Ioannis Zisis, Ph.D. v. Signal Safe, Inc., etc.

• Court: District Court of Appeal of Florida
• Decided: January 17, 2024
• Docket: 2022-2122
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 17, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-2122 Lower Tribunal No. 17-29075 ________________

Ioannis Zisis, Ph.D., Appellant,

vs.

Signal Safe, Inc., etc., Appellee.

An appeal from a non-final order from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.

Wydler Law, Lauren D. Martin, Andrei F. Dambuleff, and Lourdes E. Wydler, for appellant.

VLP Copenhaver Espino, Mike Piscitelli, and Kristen M. Jimenez (Fort Lauderdale), for appellee.

Before SCALES, HENDON, and MILLER, JJ.

MILLER, J. This is one of two companion appeals implicating the role sovereign

immunity occupies in a tort claim stemming from a contractual relationship

between two public entities. 1 Appellant, Ioannis Zisis, Ph.D., an engineering

professor at Florida International University (“FIU”), challenges an order

denying a motion to dismiss a negligence action filed in the lower tribunal by

appellee, Signal Safe, Inc. On appeal, Dr. Zisis contends the trial court erred

in failing to find he was cloaked from liability by sovereign immunity. We

have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(F)(ii). For the reasons set

forth below, we reverse.

BACKGROUND

This dispute finds its genesis in a series of contracts executed between

the Florida Department of Transportation (“FDOT”) and FIU. Under the

terms of the contracts, FIU agreed to evaluate the performance of traffic

reinforcement devices manufactured by Signal Safe in simulated storm

conditions using the Wall of Wind, an engineering testing facility located on

campus. Dr. Zisis was designated as the principal investigator. After

performing testing, the team of professionals involved reported unfavorable

results to FDOT.

1 This case was consolidated with 3D22-2121 for purposes of oral argument.

2 Signal Safe subsequently filed suit in the circuit court against FIU, Dr.

Zisis, and Dr. Peter Irwin, a “co-principal investigator” assigned to the project.

The claims against Dr. Irwin are the subject of the companion appeal.

The complaint proceeded through several different iterations. In the

operative pleading, the Fifth Amended Complaint, Signal Safe alleged that

Dr. Zisis exceeded the scope of his employment by opining as to the efficacy

of the traffic devices and engaging in unlicensed engineering that extended

beyond the bounds of the teaching exception codified in section 471.0035,

Florida Statutes (2022). See id. (“For the sole purpose of teaching the

principles and methods of engineering design, . . . a person employed by a

public postsecondary educational institution . . . is not required to be licensed

under the provisions of this chapter as a professional engineer.”).

Contending that all the actions asserted as a basis for recovery in the

complaint occurred within the scope of employment, Dr. Zisis moved to

dismiss on sovereign immunity grounds. The trial court denied the motion,

and the instant appeal ensued.

STANDARD OF REVIEW

“The issue of sovereign immunity . . . is a legal issue subject to a de

novo standard of review.” Plancher v. UCF Athletics Ass’n, Inc., 175 So. 3d

724, 725 n.3 (Fla. 2015); see also Dist. Bd. of Trs. of Mia. Dade Coll. v.

3 Verdini, 339 So. 3d 413, 417 (Fla. 3d DCA 2022) (“We review the trial court’s

determination regarding sovereign immunity, a question of law, de novo. The

issue of sovereign immunity may properly be considered on a motion to

dismiss.”) (internal citations omitted). In considering the propriety of a ruling

on a motion to dismiss, the reviewing court is constrained by consideration

of only the facts alleged within the four corners of the complaint, along with

any incorporated attachments. See Univ. of S. Fla. Bd. of Trs. v. Moore, 347

So. 3d 545, 547–48 (Fla. 2d DCA 2022).

ANALYSIS

“[D]eeply rooted in feudal notions of the divine right of kings,” sovereign

immunity stems from the premise that “the King can do no wrong.” Hughes

v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W.3d 352, 360 (Tenn.

2011) (quoting Cooper v. Rutherford County, 531 S.W.2d 783, 786 (Tenn.

1975) (Henry, J., dissenting)). Distilled to its essence, “[t]he doctrine . . .

provides that a sovereign cannot be sued without its own permission.” Am.

Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471

(Fla. 2005).

“In Florida, sovereign immunity is the rule, rather than the exception

. . . .” Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984).

The State and its subdivisions are shielded from civil liability unless

4 sovereign immunity is waived by legislative enactment or constitutional

amendment. See Art. X, § 13, Fla. Const. In this vein, “[t]he immunity of the

State of Florida and its agencies from liability for claims arising under Florida

law or common law is absolute absent a clear, specific, and unequivocal

waiver . . . .” State, Dep’t of Elder Affs. v. Caldwell, 199 So. 3d 1107, 1109

(Fla. 1st DCA 2016) (citing Klonis v. State, Dep’t of Revenue, 766 So. 2d

1186, 1189 (Fla. 1st DCA 2000)).

The Legislature has waived the State’s sovereign immunity from

liability for torts, “subject to the limitations specified in [section 768.28, Florida

Statutes (2022)].” § 768.28(1), Fla. Stat. That statute provides, in pertinent

part:

In accordance with [article X, section 13 of the Florida Constitution], the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

Id. (emphasis added). A corollary provision, section 768.28(9)(a), Florida

Statutes, further clarifies:

5 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.

The net effect of these two provisions is to insulate state employees

from personal liability for torts committed within the scope of employment,

absent the required scienter findings, while simultaneously allowing recourse

against the State. Together, these provisions are intended “to give immunity

to state employees and to make it clear that legal responsibility lies only with

the State itself under its limited waiver of sovereign immunity.” Andrew v.

Shands at Lake Shore, Inc., 970 So. 2d 887, 890 (Fla. 1st DCA 2007).

In analyzing whether an act occurred “within the scope of

employment,” Florida courts are governed by a tri-partite inquiry, consistent

with the Restatement (Second) of Agency section 228 (Am. L. Inst. 1958):

(1) [Whether] the conduct is of the kind the employee is hired to perform; (2) [whether] the conduct occurs substantially within the time and space limits authorized or required by the work to be performed; and (3) [whether] the conduct is activated at least in part by a purpose to serve the [employer].

Fernandez v. Fla. Nat’l Coll., Inc., 925 So. 2d 1096, 1100 (Fla. 3d DCA 2006)

(quoting Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla.

3d DCA 1990)). This inquiry ordinarily “presents a question for jury

6 determination.” Garcy v. Broward Process Servers, Inc., 583 So. 2d 714,

716 (Fla. 4th DCA 1991) (Glickstein, J., dissenting) (citing Gonpere Corp. v.

Rebull, 440 So. 2d 1307, 1307 (Fla. 3d DCA 1983)); see also De Martinez v.

Lamagno, 515 U.S. 417, 442 (1995) (Souter, J., dissenting) (“[L]itigating the

question whether an employee’s allegedly tortious acts fall within the scope

of employment will, of course, always require some evidence to show what

the acts were. Accordingly, there will always be overlap between evidence

going to the scope-of-employment determination and evidence bearing on

the underlying liability claimed by the plaintiff . . . .”); Restatement (Second)

of Agency § 229 cmt. a. (Am. L. Inst. 1958) (“The limits of the scope of

employment are dependent upon the facts of the particular case.”). But

where the application of sovereign immunity is readily apparent on the face

of the complaint, “it may be argued as a basis for a motion to dismiss.”

Rankin v. Colman, 476 So. 2d 234, 238 (Fla. 5th DCA 1985).

Against these principles, we turn to the case at hand. Signal Safe’s

theory of ordinary negligence is two-fold: (1) Dr. Zisis exceeded the scope of

the contracts in opining “about the performance and ineffectiveness of

[Signal Safe’s] and others’ devices to FDOT;” and (2) Dr. Zisis improperly

performed unlicensed engineering. We examine each theory, in turn.

7 Under the express terms of the original contract appended to the

operative complaint, Dr. Zisis was selected to serve as the principal

investigator. In that capacity, he was further obligated by subsequently

ratified work orders to perform testing and report his results to FDOT.

It is well-settled that “[e]xhibits attached to the complaint are

controlling.” Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d 490, 494

(Fla. 3d DCA 1994). Hence, to the extent the allegations in “the complaint

are contradicted by the exhibits, the plain meaning of the exhibits will

control.” Id. Applying these principles here, the bare allegation, contradicted

by the contractual documents, that Dr. Zisis exceeded the scope of his

employment in reporting the test results is insufficient to overcome sovereign

immunity.

Signal Safe further alleges “the development of a test method for

assessing the performance of vehicular traffic signal assemblies during

hurricane force winds . . . constitutes the practice of engineering.” Accepting

these allegations as true, as we must, Signal Safe has failed to plead any

nexus between the purported lack of licensure and the damages claimed in

the complaint. And, perhaps more importantly, the sole claim against Dr.

Zisis is one of ordinary negligence. This is insufficient to erode the broad

sovereign immunity conferred upon state employees.

8 The remaining allegations in the complaint establish that Dr. Zisis

performed the services during his employment and in his contractual

capacity as the principal investigator. Given that FIU was the financial

beneficiary of the contract, these facts, as alleged, demonstrate that any

tortious actions were both contemplated by and purposed to serve the

employer. See Weiss v. Jacobson, 62 So. 2d 904, 906 (Fla. 1953) (en banc).

Accordingly, we conclude the claim is barred by sovereign immunity.

Therefore, we reverse the order under review and remand with instructions

to dismiss the claim.

Reversed and remanded.