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Governmental Tort Liability in Florida: A Tangled Web

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In Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010 (1979), the Florida Supreme Court sought to define the scope of the waiver of governmental tort immunity contemplated by F.S. §768.28, but that decision failed to provide a clear framework within which to analyze and identify governmental conduct that remains entitled to protection from tort liability. Driven largely by competing ideologies on the court, the body of government tort law that has developed since Commercial Carrier has become a tangled web of incomprehensible and inconsistent principles, exceptions, and exceptions to the exceptions.

This article will examine the reasons governmental immunity law in Florida has become so confused and will compare and contrast Florida law to that in the jurisdictions from which Florida derived its implied discretionary-function immunity and to federal law construing the Federal Tort Claims Act (FTCA), the model for the Florida waiver of immunity statute. The article will trace the development of governmental immunity from the Commercial Carrier decision to the present and demonstrate that whether Florida government enjoys legal protection from tort liability has been largely dependent upon which ideology has dominated the Florida Supreme Court. Lastly, conclusions will be drawn about what should be done to clarify the status of governmental protection from tort liability in Florida.

Common Law Government Immunity

The state and its subdivisions enjoyed absolute immunity from tort liability prior to the enactment of the waiver of immunity statute in 1973.1 However, municipalities had only limited tort immunities or exceptions to liability that were the subject of a well-developed body of law at the time §768.28 went into effect.2 The courts developed an analysis distinguishing between “governmental” and “proprietary” functions of municipal government, applying tort immunity only as to the former unless there was some special relationship between the government employee or agent and the injured party.3 This became known as the “ Modlin doctrine.”

Waiver of Government Immunity and the Commercial Carrier Decision

Among the interesting ironies of Commercial Carrier is that several counties and the state, rather than municipalities, were claiming protection from liability based on the argument that they were entitled to the immunity applied to municipal corporations involved in governmental functions prior to the enactment of §768.28.4 As defendants in the trial court, the governments successfully moved to dismiss the negligence claims against them for failing to maintain certain traffic control measures allegedly resulting in traffic accidents.5 The motions argued that the governments were entitled to immunity under the Modlin doctrine because that immunity survived the passage of the waiver statute.

In rejecting the argument, the Florida Supreme Court found that the Modlin doctrine did not survive the enactment of §768.28 because “[p]redicating liability upon the ‘governmental-proprietary’ and ‘special duty-general duty’ analyses has drawn severe criticism from numerous courts and commentators. Consequently, we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through the enactment of section 768.28, Florida Statutes (1975).”6

However, the court announced that despite the absence of an express discretionary-function exception as in the FTCA, separation of powers demanded that “certain areas of governmental conduct remain immune from scrutiny by judge or jury as to the wisdom of that conduct.”7 The court found examples of such implied discretionary-function immunity predicated upon the concept of separation of powers in New York and Washington state. Washington law provided a “preliminary test” which the Commercial Carrier court “commend[ed]” to use by the lower courts in Florida seeking to identify discretionary functions of government.8

The Commercial Carrier court also adopted the analysis of a California case, Johnson v. State, 447 P.2d 352 (1968), which involved being “sensitive” to whether the act, omission or decision involved discretion, but eschewing consideration of the actual meaning (“semantics”) or definition of the word “discretion.”9 Thus, the Commercial Carrier court began its analysis by asking itself a series of questions about the challenged governmental “act, omission or decision” while being “sensitive” to whether the act, omission or decision involved “discretion.”10 This unusual approach was to be undertaken on a “case-by-case basis” with the courts analyzing whether the peculiar facts before them called for application of tort immunity in order to preserve the notion of separation of powers.11

Justice Overton, joined by Justice Boyd, dissented, complaining that the express language of §768.28 was contrary to the majority opinion because the statute provides that the government is to be liable “under circumstances in which the state or such agency or subdivision, if a private person, would be liable” and that private persons do not engage in uniquely governmental activities such as traffic signal and sign maintenance—the activity challenged in Commercial Carrier.12 He also criticized the majority’s reliance on seemingly conflicting federal opinions as authority for its analysis distinguishing between operational and planning-level functions, the latter of which were immune.13

A line of federal cases not considered in Commercial Carrier support the conclusion that the language of the waiver statute may insulate the government from liability, but not because the conduct is uniquely governmental.14 In the federal cases, the language of the FTCA “in the same manner and to the same extent as a private individual under like circumstances” is construed to impose a requirement that for the claim to be cognizable “a private person would be responsible for similar negligence under the laws of the state where the acts occurred.”15 If there would be no such responsibility of a private person for similar negligence, the government could not be held liable.16 Thus, the initial issue for the federal courts confronted with a tort claim against the federal government is not whether the conduct was “uniquely governmental,” but whether there is a cause of action against the government “comparable” to a cause of action against a private citizen recognized in the jurisdiction where the tort occurred, i.e., whether there is a “private analog” under state law.17 This inquiry, which is crucial to cognizability of a claim under the FTCA, has been ignored in Florida. However, the “private analog” analysis has been applied by at least one other state supreme court with statutory language, which like Florida’s statute, is modeled after the FTCA.18

The nebulous new implied discretionary-function immunity, which the majority in Commercial Carrier admitted would be difficult to apply, began to quickly transmogrify itself to the particular ideological bent of a Florida Supreme Court, which changed with successive, shifting new majorities. Within two years of the Commercial Carrier decision, the author of that opinion would find himself dissenting and criticizing governmental tort immunity as “an enigma shrouded in mystery” in Cauley v. City of Jacksonville, 403 So. 2d 379, 387 (Fla. 1981). The transformation of the law of governmental immunity has continued to this day as the Florida Supreme Court has changed in composition, modified prior holdings, and spun ever more fine distinctions and exceptions into the tangled web of this law.

Evolution of Government Immunity After Commercial Carrier —Spinning the Web

With the departure of Justice Hatchett from the Florida Supreme Court and the addition of Justice MacDonald, a new majority emerged and ideological division evinced itself in Cauley v. City of Jacksonville, 403 So. 2d 379 (Fla. 1981), in which Justice Overton authored the opinion upholding the cap on government tort liability under §768.28(5) against constitutional challenge and applying it to a judgment against the city. Justice Sundberg, who had led the majority in the Commercial Carrier opinion, became a dissenter, joined by Justice Atkins. In Cauley they argued that the same waiver statute, which was determined to abrogate the municipal immunity invoked by the county and state in Commercial Carrier, did not apply to municipalities at all.19

The year after Cauley, in a group of immunity cases which have become known as the “ Neilson trilogy,” authored by Justice Overton, the court held that, in general, government would not be liable for defects inherent in the overall design of a public improvement, such as a public road system, unless the entity, by the design, created a known dangerous condition which was not apparent to one who may be injured.20 Despite the exception for “known dangerous conditions,” the decisions could be generally regarded as favorable to government.21

The majority opinion in Neilson relegated the “preliminary test” from Commercial Carrier to footnote status, and the “sensitivity” analysis of Johnson, with its eschewal of semantics, was not mentioned. Justice Sundberg, again dissenting, lamented: “[T]he irreconcilable results among the several district courts of appeal are not harmonized, but rather the confusion is compounded. The enigma is now shrouded in mystery.”22

The majority in Neilson continued to represent the prevailing view in the early 1980s in a series of cases which generally found governmental immunity while focusing on tort concepts such as open and obvious dangers and duties.23 In Harrison v. Escambia County School Board, 434 So.2d 316 n.5 (Fla. 1983), although discussing governmental discretionary-function immunity for the determination of where to locate school bus stops, there was a suggestion that a duty of care may be lacking as to this type of government activity.

The focus on absence of duty became more significant in the case of Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), where the court radically modified its analysis of governmental tort liability issues. In an effort to give the lower courts something more to work with than broad, vague questions and a case-by-case “sensitivity” analysis, the court divided the universe of governmental functions into four categories. The existence or nonexistence of a duty of care was dependent upon the category into which the function fit. The categories were (I) legislative, permitting, licensing, and executive officer functions for which no common law or statutory duty existed; (II) enforcement of the laws and protection of the public safety for which generally no duty of care existed; (III) capital improvement and property control functions for which the duty is the same as a private individual; and (IV) providing professional, educational, and general services for which there is a duty of care.24 The specific activity involved in Trianon, building inspection to enforce compliance with the building code, was found to be protected from liability as a category II function.

Although Florida’s appellate courts did not employ the term “public duty doctrine” until Seguine v. City of Miami, 627 So. 2d 14 (Fla. 3d DCA 1993), the roots of the doctrine have a long history in Florida municipal corporations law.25 The rationale behind this doctrine was rejected in Commercial Carrier, but Justice Overton, a dissenter in that case, revived the rationale in Trianon, distinguishing Commercial Carrier by noting:

It is important to note at the outset that this court’s decision in Commercial Carrier, in rejecting the general duty/special duty dichotomy contained in Modlin v. City of Miami Beach, did not discuss or consider conduct for which there would have been no underlying common law duty upon which to establish tort liability in the absence of sovereign immunity. Rather, we were dealing with a narrow factual situation in which there was a clear common law duty absent sovereign immunity.26

The public duty doctrine is predicated upon the notion that “a municipality and its agents are deemed to act for the benefit of the general public rather than specific individuals. Thus, the municipality or its agents may not be held liable to specific individuals for the failure to furnish them with public protection.”27 It is a discrete doctrine protecting governments from tort liability in the majority of states, including the two jurisdictions—Washington state and New York—from which the Commercial Carrier court borrowed the concept of an implied discretionary-function immunity based on separation of powers.28 The public duty doctrine does not create an immunity because it is predicated on the absence of a duty, an element of traditional negligence, but like immunity, it has the effect of avoiding tort liability.29

The Trianon court was sharply divided four to three with Justices Overton, Boyd, Alderman, and MacDonald in the majority and Ehrlich, Shaw, and Adkins dissenting. Justice Shaw, who believed that the “majority opinion commingles the separate issues of sovereign immunity and duty under traditional tort law,”30 wrote a lengthy and scathing dissent in the companion case of Everton v. Willard, 468 So. 2d 936 (Fla. 1985), in which the court held that a deputy sheriff’s decision not to arrest a motorist on intoxicated driving charges, which resulted in a subsequent fatal accident, was immune. Justice Shaw’s criticism of the Trianon majority’s commingling of discretionary-function immunity and the public duty doctrine is justified to a degree in that the majority refers to the “lack of a common law duty for exercising a discretionary police power function.”31

But Trianon and the “companion” cases Everton, Reddish v. Smith, 468 So. 2d 929 (Fla. 1985) (prisoner transfer decision protected from liability), Carter v. City of Stuart, 468 So. 2d 955 (Fla. 1985) (ordinance enforcement protected), and City of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985) (firefighting decisions protected) would be a hollow victory for the proponents of shielding some government conduct from tort liability in Florida. A dramatic shift was about to occur in the makeup of the court, and yet another group of dissenters was about to become the majority. This “new majority” would return to the Commercial Carrier rationale and recognize implied discretionary-function immunity as the only immunity surviving the enactment of the waiver statute. It would reject Trianon’s revival of the public duty doctrine and devise a way to circumvent the Trianon decision without actually overruling it, just as Trianon was perceived to have done to Commercial Carrier.

The addition of Justice Barkett to the court in 1986 signaled the emergence of the “new majority” and the beginning of a series of cases which revived the Commercial Carrier “sensitivity” analysis, while minimizing the Trianon element of absence of common law duty of care. This “new majority” would decide a series of cases almost unrelentingly unfavorable to government. The first of these was Avallone v. Board of County Commissioners Citrus County, 493 So. 2d 1002 (Fla. 1986), in which the court held that while a governmental entity has the “discretionary authority” to operate or not to operate a swimming facility, once a decision to operate the facility is made, it must be operated safely just like a private individual under like circumstances. Thus, the county could be held liable for alleged negligent operation of the facility resulting in a swimmer’s death as that conduct implemented the decision to operate the facility.32

The next three per curiam opinions reflected the “new majority’s” distaste for the Trianon “categories and duties” analysis. With scant mention of Trianon, the court found no immunity for operating another swimming area in Butler v. Sarasota County, 501 So. 2d 579 (Fla. 1986), deactivating and blocking a left turn lane on a roadway in Palm Beach County Board of Commissioners v. Salas, 511 So. 2d 544 (Fla. 1987), and allowing an intersection to become overgrown with foliage in Bailey Drainage District v. Stark, 526 So. 2d 678 (Fla. 1988).

However, it was not until State Department of Health & Rehabilitative Services v. Yamuni, 529 So. 2d 258 (Fla. 1989), that Justice Shaw, speaking for the 4-to-3 majority, dropped any pretense that it would attach precedential value to the decisions in the Trianon and Everton cases, calling the categories of governmental functions discussed therein “a rough guide to the type of activities which are either immune or not immune.”33 The Yamuni court also receded from the “suggestion. . . that there has been no waiver of immunity for activities performed only by the government and not private persons.”34

In Yamuni the court found the state HRS liable for “negligently failing to detect child abuse.”35 It further declared that the only government activities for which there is no waiver of immunity are basic policy-making decisions at the planning level.36 This was a radical conclusion because not even the Commercial Carrier opinion limited immunity to governmental decisions only.37

The majority in Yamuni pays lip service to the classification of governmental functions under Trianon, but in its eagerness to find a duty on the part of the government to “adequately investigate and detect child abuse,” classifies the function not as law enforcement or protection of public safety or welfare, but as “providing professional, educational and general services for the health and welfare of the public.”38 As the dissenters, and particularly Justice Grimes point out, this classification is patently wrong and inconsistent with the Trianon classification analysis.39 Yamuni has been the subject of deserved criticism, but the criticism has been ignored by the “new majority.”40

In Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989), the “new majority,” led by Justice Barkett, again found liability where a police officer told a motorist not to approach the police car after a traffic stop. The motorist then positioned himself between the police car and his truck, and the police car was subsequently struck by a third vehicle and driven into the motorist. The allegation was that the police had “breached a duty of care by failing to use proper police procedure in the stop.”41 The court found sufficient “custody,” control or “detention” by the police to give rise to a common law duty of care and then found that “the decision as to where a motorist will be ordered to stand” did not involve “the type of discretion that needs to be insulated from suit.”42

The analysis of Kaisner, which involved some reshaping of the facts and allegations, has had a lasting impact, not only on governmental immunity law, but on Florida negligence law in general because it is the court’s first express adoption of the notion that “[w]here a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.”43 holding that the duty element of negligence is satisfied where the defendant’s conduct creates a “ foreseeable zone of risk,” the majority deftly skirts the issue under the Trianon analysis of whether there was a common law duty of care at all. As Justice McDonald points out in his dissent, “This is not the foreseeability upon which the law of negligence is based.”44 He could not agree that the conduct of the police either produced a duty to protect the driver from the negligent act of a third-party driver or that there was police conduct which exposed the plaintiff to an unreasonable risk of harm.45

Bypassing Immunity—Scrutinizing Government Trapped in the Web

The principle of “foreseeable zone of risk” contained in Kaisner has now become pervasive in Florida negligence law.46 Since virtually every activity may be viewed as creating some “foreseeable zone of risk,” the first step in the Trianon immunity analysis, determining whether a common law duty existed, is effectively bypassed. This “foreseeable zone of risk” duty analysis bears little resemblance to the “policy-based” duty analysis recognized by legal commentators and employed by other courts including some Florida courts.47 Nevertheless, there has been no Florida Supreme Court case since Kaisner in which no duty was found to exist under the “foreseeable zone of risk” analysis. Furthermore, the court no longer addresses whether common law recognized a duty for police power functions of government as Trianon required.

In City of Pinellas Park v. Brown, 604 So. 2d 1222 (Fla. 1992), Justices Shaw and Barkett joined with Justice Kogan in an opinion concluding that police participating in a vehicle pursuit owed a duty to third-party motorists injured in a collision with the fleeing criminal because participating in a “high speed chase involving a large number of vehicles on a public thoroughfare is likely to result in injury to a foreseeable victim.”48 The court was again deeply divided. Justice Overton’s dissent, in which Justice McDonald joined, expressed frustration that the majority misinterpreted an earlier decision in City of Miami v. Horne, 198 So. 2d 10 (Fla. 1967), involving a police pursuit in which recovery was not allowed. He stated that the majority would be “making the governmental entity pay for damages caused by a criminal offender trying to avoid apprehension.”49 Justice Harding also dissented separately stating that the Horne decision was controlling and that the majority “draws a line too obscure for an officer to clearly know whether to pursue or to cease pursuit.”50 Even the “swing” vote concurrence of Justice Grimes expressed reservations that this was a “close case because it involves competing public policy considerations.”51

In Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999), a much less divided court, led by Justice Wells with Justice Pariente replacing McDonald, continued its scrutiny of law enforcement activity. The court found that sheriff’s deputies owed a duty to passengers of a vehicle deputies stopped for DUI where they “placed the passengers in danger” by directing an allegedly intoxicated passenger to drive to a nearby convenience store and call his parents. The passenger allowed to drive was not in police custody and by calling his parents, vehicle impoundment would be avoided. After going to the convenience store, he proceeded to drive off and subsequently had an accident, killing two other rear seat passengers. Despite those facts, the court had no difficulty finding a duty under its simple “foreseeable zone of risk” analysis, thereby avoiding immunity, by simply casting the allegations as acting “negligently during a roadside detention” rather than a negligent decision not to arrest, insulated from liability in Everton.52 Justice Overton was the lone dissent, pointing out that “the practical effect is that now officers will believe they must in every instance, impound every car where the driver is taken into custody even though the passengers are not in the custody and control of the officers.”53

Given the fact that the Florida Supreme Court has found no governmental liability to exist in only three cases out of the 17 addressed in the last 17 years, it was not surprising that in its latest decision on the issue, the court again subjects the state to tort liability for a swimming injury as owner of a beach which it chose not to designate as a public swimming area but which it allowed a city to manage and operate for that purpose.54 ( See Appendix C.)

What Florida Should Do to Untangle the Immunity Web

The Florida Supreme Court should put aside the ideological one-upmanship which has characterized its treatment of the governmental tort law following the enactment of §768.28. Lower appellate courts are struggling to apply the incomprehensible law in this area. There are few activities which state and local government can have confidence will not be subject to court scrutiny and potential liability. The court needs to stabilize the law in this area by consistently applying a coherent, meaningful analysis to identify those areas of government conduct which should be shielded from tort liability in light of the language of the statute itself, federal and other state decisions interpreting similar statutory language, whether a common law duty attends the government conduct, and the constitutional provision on separation of powers.

In stabilizing and clarifying the law, the court should not limit itself to the nebulous and unwieldy analysis it has created to identify implied discretionary-function immunity, but should follow the federal decisions application of the “private analog” test to first determine whether the claim is cognizable. The public duty doctrine, followed in the majority of states and having roots in Florida law, both before and after the enactment of the state waiver statute, should be applied, employing a meaningful analysis of whether a common law duty of care existed for the government function in question in light of policy considerations—not simply whether government conduct “creates a foreseeable zone of risk.”

If the court does not take the necessary remedial measures, the legislature should enact express exemptions to the waiver statute, as legislatures have done in other states, and expressly define government conduct which will be shielded from ever-expanding judicial scrutiny.55 The legislature must ensure that separation does not become usurpation of powers. As one appeals court recently remarked: “Judicial policy-making is not a freewheeling exercise.”56 In the case of governmental tort liability in Florida, unfortunately, that is just what it has become, as amply demonstrated by the last several decades of case law. q

1 Gerald T. Wetherington & Donald Pollock, Tort Suits Against Governmental Entities in Florida , 44 Fla. L. Rev. 1, 5 (1992).

2 Commercial Carrier , 371 So. 2d at 1015.

3 See, e.g. , Modlin v. City of Miami Beach , 201 So. 2d 70 (Fla. 1967).

4 Commercial Carrier , 371 So. 2d at 1015.

5 Id. at 1013–1014.

6 Id. at 1016. Paradoxically, Justice Sundberg’s dissent in Cauley v. City of Jacksonville , 403 So. 2d 379, 387 (Fla. 1981) argues §768.28 “did not. . . totally abrogate the rules regarding municipal immunity.”

7 Id. at 1017–18, citing Dalehite v. United States , 346 U.S. 15, 57 (1953) (Jackson, J., dissenting), and the proposition “[o]f course, it is not a tort for government to govern”; but see Carlile v. Game & Fresh Water Fish Comm’n , 354 So. 2d 362, 364 (Fla. 1977), “implication cannot be substituted for clear expression” in construing §768.28.

8 Id. at 1022.

9 Id.

10 Id. at 1019.

11 Id.

12 Id. at 1023.

13 Id.

14 Rayonier, Inc. v. United States , 352 U.S. 315 (1957) ; Sea Air Shuttle Corp. v. U.S. , 112 F.3d 532, 537 (1st Cir. 1997); Nationwide Mut. Ins. Co. v. U.S. , 3 F.3d 1392, 1396 (10th Cir. 1993); Buck v. Eagle-Picher Industries, Inc. , 927 F.2d 445, 452 (9th Cir. 1991).

15 Goodman v. U.S ., 298 F.3d 1048, 1054 n.6 (9th Cir. 2002).

16 Kleer v. U.S. , 761 F.2d 1492, 1494-1495 (11th Cir. 1985), in which the court performed analysis to determine private responsibility first then applied the result to the United States.

17 Dorking Genetics v. U.S. , 76 F.3d 1261, 1266 (2d Cir. 1996), for statement of principle supported by Rayonier , 350 U.S. at 319 and explanation of how test was applied in Indian Towing Co. v. U.S. , 350 U.S. 61, 65–69 (1955).

18 See Denis Bail Bonds, Inc. v. State , 622 A.2d 495 (Vt. 1998). This case, citing W. Prosser & Keeton, The Law of Torts §53 at p. 358 (5th ed. 1984), also explains why the existence of a governmental duty involves policy considerations which cannot be addressed in the superficial “foreseeable zone of risk” analysis Florida has adopted.

19 Cauley , 403 So. 2d at 387–389.

20 Dep’t of Transp. v. Neilson , 419 So. 2d 1071 (Fla. 1982); Ingham v. State Dep’t of Transp. , 419 So. 2d 1082 (Fla. 1982); City of St. Petersburg v. Collom , 419 So. 2d 1082 (Fla. 1982).

21 See Collom, 419 So. 2d at 1086.

22 Id . at 1079.

23 Harrison v. Escambia County Sch. Bd. , 434 So. 2d 316 (Fla. 1983); Perez v. Dep’t of Transp. , 435 So. 2d 830 (Fla. 1983); Payne v. Broward County , 461 So. 2d 63 (Fla. 1984).

24 Trianon Park Condominium Ass’n v. City of Hialeah , 468 So. 2d 912, 919 (Fla. 1985).

25 See Modlin v. City of Miami Beach , 201 So. 2d 70 (Fla. 1967).

26 Trianon , 468 So. 2d at 918. The Florida Supreme Court unanimously reaffirmed its adherence to the public duty doctrine in Vann v. Dep’t of Corrections , 662 So. 2d 339 (Fla. 1995). The Third District Court of Appeal in Seguine v. City of Miami , 627 So. 2d 14 (Fla. 3d DCA 1993), the Fifth District in Austin v. Mylander , 717 So. 2d 1073 (Fla. 5th DCA 1998), and the First District in Sams v. Oelrich , 717 So. 2d 1044 (Fla. 1st D.C.A. 1998) all recognize and apply the public duty doctrine. The U.S. district courts, specifically the Southern District of Florida in Smith v. City of Plantation , 19 F. Supp.2d 1323, 1331 (S.D. Fla. 1998) and Middle District of Florida in City of St. Petersburg v. Lewis , 98 F. Supp. 1344 (M.D. Fla. 2000), recognized the application of the doctrine in the Trianon case. Yet, Justice Barkett, from her seat on the 11th Circuit Federal Court of Appeals, in obitur dictum has declared that the doctrine has been abrogated in Florida in Lewis v. City of St. Petersburg , 260 F.3d 1260, 1265 (11th Cir. 2001), partially reversing the Middle District. As with so many aspects of Florida governmental tort law, the vitality of the doctrine has been the subject of considerable confusion. See McQuillan, Municipal Corporations , Vol. 18, §53.04.25, pp. 165–174 (citing Mylander and Sams as public duty cases, but recognizing Commercial Carrier as abrogating the doctrine in Florida.) See also Wetherington & Pollock, supra note 1 at 31 (recognizing the viability of the public duty doctrine as an “exception” to government tort liability).

27 See Stafford v. Barker , 502 S.E.2d 1, 3 (N.C. Ct. App. 1998), rev. den ., 511 S.E.2d 650 (N.C. 1998).

28 See Babcock v. Mason County Fire Dist. , 30 P.3d 1261 (Wash. 2001); Marin v. City of N.Y. , 739 N.Y.2d 523 (N.Y. App. Div. 2002). See also Adams v. City of Freemont , 80 Cal. Rptr. 2d 196 (Cal. 1st Dist. Ct. App. 1998), in which California, the state from which Commercial Carrier borrows the operational/planning level analysis, also applies the public duty doctrine.

29 See Holsten v. Massey , 490 S.E.2d 864, 869 (W. Va. 1997).

30 Trianon, 468 So. 2d at 926 (Shaw, J., dissenting).

31 Trianon 468 So. 2d at 920.

32 This conclusion is contrary to the rationale of Dalehite v. U.S. , 346 U.S. 15, 35–36 (1953), that implementation of governmental policies as well as policy decisions could be immune discretionary functions under the FTCA. See also U.S. v. Varig Airlines, 467 U.S. 797, 811–812 (1984).

33 Yamuni, 529 So. 2d at 261.

34 Id. at 261; See also Reddish v. Smith , 468 So. 2d 929, 932 (Fla. 1985).

35 Yamuni , 529 So. 2d at 258.

36 Id . at 261.

37 Commercial Carrier refers to “acts, omissions or decisions” and to “categor[ies] of governmental activity which involves broad policy or planning decisions.” 371 So. 2d at 1019, 1022.

38 Yamuni , 529 So. 2d at 261.

39 Id. at 267 (Grimes, J., dissenting).

40 Deborah L. Caventer, Note, The Demise of the Discretionary Exception to Sovereign Immunity , 18 Stetson L. Rev . 615 (1989).

41 Kaisner , 543 So. 2d at 733.

42 Id. at 737. The facts discussed in the opinion do not support the conclusion that the officer ordered the motorist to stand anywhere, but only that he told the motorist not to approach the police car.

43 Id. at 735.

44 Id. at 740 (McDonald, J., dissenting).

45 Cf . Leone v. City of Chicago , 619 N.E. 2d 119 (Ill. 1993), in which a divided court found the special duty exception to the public duty doctrine applied to a similar situation involving far greater control by the police officer, and De La Paz v. City of N.Y. , 743 N.Y.S.2d 116 (N.Y. App. Div. 2002), in which there was no special duty to a motorist who was injured in a rear-end accident while sleeping in his disabled car after police had told him they would call a tow truck.

46 See McCain v. Fla. Power Corp ., 593 So. 2d 500 (Fla. 1992), and its progeny.

47 See Adams v. City of Fremont , 68 Cal.App.4th 243, 276 (Cal. 2d Ct. App. 1998); Dore v. The City of Fairbanks , 31 P.3d 788, 792–793 (Alaska 2001); Levy v. Fla. Power and Light Co. , 798 So. 2d 778, 780 (Fla. 4th D.C.A. 2001). See also W. Prosser, Handbook of the Law of Torts §53 at 325 (4th ed. 1971) (the concept of duty is a legal one, and asks “whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct”); W. Keeton, Prosser & Keeton on the Law of Torts §42 at 274 (5th ed. 1984).

48 Brown, 604 So. 2d at 1225; but see Bryant v. Beary, 766 So. 2d 1157 (Fla. 5th DCA 2001) where the court found the sole proximate cause was the fleeing law violator.

49 Brown , 604 So. 2d at 1231 (Overton, J., dissenting).

50 Id. at 1231 (Harding, J., dissenting).

51 Id. at 1228 (Grimes, J., concurring).

52 Henderson v. Bowden , 737 So. 2d 532, 538 (Fla. 1999); Compare Leake v. Cain , 720 P. 2d 152 (Colo. 1986), in which police released a drunk driver to his brother, and the brother then let him drive, resulting in an accident and six deaths. The court found no duty to arrest. See also Dore v. City of Fairbanks , 31 P. 3d 788 (Alaska 2001).

53 Henderson, 737 So. 2d at 539 (Overton, J., dissenting).

54 Fla. Dep’t of Natural Resources v. Garcia , 753 So. 2d 72 (Fla. 2000).

55 California, for instance, has an extensive tort claims act with broad express exceptions from liability in addition to judicially recognized protections such as the public duty doctrine. See generally Zelig v. County of L.A. , 45 P.3d 1171 (Cal. 2002).

56 Levy , 798 So. 2d at 781–782.

Appendix A

Florida Supreme Court Opinions on Governmental Immunity Issues Since Enactment of the Waiver of Immunity Statute

1 ) Commercial Carrier v. Indian River County , 371 So. 2d 1010 (Fla. 1979) (liability for failure to maintain existing traffic control devices)

2) Dep’t of Transp. v. Neilson , 419 So. 2d 1071 (Fla. 1982) (no liability for failure to upgrade existing roads or intersections or build roads with particular alignment)

3) Ingham v. State Dep’t of Transp. , 419 So. 2d 1082 (Fla. 1982) (no liability for alleged defects in the overall plan of a road or for failure to install additional traffic control devices)

4) City of St. Petersburg v. Collom , 419 So. 2d 1082 (Fla. 1982) (liability for failure to warn of creation of known dangerous condition not readily apparent—open storm sewer)

5) Harrison v. Escambia County Sch. Bd. , 434 So. 2d 316 (Fla. 1983) (no liability for designation of school bus stop)

6) Perez v. Department of Transp. , 435 So. 2d 830 (Fla. 1983) (no liability for failure to upgrade and improve bridge, but possible liability for failure to warn of known dangerous condition)

7) Payne v. Broward County , 461 So. 2d 63 (Fla. 1984) (no liability for opening a road before all improvements planned had been completed)

8) Trianon Park Condominium v. City of Hialeah , 468 So. 2d 912 (Fla. 1985) (no liability for negligent actions of building inspectors enforcing building code)

9) Reddish v. Smith , 468 So. 2d 929 (Fla. 1985) (no liability for Department of Corrections’ classification of prisoner to minimum-custody status)

10) Everton v. Willard , 468 So. 2d 936 (Fla. 1985) (no liability for police failure to arrest)

11) Duvall v. City of Cape Coral , 468 So. 2d 961 (Fla. 1985) (no liability for police failing to arrest and permitting intoxicated driver to return to car)

12) City of Daytona Beach v. Huhn , 468 So. 2d 963 (Fla. 1985) (no liability for police failure to arrest)

13) Rodriguez v. City of Cape Coral , 468 So. 2d 963 (Fla. 1985) (no liability for police failure to take into protective custody)

14) Carter v. City of Stuart , 468 So. 2d 955 (Fla. 1985) (no liability for failure to enforce animal control ordinance)

15) City of Daytona Beach v. Palmer , 469 So. 2d 121 (Fla. 1985) (no liability for failure to properly fight a fire)

16) Ralph v. City of Daytona Beach , 471 So. 2d 1 (Fla. 1985) (liability for negligently failing to warn of motor vehicles on beach)

17) Avallone v. Bd. of County Comm’rs Citrus County , 493 So. 2d 1002 (Fla. 1986) (liability for negligently operating swimming facility)

18) Butler v. Sarasota County , 501 So. 2d 579 (Fla. 1986) (liability for creating a designated swimming area where dangerous condition existed)

19) Palm Beach County Bd. of Comm’rs v. Salas , 511 So. 2d 544 (Fla. 1987) (liability for blocking off a turn lane and deactivating turn signal leaving motorists without guidance)

20) Bailey Drainage Dist. v. Stark , 526 So. 2d 678 (Fla. 1988) (liability for negligently rendering an intersection dangerous by obstructions to visibility where hidden trap produced)

21) State Dep’t of Health v. Yamuni , 529 So. 2d 258 (Fla. 1989) (liability for negligent failure to adequately investigate and detect child abuse)

22) Kaisner v. Kolb , 543 So. 2d 732 (Fla. 1989) (liability for negligence in police ordering motorist where to stand during roadside detention)

23) City of Jacksonville v. Mills , 544 So. 2d 190 (Fla. 1989) (liability for maintenance of courthouse)

24) Slemp v. City of N. Miami , 545 So. 2d 256 (Fla. 1989) (liability for negligent failure to operate or maintain drainage pumps to prevent flood damage)

25) Dep’t. of H.R.S. v. Whaley , 574 So. 2d 100 (Fla. 1991) (liability for negligent failure to protect child in custody from potential harm by third persons)

26) Dep’t. of Transp. v. Konney , 587 So. 2d 1292 (Fla. 1991) (no liability for negligent failure to upgrade an intersection)

27) City of Pinellas Park v. Brown , 604 So. 2d 1222 (Fla. 1992) (liability for negligent police pursuit)

28) Dep’t of H.R.S. v. B.J.M. , 656 So. 2d 906 (Fla. 1995) (no liability for allocation of services)

29) Vann v. Dep’t of Corrections , 662 So. 2d 339 (Fla. 1995) (no liability for crim- nal acts of escaped prisoner)

30) Lee v. Dep’t of H.R.S. , 698 So. 2d 1194 (Fla. 1997) (liability for negligent supervision of employees but no liability for
negligent establishment of level of supervision in facility)

31) Henderson v. Bowden , 737 So. 2d 532 (Fla. 1999) (liability for police negligence during roadside detention)

32) Fla. Dep’t of Natural Resources v. Garcia , 753 So. 2d 72 (Fla. 2000) (liability for operating public swimming area not formally designated)

(From 1979 through 1985, only three out of 16 cases found liability. From 1985 through 2002, only three cases out of 16 found no liability.)

Appendix B

Status of Florida

Governmental Tort Liability

As to governmental activities involving legislative, permitting, licensing, and executive officer functions, there is no governmental tort liability. Trianon Park Condominium Ass’n v. City of Hialeah , 468 So. 2d 912, 919 (Fla. 1985).

As to those activities of government which fall within the category of enforcement of laws and protection of public safety, there is no governmental tort liability. Id.

First exception : For the operation of a motor vehicle or the handling of firearms during the course of employment to enforce compliance with the law, there may be liability if the specific activity does not fall within that category of governmental activity which involves broad policy or planning decisions. Id. at 920.

Second exception : Where a special relationship exists between an individual and the governmental entity, a “special duty” at the operational level may exist and there may be governmental liability. Kaisner v. Kolb , 543 So. 2d 732 (Fla. 1989). Exception to exception : Where a “serious emergency” exists, this “may. . . reach such a level of urgency as to be considered discretionary and not operational.” Id. at 738 n.3 and City of Pinellas Park v. Brown , 604 So. 2d 1222, 1227 (Fla. 1992).

Third exception : Where the governmental activity creates a “foreseeable zone of risk” or “substantial zone of risk,” there may be liability if the activity may be classified as operational-level as opposed to planning-level activity. Henderson v. Bowden , 737 So. 2d 532 (Fla. 1995).

As to governmental capital improvement and property control functions, there is no liability for the failure of a governmental entity to build, expand, or modernize capital improvements. There is no liability for defects inherent in the overall design of a public improvement, but there may be liability for defects not inherent in the overall design of a public improvement. Dep’t of Transp. v. Neilson , 419 So. 2d 1071 (Fla. 1982). Exception : If the governmental entity creates a known dangerous condition which is not readily apparent to one who may be injured thereby, there may be liability for a defect inherent in the plan for the public improvement. City of St. Petersburg v. Collom , 419 So. 2d 1082 (Fla. 1982). Exception to exception : If danger is “conspicuous” no duty to warn or correct arises at the operational level. See Dep’t of Transp. v. Konney , 587 So. 2d 1292, 1299 (Fla. 1991).

There may be liability for the failure of a governmental entity to properly maintain and operate public property or improvements. Trianon , 468 So. 2d at 920-922.

As to those activities of government involving providing professional, educational, and general services, there may be governmental liability unless the provision of those services falls within that category of governmental activity which involves broad policy or planning decisions. Id. at 918-920.

Caveat : The state of the law as represented by these principles is subject to change at any time based upon changing ideology of the court considering any particular set of facts on a “case-by-case” basis and whether preceding decisions are regarded as precedent or merely “rough guides.” See State Dep’t. of Health and Rehabilitative Serv. v. Yamuni , 529 So. 2d 258 (Fla. 1989).

Appendix C

States Applying

Public Duty Doctrine

California, Adams v. City of Fremont , 68 Ca. App. 4th 243 (Cal. 5th Ct. App. 2d 1998); Williams v. State , 664 P.2d 137 (Cal. 1983)

Connecticut, Burns v. Board of Edu., 638 A.2d 1 (Conn. 1994); Redfearn v. Ennis , 610 A.2d 1338 (Conn. App. Ct. 1992)

Delaware, Martin v. State , 2001 WL 112100(Del. Super. Ct. 2001); Castellani v. Del. State Police , 751 A.2d 934 (Del. Super. Ct. 1999)

Georgia, Rowe v. Coffey, 515 S.E.2d 375 (Ga. 1999)

Hawaii, Ruf v. Honolulu Police Dep’t, 972 P.2d 1081 (Haw. 1999)

Illinois, Leone v. City of Chicago , 619 N.E.2d 119 (Ill. 1993)

Indiana, Benton v. City of Oakland City , 721 N.E.2d 224 (Ind. 1999)

Iowa, Donahue v. Washington City , 641 N.W.2d 848 (Iowa Ct. App. 2002)

Kansas, McCormick v. Board of County Comm’rs of Shawnee , 35 P.3d 815 (Kan. 2001); Fudge v. City of Kan. City , 720 P.2d 1093 (Kan. 1986)

Kentucky, Ashby v. City of Louisville , 841 S.W.2d 184 (Ky. Ct. App. 1992)

Louisiana, Kniepp v. City of Shreveport , 609 So. 2d 1163 (La. Ct. App. 1992)

Maryland, Lovelace v. Anderson , 785 A.2d 726 (Md. 2001); Williams v. Mayor of Baltimore , 753 A.2d 41(Md. 2000); Ashburn v. Anne Arundel County , 510 A.2d 1078(Md. 1986)

Massachusetts, Sampson v. Lynn , 537 N.E.2d 588 (Mass. 1989)

Michigan, Stanton v. Battle Creek (Mich. 2002), Nawrocki v. Macomb County Road Comm’n , 615 N.W.2d 702 (Mich. 2000)

Minnesota, Woehrle v. City of Mankato , 647 N.W.2d 549 (Minn. Ct. App. 2002)

Missouri, State ex rel. Barthelette v. Sanders , 756 S.W.2d 536 (Mo. 1988)

Montana, LaTray v. City of Havre , 999 P.2d 1010 (Mont. 2000)

Nevada, Coty v. Washoe County , 839 P.2d 97 (Nev. 1992)

New Hampshire, Island Shores Estates Condo. v. City of Concord , 615 A.2d 629 (N.H. 1992)

North Carolina, Wood v. Guilford Cty ., 558 S.E.2d 490 (N.C. 2002)

Ohio, Ashland City Comm’rs v. Dep’t of Tax ., 590 N.E.2d 730 (Oh. 1992); Markowitz v. Ohio Dep’t of Ins. , 759 N.E.2d 838 (Ohio App. 2001)

Pennsylvania, Morris v. Musser , 478 A.2d 937 (Pa. Commw. Ct. 1984)

Rhode Island, Schultz v. Foster-Glocester Regional Sch. Dist. , 755 A.2d 153 (R.I. 2000); Martinelli v. Hopkins , 787 A.2d 1158 (R.I. 2001)

South Carolina, Arthurs v. Aiken County , 525 S.E.2d 542 (S.C. Ct. App. 1999)

South Dakota, E. P. v. Riley , 604 N.W.2d 7 (S.D. 1999)

Tennessee, Matthews v. Pickett County , 996 S.W.2d 162 (Tenn. 1999); Ezell v. Cockrell , 902 S.W.2d 394, 404 n.5 (Tenn. 1995) (listing a majority of states that still follow the public duty doctrine)

Texas, Fernandez v. City of El Paso , 876 S.W.2d 370 (Tex. App. – El Paso 1993)

Utah, Day v. State ex rel. Dep’t of Pub. Safety , 980 P.2d 1171 (Utah 1999)

Vermont, Hillerby v. Town of Colchester , 706 A.2d 446 (Vt. 1997)

Virginia, Burdette v. Marks , 421 S.E.2d 419 (Va. 1992)

Washington, Babcock v. Fire Dist. , 30 P.3d 1261 (Wash. 2001)

West Virginia, Walker v. Meadows , 521 S.E.2d 801 (W. Va. 1999)

William N. Drake, Jr., received his J.D. from the University of Florida in 1975 and since his graduation has been an assistant city attorney with the St. Petersburg City Attorney’s Office, concentrating in civil litigation. He has been board certified in civil trial law since 1984.

Thomas A. Bustin is a graduate of Ohio State University Law School in 1961 and has held the position of city attorney and county attorney in Florida. Since 1995, Mr. B ustin has been an assistant city attorney with the St. Petersburg City Attorney’s Office, concentrating in civil litigation.