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The Rescue of an August Body of Law: Florida’s Public Duty Doctrine

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In June 2004, the Florida Supreme Court issued a long-awaited1 and significant opinion in the area of governmental tort law when it decided Pollock v. Florida Highway Patrol, 882 So. 2d 928 (Fla. 2004). Factually, Pollock involved a wrongful death action arising from a September 5, 1993, collision of a vehicle in which the plaintiffs’ daughters were riding, and a tractor-trailer stalled on the Palmetto Expressway. About an hour before the accident, a motorist passing the location had observed the stalled truck and called 911 to report the traffic hazard to the Florida Department of Highway Patrol dispatcher. However, the dispatcher failed to enter the call in the computer for assignment to an FHP unit. As a result, no FHP trooper was dispatched to the scene as required by FHP policy.

Plaintiffs, the parents of the two women who were killed in the accident, alleged, inter alia, that the FHP negligently failed to maintain the highway in a reasonably safe condition, warn of known dangers on the roadway, and correct dangerous conditions. Additionally, plaintiffs alleged FHP negligently failed to comply with its own policies and procedures by not dispatching an officer to the scene of the stalled tractor-trailer. The case was tried before a jury, who awarded the parents over $16 million;2 however, on appeal, the district court reversed the judgment, finding that “the trial court erred in failing to direct a verdict in [FHP’s] favor where there was nothing to indicate that FHP’s actions or inactions were operational in nature and where FHP otherwise owed no special duty to the decedents, as a matter of law, so as to impose governmental tort liability.”3 In addition to reversing the lower court, the district court certified conflict to the Florida Supreme Court.

The Supreme Court accepted jurisdiction based upon conflict between the subject Third District Court of Appeal opinion and two earlier opinions of the Second DCA. In a per curiam opinion, the Supreme Court approved, but clarified the decision of the Third DCA, resting its holding not upon the FHP’s planning-level immunity, as the DCA analysis suggested it had, but upon Florida’s public duty doctrine, which is only vaguely identified in the Supreme Court opinion as “an august body of law.” This article examines the Supreme Court’s opinion, its analysis, rationale, and implications.

Identity Crisis
Without mentioning the public duty doctrine by name, the majority Supreme Court opinion in Pollock rests firmly upon the doctrine, the foundational principle of which was enunciated in prior opinions in Everton v. Willard, 468 So. 2d 936 (Fla. 1985), and Vann v. Department of Corrections, 662 So. 2d 339, 340 (Fla. 1995), that, “[a] governmental duty to protect its citizens is a general duty to the public as a whole, and where there is only a general duty to protect the public, there is no duty of care to an individual citizen which may result in liability.”

The last application of the public duty doctrine by the Supreme Court before Pollock was in Vann, answering in the negative the certified question, “Whether the State of Florida, Department of Corrections, may be held Liable as a Result of the Criminal Acts of an Escaped Prisoner.”

Another hint at the identity of the august body of law underpinning Pollock is the Florida Supreme Court’s citation to Gerald T. Wetherington and Donald Pollack’s Tort Suits Against Governmental Entities in Florida “for a thorough overview of the historical development of the sovereign immunity doctrine in Florida.”4 That law review article contains various references to Florida’s adoption of the public duty doctrine in Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). In discussing the scope of the waiver of governmental immunity from tort liability under F.S. §768.28 (1975), the authors of the article wrote, “Florida courts have recognized two exceptions [to the waiver]. First, the discretionary function exception is based on the separation of powers doctrine. Second, the public duty doctrine exception primarily protects the government against overburdensome tort liability, as well as furthering separation of powers interest.”5

The infrequency of the public duty doctrine’s application along with its inauspicious lineage, as described below, may account in part for its continued anonymity in the Supreme Court, but prior to Pollock those qualities also may have contributed to the conclusion by some judges that the doctrine was defunct in this state.6

A Tainted Ancestry
To better understand the majority opinion in Pollock and the Supreme Court’s reluctance to expressly embrace the public duty doctrine clearly and by name, it may be useful to know something about the evolution of municipal immunity law generally in Florida and the lineage of the doctrine in particular. With its decision in Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957), the Florida Supreme Court gained national recognition as a trendsetter in the movement to reduce municipal immunity from tort liability.7 This movement regarded such governmental protections from liability as an undesirable vestige of English sovereignty, creating an inequality that had no place in a society founded upon the notion that the people, not a monarch, are paramount.8 Hargrove receded from prior decisions holding municipal corporations immune from liability for the torts of police officers. The decision permitted a widow to recover against the town for the death of her husband caused by a police officer’s negligence in allowing the decedent, locked in the town jail, to suffocate from smoke inhalation. The Supreme Court in Hargrove regarded its ruling as consistent with the idea that the “modern city is in substantial measure a large business institution,” thus, undeserving of sovereign immunity.9

But if Hargrove reflected a progressive egalitarianism in the evolution of local governmental tort law, then the decision of the court in Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla. 1967), must have represented an embarrassing step backward to some. In Modlin, the Supreme Court recognized “a doctrine of respectable lineage and compelling logic that holds that. . . [the] duty [necessary to support a negligence action] must be something more than the duty that a public officer owes to the public generally.”10 Adhering to that doctrine, the court held that the city was not liable based upon respondeat superior for a building inspector’s alleged negligence in failing to inspect a store mezzanine, which fell on and killed a store patron, because the inspector owed no special duty to the patron other than the duty owed to the public generally.

The Modlin ruling incensed the proponents of expanding municipal liability, drawing a chorus of criticism, which eventually led the Supreme Court in Commercial Carrier v. Indian River County, 371 So. 2d 1010, 1016 (Fla. 1979), to “conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28 [Florida Statutes (1975), waiving governmental immunity in tort].” The court in Commercial Carrier reasoned as follows:
First, we believe it to be circuitous reasoning to conclude that no cause of action exists for a negligent act or omission by an agent of the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person. This is the “general duty” – “special duty” dichotomy emanating from Modlin, supra. less kind commentators, it has been characterized as a theory which results in a duty to none where there is a duty to all. Regardless, it is clear that the Modlin doctrine is a function of municipal sovereign immunity and not a traditional negligence concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not.11

While dialectically appealing, the criticism that the Modlin dichotomy produces “circuitous reasoning” is itself based upon the faulty premise that all obligations produce duties of care in the context of negligence law. In fact, “duty” has a specialized meaning in the law of negligence, a meaning traditionally restricted to legal obligations to protect from unreasonable risks of harm.12

Although the court in Commercial Carrier could find no justification for the continued application of sovereignty-based governmental immunity, it concluded that “implied” governmental immunity “grounded instead upon a concept of separation of powers which will not permit the substitution of the decision by a judge or jury for the decision of a governmental body as to the reasonableness of planning level activity conducted by that body” survived the enactment of §768.28.13

While the decision in Commercial Carrier was a laudable effort to base governmental immunity on a foundation other than the outdated notion of sovereign infallibility, the analysis is deeply flawed in jettisoning Modlin, which is in no way antithetical to the principle of separation of powers. In fact, the Commercial Carrier operational-versus-planning-level analysis for governmental functions, subject to tort liability later, would prove inadequate to ensure that the courts would not unduly interfere with some of the most basic executive functions, such as law enforcement and protection of public safety. The “doctrine of respectable lineage” alluded to in Modlin would be necessary to protect such “police power functions” from judicial scrutiny, as the Supreme Court would acknowledge in Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985).

Restrained Revival
In Trianon Park, the Florida Supreme Court revived the public duty doctrine, moribund since Commercial Carrier, when it held that there was no common law duty of care with respect to certain governmental functions such as the enforcement of laws and the protection of public safety. Yet, despite its recognition of the distinction between the absence of duty and immunity, the court did not recede clearly from its earlier rejection of Modlin, instead saying,

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. We expressly recognized that there were areas of governmental activity where “orthodox tort liability stops and the act of governing begins,”. . . as well as the “distinct principle of law. . . which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing.” 371 So.2d at 1020.14

The general duty/special duty dichotomy contained in Modlin is an integral aspect of the public duty doctrine analysis, regardless of whether the particular facts in Commercial Carrier required application of that analysis. Thus, in ostensibly approving the rejection of the dichotomy under the Commercial Carrier facts, the Supreme Court in Trianon left a lingering and legitimate doubt about the vitality of the public duty doctrine in Florida. That doubt has found expression in a variety of confusing decisions since Trianon.15

Nevertheless, the vitality of the principle underlying the public duty doctrine in Florida was confirmed by the Florida Supreme Court in Vann in 1995 and the subsequent recognition of the public duty doctrine by at least three state district courts16 and two federal district courts.17 However, in Lewis v. City of St. Petersburg, 260 F.3d 1260 (11th Cir. 2000), the federal court announced the demise of the doctrine in Florida, declaring boldly in obitur dictum that “the public duty doctrine has no continuing vitality under Florida law subsequent to the effective date of Fla. Stat. §768.28.”18 This set the stage for the Florida Supreme Court to revisit the issue of the vitality of the doctrine in Pollock.

Reticent Rescue — The Majority Opinion
The majority opinion in Pollock did not directly address the uncertainty about the viability of the public duty doctrine generated by Trianon and its successor cases. Instead, the Supreme Court simply reviewed the district court decision under an “analytical framework applied to questions of governmental tort liability.”19 That framework involves the court’s initial inquiry into whether “a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances.”20 If such a duty of care is found to exist, then, and only then, is it necessary for the court to engage in a “sovereign immunity analysis.” Following this conceptual order in the analysis of governmental tort liability questions is necessary because, strictly speaking, the public duty doctrine is not an immunity since it does not protect government from liability for breaching a duty of care. Rather, it recognizes the absence of any legally enforceable duty in the first place for certain types of governmental conduct.21

The public duty doctrine, which is “in effect in most jurisdictions” according to the authoritative treatise of Eugene McQuillan, Municipal Corporations, “provides that where a municipality has a duty to the general public, as opposed to a particular individual, breach of that duty does not result in tort liability.”22 McQuillan describes various reasons for the public duty doctrine.23 The majority opinion in Pollock followed the public duty doctrine rationale when it considered whether a duty existed under the petitioners’ theories that 1) “FHP had a common law duty to maintain the highway in a reasonably safe condition, to warn of known dangers on the roadway, and to correct any dangerous conditions,. . . ” and 2) “FHP’s policies and procedures governing incident response created a duty to dispatch an officer.” The court determined that the policies and procedures did not “create an independent duty of care.” Further, the majority found no duty on the part of FHP either to maintain the highway or to remove stalled or abandoned vehicles, and citing Trianon, found that “patrolling the state highways, controlling the flow of traffic, and enforcing the traffic laws are duties FHP owes to the general public, as opposed to an individual person.”24

The per curiam opinion in Pollock also considered whether a “special duty” was created by FHP officers becoming “directly involved in circumstances which place people within a ‘zone of risk’ by creating or permitting dangers to exist, by taking them into police custody, detaining them, or otherwise subjecting them to danger.”25 Such special duties, which constitute an exception to the protection of the public duty doctrine in many states, have been recognized in Florida in cases where a police officer has made a “decision to assume control” or where the officer “makes a direct representation to the plaintiff, or one so closely involved with the plaintiff that their interests cannot be separated, he or she will take a specified law enforcement action.”26

However, in Pollock FHP officers had not dealt directly with the decedents or those close to them with the same interests. Thus, FHP owed the decedents no special duty to respond to the emergency 911 call from the third party motorist who had observed and reported the stalled vehicle. After extensively examining all aspects of the duty issue, the majority held that “FHP had no legally recognized particular tort duty which would generate or impose governmental tort liability with regard to responding to the scene, the issuance of warnings or the potential danger, or provision for the removal of the tractor-trailer under the circumstances presented in this case.”27

Despite its extensive analysis of the duty question, however, the majority did not expressly acknowledge its reliance on the public duty doctrine by name or explicitly and unequivocally recede from its earlier decision in Commercial Carrier to the extent that the earlier case had rejected the dichotomy central to the public duty doctrine. It is that unresolved conflict and the reluctance of the court to expressly endorse the public duty doctrine by name that may result in continuing confusion as to the doctrine’s viability in Florida.

Practical Avoidance — The Concurrence
After posing a number of rhetorical questions to illustrate the potentially limitless and daunting liability of government for tragedies not prevented, the concurring opinion in Pollock, authored by Chief Justice Anstead and joined in by Justice Wells, concluded as follows:

[T]he reality is [tragedies] are possible every time 911 is called, and that is the specter we face if we are to recede from our prevailing law. So, of course police and other emergency responders have a duty to respond to emergencies and they carry a heavy burden each time they are called. To date, however, we have declined to recognize the government’s liability in tort each time a call for help is received.28

The concurrence is utilitarian and pragmatic in tone. It weighs the economic and social utility of the conduct involved — the operation of the 911 emergency system — against the benefit and economic impact of exposing the governmental conduct to tort liability. This is a classic and almost universally accepted analysis for whether a duty of care should be imposed under the negligence law in most states. In Florida, however, the test for the existence of duty has undergone a judicial transformation, and ordinarily, the inquiry is simply whether the challenged conduct creates a foreseeable zone of risk.29

Modlins v. McCains — The Dissent
Underlying the public duty doctrine is the notion that certain governmental conduct — even though it may create a “zone of risk” — may not give rise to a duty of care to individuals if the burden of exposing the government to tort liability is significant enough that it may substantially interfere with or impair the ability of the executive branch to exercise its power for the public benefit. This rationale for the public duty doctrine collides with the Florida negligence principle that any conduct which creates a “foreseeable zone of risk” gives rise to a duty of care. The inconsistency was not lost on the dissent in Pollock, which declared:

In my view, the better approach in analyzing duty in governmental tort cases is to focus on conventional tort principles, and in particular foreseeability, which this Court has recognized as “crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions.” McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992).30

The dissent’s argument is that McCain articulates Florida’s avowed legal standard for duty and the application of that standard to the facts in Pollock, like its application to a wide range of conduct, should produce a legal duty. The majority in Pollock countered this argument by asserting that “where police officers, such as FHP in the instant case, have not arrived on the scene or assumed any degree of control over the situation, the ‘zone of risk’ analysis has no application.”31 But the dissent scoffed at the majority’s distinction, stating “the Court’s decision rests on drawing what I consider to be an arbitrary line between a direct representation made to one ‘closely involved with the plaintiff’ and a direct representation to a third party.”32

Indeed, prior to the Pollock decision, the Supreme Court had applied McCain to create duties to third parties for whole classes of private-party defendants who had no direct contact with or representations to those parties.33 However, adhering to the McCain standard under the Pollock facts and with a government defendant implicates an additional factor — the constitutional separation of powers principle. As the specially concurring justices recognized,

The very real and practical question is whether this valuable public service [emergency responders] could or would be provided if every response put the government at risk or damages to the victims of the emergency if the response was not adequate. To date, however, our case law suggests that government can make the public policy decision to provide emergency services without the government also assuming liability for the reasonableness of the response in each of the thousands of incidents that occur each day in Florida.34

This analysis recognizes that if the danger of substantial interference with other branches of government or the public utility of the challenged conduct outweighs the benefit of exposing that government conduct to tort liability, the public duty doctrine has the flexibility to conclude that no duty arises.35 The specially concurring justices in Pollock recognized that sometimes the court must look beyond the myopia of the McCain standard for duty and consider the social and economic consequences of imposing such a legal duty. This approach to the question of the existence of duty as an element of negligence in Pollock is far more consistent with Modlin and with traditional principles of negligence law nationally than is the McCain “foreseeable zone of risk” test for duty as an element of negligence.

In Pollock, the specially concurring justices’ determination that no duty existed was not based exclusively on the conclusion that the conduct of the FHP produced no foreseeable zone of risk, but rather on considerations that the social and economic utility of the conduct (operating a 911 emergency system with its ancillary protective agencies such as FHP) outweigh the interests in compensating the plaintiffs for their undeniable losses. Indeed, unlimited exposure to the kind of multimillion dollar verdict involved in Pollock could dampen the governmental enthusiasm for operating a 911 system or linking agencies such as FHP to that system.

Wetherington and Pollock, whose law review article is cited by the majority in Pollock, explain the rationale for applying the public duty doctrine in situations involving facts like those in Pollock as recognizing the practical need to shield the governmental entity from liability “for simply failing to provide a governmental review or enforce the law.”36 Nevertheless, for the dissenters in Pollock, the public duty doctrine, no matter how august it may be, was rejected along with Modlin in the Commercial Carrier case. Consequently, the dissenters would insulate little, if any, governmental activity from tort liability except governmental decisionmaking. They perceive even legislatively mandated executive obligations, such as the FHP’s statutory obligation to patrol the state highways, regulate and control the flow of traffic, as conduct producing a common law duty of care to third parties, such as the decedents, even when there was no direct contact between FHP and the decedents. The dissent argued that “FHP assumed control over the situation when the dispatcher assured Mr. Pedrero [the driver who stopped to call about the stalled truck] that he would send a unit to check it out.”37

Constitutional Constraint
The principle of separation of powers, which is at the core of both discretionary function immunity and the public duty doctrine,38 recently was described by the Supreme Court as “[t]he cornerstone of American democracy.”39 Art. II, §3 of the state constitution proclaims, “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

The Supreme Court has declared that this provision reflects “a strict separation of powers doctrine. . . rather than a doctrine effecting the ‘dispersal of decisional responsibility in the exercise of each power. . . . ’”40 Thus, Florida’s constitutional prohibition against branch intermeddling translates into something more than an expression of desire that the coordinate branches treat one another with courtesy and respect.

Both the public duty doctrine and discretionary function or planning-level immunity may be viewed as proxies for judicial restraint in the sense that they represent the court’s recognition that separation of powers requires deference to the other branches of government by refraining from imposing tort liability where such imposition is likely to interfere unduly with the legitimate exercise of powers belonging to the coordinate branch. Logically, in its scrutiny of governmental conduct in the context of negligence allegations, the court first should ask itself whether judicially exposing the conduct to tort liability will violate the prohibition on exercising powers belonging to the other branches. A clearly defined public duty doctrine rooted in the principle of separation of powers in Florida will enhance the ability of the lower courts to understand and apply the principles of the doctrine appropriately.

The public duty doctrine in Florida has been the doctrinal equivalent of an unwanted stepchild; reluctantly acknowledged, yet never wholeheartedly embraced by the Florida Supreme Court. Its descent from the unpopular and misunderstood Modlin decision has been problematic for the court. Yet, the public duty doctrine is as worthy of acceptance as the implied discretionary function immunity recognized in Commercial Carrier. Both find strong support in the fundamental constitutional principle of separation of powers and promote the responsible free exercise of police powers for the general welfare by officials at the state and local levels of government.

The Pollock decision is a favorable development for state and local government in Florida; however, the opinion also leaves uncertainty about the scope and contours of the public duty doctrine and the analytical framework to be employed in determining its applicability in our state. Further clarification will be needed if the doctrine is to have meaningful application in the lower courts. Perhaps the Supreme Court has left the boundaries of the doctrine imprecise and the analysis elastic to afford latitude to conform the law to current public policy needs. The cost of such malleability in the law, however, may be confusion and delay, as reflected in the analysis of the district court in Pollock and in the five-year appellate review required to reach a final result. While the Supreme Court in Pollock corrected the district court’s analysis “conflating the duty and sovereign immunity analyses,” it did not yet dispel completely the aura of mystery surrounding the acceptance and application of Florida’s “august body of law.”41

1 The case involves an accident which occurred in 1993. The decision of the Third District was rendered in November 1999, when the case was “conflict certified.” Oral arguments took place in the Florida Supreme Court on February 6, 2002, but the decision was rendered June 10, 2004, and not released for publication until September 2004. Justices Harding and Shaw, who had been on the court at the time of oral argument, had retired and been replaced by Justices Cantero and Bell by the time the decision was rendered.
2 Answer Brief of State of Florida on the Merits, Statement of Case, p. 5.
3 State Dept. of Highway Patrol v. Pollack, 745 So. 2d 446, 447 (Fla. 3d D.C.A. 1999).
4 Pollock, 882 So. 2d at 932, N.3 (Fla. 2004).
5 Gerald T. Wetherington and Donald Pollack, Tort Suits Against Governmental Entities in Florida, 44 Fla. L. Rev. 1, 30-31 (1992).
6 See, e.g., Lewis v. City of St. Petersburg, 260 F.3d 1260, 1265 (11th Cir. 2001).
7 Citing Hargrove, Eugene McQuillan, Municipal Corporations §53.04.25, 207, (3d ed.) (2003 Revised Volume), contains the following description: “For many years, most of the courts adhered to the rule of municipal governmental immunity out of sheer wealth of judicial authority, often reluctantly. Starting with Florida in 1957, state high courts began overturning the common-law doctrine entirely.” (Footnotes omitted.)
8 The court in Hargrove remarked that the U.S. fought the Revolutionary War over this sort of thing and won. In receding from the prior holdings that a municipality was immune for the torts of its police officers, the court declared the doctrine that the king can do no wrong “anachronistic not only to our system of justice but to our traditional concepts of democratic government.”
9 This view of the municipality as essentially a big business was rejected 23 years later by the court in Cauley v. City of Jacksonville, 403 So. 2d 379, 386 (Fla. 1981), but it has been resurrected recently in American Home Assurance Company v. National Railroad Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005).
10 Modlin, 201 So. 2d at 75.
11 Commercial Carrier v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979).
12 W. Prosser, Handbook of the Law of Torts, §53 at 324-325 (4th ed. 1971).
13 Commercial Carrier, 371 So. 2d at 1018.
14 Trianon, 468 So. 2d at 918.
15 See generally, William N. Drake, Jr., and Thomas A. Bustin, Government Tort Liability in Florida: A Tangled Web, 77 Fla. B.J. 8 (Feb. 2003).
16 Sams v. Oelrich, 717 So. 2d 1044, 1047 (Fla. 1st D.C.A. 1998); Seguine v. City of Miami, 627 So. 2d 14 (Fla. 3d D.C.A. 1993); and Austin v. Mylander, 717 So. 2d 1073, 1075 (Fla. 5th D.C.A. 1998).
17 Smith v. City of Plantation, 19 F. Supp. 2d 1323, 1331 (S.D. Fla. 1998), and City of St. Petersburg v. Lewis, 98 F. Supp. 2d 1344, 1349 (M. D. Fla. 2000).
18 But cf., Hamilton ex rel Hamilton v. Cannon, 114 F.3d 172 (11th Cir. 1997) (scope of Georgia’s public duty doctrine was for the state supreme court to decide).
19 Pollock, 882 So. 2d at 932 (Fla. 2004).
20 Id.
21 Id.
22 Eugene McQuillan, Municipal Corporations §53.04.25, 207, (3d ed.) (2003 Revised Volume).
23 Id. at199.
24 Pollock, 882 So. 2d at 935.
25 Id.
26 Id.
27 Id. at 938 (Anstead, J., concurring).
28 Id. at 939.
29 E.g., Goldberg v. Florida Power and Light Company, 899 So. 2d 1105 (Fla. 2005) (corrected April 14, 2005).
30 Pollock, 882 So. 2d at 941 (Pariente, C. J., dissenting).
31 Id. at 935-936.
32 Id. at 941.
33 See generally, William N. Drake, Jr., Foreseeable Zone of Risk: Confusing Foreseeability with Duty in Florida Negligence Law, 78 Fla. B.J. 10 (Apr. 2004).
34 Pollock, 882 So. 2d at 939 (Anstead, J., concurring).
35 But why should the court hogtie itself with McCain in such a way that it is prevented from engaging in the same kind of policy analysis as to conduct not involving the government? See, e.g., Davis v. Dollar Rent-a-Car Systems, Inc., 909 So. 2d 297, 305 (Fla. 5th D.C.A. 2004) (Griffin, J., concurring in part; dissenting in part.)
36 Gerald T. Wetherington & Donald Pollack, Tort Suits Against Governmental Entities in Florida, 44 Fla. L. Rev. 1, 32 (1992). The recent decision of the U.S. Supreme Court in Town of Castlerock v. Gonzales 125 Sup. Ct. 2796, 2005 EX155215 U.S. (June 27, 2005, Case No. 04- 278) makes reference to the protections afforded by the special duty exception to the public duty doctrine in Kentucky.
37 Pollock, 882 So. 2d at 942 (Pariente, J., dissenting).
38 See Commercial Carrier, 371 So. 2d 1010, 1017-1022 (Fla. 1979) (discretionary function, planning level immunity based on separation of powers); Trianon Park Condominium, 468 So. 2d 912, 917-921 (Fla. 1985) (public duty doctrine founded on separation of powers).
39 Jeb Bush v. Michael Shiavo, 885 So. 2d 321, 329 (Fla. 2004).
40 State v. Cotton, 765 So. 2d 345, 353 (Fla. 2000).
41 This confusion of duty and immunity analyses may stem from Commercial Carrier’s recognition of “discretionary governmental function” immunity and Trianon, 468 So. 2d 912, 917 (Fla. 1985) in which the court seems to intermingle the two, remarking that “[f]or certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care.”

William N. Drake, Jr., received his J.D. from the University of Florida in 1975 and is 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. He gives special thanks to John C. Wolfe, city attorney, Kathleen Bara, Kim Streeter, Al Galbraith, and the members of his office for their help in preparing this article.