellate courts in times past have accepted immediate certiorari review of those orders. This practice has come to an end with the Florida Supreme Court’s ruling in Rodriguez v. Miami-Dade County, 117 So. 3d 400 (Fla. 2013).
Certiorari is an extraordinary writ that is not generally granted for review of nonfinal orders, such as those denying motions to dismiss unless it can be shown that “there is (1) a departure from the essential requirements of law (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post judgment appeal.”1 Until recently, the Third District Court of Appeal recognized an exception to that rule in the context of governmental immunity and granted certiorari review of such orders when the lack of duty and, therefore, nonliability, was the only issue.2 That rationale was based on the Florida Supreme Court’s holding in Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009), which explained that “the absence of a duty of care renders the defendant nonliable as a matter of law because his, or her or its actions are…nontortious vis-à-vis the plaintiff.”3 Therefore, in the absence of a duty of care in the context of the alleged negligence, the governmental entity cannot be liable, and whether the entity should be immune from suit need not be addressed.4 This article examines the Third District Court of Appeal’s opinion in Rodriguez, the Florida Supreme Court’s subsequent reversal of that opinion, and the practical implications of this decision.
Opinion from the Third District Court of Appeal: Miami-Dade County v. Rodriguez
In Miami-Dade County v. Rodriguez, 67 So. 3d 1213, 1216 (Fla. 3d DCA 2011), the Third District joined its sister courts and held that it would no longer grant certiorari review of orders denying motions to dismiss or denying motions for summary judgment in cases in which the sovereign denies liability based on an absence of duty. It stopped short, however, of altogether foreclosing certiorari review of such orders “in cases where immunity from suit rather than solely immunity from liability is at issue[,]” because governmental immunity springs exclusively “from the separation doctrine of separation of powers, making it improper for the judiciary to intervene in fundamental decisionmaking of the executive and legislative branches of the government.”5
In the context of this distinction, the Third District noted that those “functions of government [that] are inherent in the act of governing [remain] immune from suit” and a court lacks subject matter jurisdiction to adjudicate such a matter because sovereign immunity “means that the state has not consented to suit in its courts with regard to certain claims.”6 In Rodriguez, the court applied the police emergency exception to hold that the county was immune from suit.
The plaintiff, Jose Lazzaro Rodriguez, was shot several times by a police officer who responded to a burglary call at the plaintiff’s business. Rodriguez, after having been alerted to the call by his security company, raced to his business and exited from his vehicle wielding a gun. Police officers arrived at the scene at the same time. Officer Hernandez, one of the officers on the scene, also with his weapon drawn, ran into Rodriguez from behind. He shot and severely injured Rodriguez when Rodriguez turned to face him. Security camera footage of the incident revealed that only 13 seconds transpired between the time the officers arrived at the scene to the time of the last gun shot. Rodriguez sued the county, alleging that the officers, in particular Officer Hernandez, responded to the crime scene in a reckless manner, “violated basic police safety procedures[,] and negligently caused a situation which resulted in the use of deadly force against an innocent civilian.”7 No constitutional violations or intentional conduct were alleged.
The county moved for summary judgment, arguing that the police emergency exception barred Rodriguez’s lawsuit, because the video footage of the shooting established that Officer Hernandez shot Rodriguez in self-defense and that his decision to pull the trigger was a discretionary act, which fell within the purview of the police emergency exception. Rodriguez argued that the burglary call was not an emergency, and that the officers’ conduct created the emergency by ignoring policies and procedures. The trial court denied the motion and the county appealed. The Third District granted certiorari review because, in its opinion, the trial court’s denial meant that the county would have to try the case, which intrinsically created an imminent threat or existence of irreparable harm.
The Third District agreed with the county, relying, in part, on the definition of burglary as being a forcible felony, which it noted “by its nature — illustrated by the fact that Rodriguez himself emerged from his vehicle carrying a firearm — is a serious emergency which poses a level of danger to members of the public.”8 It concluded that the facts of the case fell within that category of cases in which the performance of governmental functions should not come under scrutiny because the police officers were responding to a serious emergency, an exception recognized by the Florida Supreme Court in City of Pinellas Park v. Brown, 604 So. 2d 1222 (Fla. 1992).
The court concluded that the officers’ decision to respond as they did should have been afforded “special deference” because “[n]o matter what choices the police officers made, someone or some group would be put at risk.”9 It, therefore, granted certiorari to preclude further prosecution of the case based on sovereign immunity. The court, however, recognized that its decision directly conflicted with other Florida appellate court decisions and certified the conflict for further review by the Florida Supreme Court.
The Florida Supreme Court Analysis: Rodriguez v. Miami-Dade County
On June 27, the Florida Supreme Court quashed the Third District’s decision and held that the county’s claim of sovereign immunity was not reviewable under a petition for writ of certiorari because there was no irreparable harm and because essential facts remained in dispute. The court also held that the Third District “erred in concluding that a ‘police emergency exception’ conferred planning-level sovereign immunity on the county in this case.”10
The precise question addressed by the Florida Supreme Court in Rodriguez was whether the Third District erred in holding that it had jurisdiction to review the trial court’s nonfinal order denying the county’s motion for summary judgment. It also considered the application of the police emergency exception to the facts of the case.
Based on its recent decisions in Citizens Property Insurance v. San Perdido Association, 104 So. 3d 344 (Fla. 2012), and Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012), the court reiterated that a writ of certiorari has an “extremely narrow” application when a trial court denies summary judgment based on sovereign immunity. Specifically, in Citizens Property Insurance, the court held that “equating the defense of a lawsuit with the type of irreparable harm necessary for the threshold decision to invoke certiorari review has the potential to eviscerate any limitations on the use of this common law writ, which has always been narrowly applied.”11
In Keck, the court held that an employee was allowed interlocutory review of an order denying summary judgment based on the employee’s claim of immunity from suit under F.S. §768.28(9)(a), in which the question turned on purely a question of law — namely, whether the employee’s conduct fell within the scope of his employment. The court, however, noted that it did not employ certiorari in Keck; rather, it asked The Florida Bar Appellate Court Rules Committee to consider whether the scope of Fla. R. App. P. 9.310(a)(3) should be expanded to include the denial of claims of immunity when the issue is purely a question of law.
Consistent with those holdings, the court held that the cost of continuing litigation, and the time and effort to defend litigation when sovereign immunity is at issue, does not give rise to the level of irreparable harm required to obtain a writ of certiorari. It also noted that the Third District failed to analyze, and it was unclear whether it even considered, if the trial court’s denial of the county’s motion for summary judgment “depart[ed] from the essential requirements of law resulting in a miscarriage of justice.”12
The court further held that the Third District misapplied the police emergency exception to grant certiorari because the circumstances of the “case did not rise to the level of invoking the narrow emergency exception because this is not the kind of situation implicating police planning-level decisions.”13 It also rejected the Third District’s sweeping statement that the court “‘created a clear exception for police action in emergency situations,’…which would create immunity from suit as a matter of law whenever police respond to an emergency[,]”14 because neither Pinellas Park nor Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989), cited by the Third District, arose from a writ of certiorari.
In reviewing its decision in Kaisner, the court pointed to a footnote in which it expressly stated that the court “would not necessarily reach the same decision if the issue involved an ‘emergency requiring swift action to prevent harm to others, albeit at the risk of harm to petitioners, because those types of decisions with a high level of urgency would be ‘entitled great deference, and may in fact reach a level of such urgency as to be considered discretionary and not operational.’”15 The court held that these comments, though dicta, demonstrate “the extremely limited exception, when the actions of the police would constitute a planning decision immune from suit rather than an operational one scrutinized under the principles of negligence.”16
The court also distinguished its decision in Pinellas Park, which concerned the deaths of three people after 20 police vehicles engaged in a 25-mile long high-speed chase. In that case, the court held that sovereign immunity did not apply because the decision to so proceed was operational, not discretionary. The court reiterated that sovereign immunity shields only those acts that are “discretionary” and not “operational” in nature. It declined to hold that the high-speed chase rose to a police emergency “because the serious emergency must be one thrust upon the police by lawbreakers or other external forces that requires them to choose between different risks posed to the public.”17 The court held that the police emergency exception does not apply when the police create the emergency “through their own negligent conduct or failure to adhere to reasonable standards of public safety.”18 The court further observed that it has not had the opportunity to decide under what factors, if any, the police emergency exception would rise to the level of a planning-level decision. In any event, it held that the Rodriguez case did not fall into the exception under Pinellas Park and Kaisner.
The court recognized that police officers are regularly exposed to precarious situations, especially when answering calls regarding crimes in progress. It declined to hold that the employer is always immune from suit arising from negligent acts because the “police emergency exception could eviscerate the waiver of sovereign immunity for negligent conduct.”19
Significance of the Rodriguez Opinion to Practitioners
The takeaway from Rodriguez is that application of sovereign immunity will rarely, if ever, serve to dispose of a case by way of a motion to dismiss or motion for summary judgment, and governmental entities may have to proceed to a full trial on the merits. The decision also clarifies that the standard to obtain certiorari review is not met simply because the party invoking this writ has to draw on its resources to defend against litigation.
In the context of a sovereign’s immunity, does this result make sense from a public policy perspective? The Florida Supreme Court has identified three main policy considerations justifying sovereign immunity. “First is the preservation of the constitutional principle of separation of powers. Second is the protection of the public treasury. Third is the maintenance of the orderly administration of government.”20 The Rodriguez opinion seems to undermine the second and third considerations and will result in the government entity incurring substantial defense costs by being forced to wait until after trial to appeal an adverse ruling on sovereign immunity. In addition — and perhaps more importantly — the entity would need to divert significant human resources away from government administration to defending itself in litigation.
It is too soon to know whether the outcome of the Rodriguez case is what the legislature had in mind when it enacted the sovereign immunity statute, F.S. §768.28. The legislature, however, has the power to address the Rodriguez opinion, at least indirectly. It could amend §768.28(1) to indicate that sovereign immunity is intended to protect the government entity not just against liability, but also against being named as a defendant. The Florida Supreme Court could one day address such an amendment by either overruling Rodriguez or amending Fla. R. App. P. 9.130 to allow for certiorari review.
In any event, Rodriguez will be the law of the land for the foreseeable future. Plaintiffs’ attorneys will like the opinion because a governmental entity’s inability to seek certiorari review will place greater pressure upon the entity to settle. On the other hand, governmental entities can push back with early case evaluations, which enable entities to resolve cases that are not worth fighting and to aggressively defend the rest.
1 Rodriguez v. Miami-Dade County, 117 So. 3d at 404 (internal quotations omitted). The authors’ firm, Rumberger, Kirk & Caldwell, filed an amicus brief on behalf of the Florida Police Chiefs Association in support of the respondent in this case.
2 Miami-Dade County v. Rodriguez, 67 So. 3d 1213, 1215-1216 (Fla. 3d DCA 2011).
3 Id. at 1215 (emphasis in original).
5 Id. (internal citations omitted).
6 Id. at 1217.
10 Rodriguez v. Miami-Dade County, 117 So. 3d at 406.
11 Id. at 405 (quoting Citizens Prop. Ins. Corp., 104 So. 3d at 356).
12 Id. at 406 (quoting Nader v. Fla. Dep’t of Highway Safety and Motor Vehicles, 87 So. 3d 712, 725 (Fla. 2012)).
14 Id. (quoting Rodriguez, 67 So. 3d at 1221).
15 Id. at 407 (quoting Kaisner, 543 So. 2d at 738 n. 3) (emphasis in original).
17 Id. (quoting Pinellas Park, 604 So. 2d at 1227).
18 Id. at 408.
20 Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005) (citations omitted).
Manu Leila Davidson is of counsel at the New York law firm of Braverman Greenspun, P.C., where her practice focuses on representation of condominium and cooperative boards in a variety of disputes, including shareholder disputes, election issues, construction defect, defamation, and civil rights claims. Her practice also includes professional liability defense, product liability defense, insurance coverage and bad faith under a variety of coverage forms, and appeals. She received her J.D. from Nova Southeastern University in 2003.
Michael L. Forte is a partner in the Tampa office of Rumberger, Kirk & Caldwell, P.A. He practices in the areas of government, retail and hospitality, product liability, and construction. He graduated from Stetson University College of Law in 2002.
This article is submitted on behalf of the City, County and Local Government Section, Hans Ottinot, Sr., chair, and David Miller, editor.