Diane Scott v. Daniel Zieg

• Court: District Court of Appeal of Florida
• Decided: January 10, 2024
• Docket: 2023-0147
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 10, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0147 Lower Tribunal No. 22-61-M ________________

Diane Scott, Appellant,

vs.

Daniel Zieg, Appellee.

An Appeal from the County Court for Monroe County, James W. Morgan, III, Judge.

Diane Scott, in proper person.

Carr Allison, and Austin C. Sherman and Alison H. Sausaman (Jacksonville), for appellee.

Before EMAS, FERNANDEZ and SCALES, JJ.

PER CURIAM. Affirmed. See § 768.28(6)(a), Fla. Stat. (2022) (providing in part: “An

action may not be instituted on a claim against the state or one of its agencies

or subdivisions unless the claimant presents the claim in writing to the

appropriate agency. . . within 3 years after such claim accrues . . . .”); §

768.28(6)(b), Fla. Stat. (2022) (providing that “the requirements of notice to

the agency and denial of the claim pursuant to paragraph (a) are conditions

precedent to maintaining an action”); Menendez v. North Broward Hosp.

Dist., 537 So. 2d 89, 90 (Fla. 1988) (“Under section 768.28(6), not only must

the notice be given before a suit may be maintained, but also the complaint

must contain an allegation of such notice.”) See also § 768.28(9)(a), Fla.

Stat. (2022) (providing in part: “An officer, employee, or agent of the state or

of any of its subdivisions may not be held personally liable in tort or named

as a party defendant in any action for any injury or damage suffered as a

result of any act, event, or omission of action in the scope of her or his

employment or function, unless such officer, employee, or agent acted in bad

faith or with malicious purpose or in a manner exhibiting wanton and willful

disregard of human rights, safety, or property.”); Gay v. Jupiter Island

Compound, 358 So. 3d 780, 788 (Fla. 4th DCA 2023) (the court is limited to

the four corners of plaintiff’s complaint when determining, at this stage of the

proceedings, whether a state employee or agent is entitled to immunity under

2 section 768.28); Peterson v. Pollack, 290 So. 3d 102, 105 (Fla. 4th DCA

2020); Preudhomme v. Bailey, 211 So. 3d 127, 132 (Fla. 4th DCA 2017).