Third District Court of Appeal State of Florida
Opinion filed June 6, 2018.
________________
No. 3D15-2167 Lower Tribunal No. 14-24237 ________________
Miami-Dade County, Appellant,
vs.
Noel Pozos, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge.
Abigail Price-Williams, Miami-Dade County Attorney, and Eric K. Gressman, Joni A. Mosely and Sabrina Levin, Assistant County Attorneys, for appellant.
Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and Pamela Beckham, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
ON MOTION FOR REHEARING, CLARIFICATION, OR CERTIFICATION
PER CURIAM. Denied.
SUAREZ and EMAS, JJ., concur.
2 Miami-Dade County v. Noel Pozos Case No. 3D15-2167
ROTHENBERG, C.J. (dissenting from the denial of the motion for rehearing and rehearing en banc).
Noel Pozos seeks damages for injuries he sustained as a result of being shot
by an unidentified assailant while at a teenager’s birthday party at Benito Juarez
Park (“the Park”) in Homestead, Florida. The one-count complaint alleges that
Miami-Dade County (“the County”) owned, controlled, maintained, and operated
the park; Pozos was an invitee on the premises when he was shot; the County
assumed the duty to provide reasonable safety to Pozos; and the County breached
that duty by failing to provide reasonable safety measures and security personnel to
control, patrol, and guard against dangerous activity and/or to warn Pozos and
others of the potential danger.
The County filed a motion for summary judgment asserting that: (1) the
County did not have a duty to prevent the misconduct of third persons or to enforce
the law for the benefit of specific individuals; and (2) sovereign immunity bars this
action. After conducting an evidentiary hearing, the trial court denied the County’s
motion for summary judgment.
The majority concludes that this Court lacks jurisdiction under rule
9.130(a)(3)(C)(xi) to review the trial court’s order in the instant case because the
trial court “did not declare, make a finding, or otherwise determine that, as a matter
3 of law, the County was not entitled to sovereign immunity or immunity under
section 768.29(9).” I agree with the majority that, unless the trial court has
determined as a matter of law that the County is not entitled to sovereign
immunity, this Court lacks jurisdiction to review the trial court’s order denying the
County’s motion for summary judgment. However: (1) I disagree with the
majority’s interpretation of rule 9.130(a)(3)(C)(xi); (2) the case law does not
support the majority’s position; (3) the majority’s interpretation of the rule will
lead to an absurd result; and (4) the record clearly establishes that sovereign
immunity bars this action as a matter of law. Because the trial court’s order
denying the County’s motion for summary judgment constituted a legal
determination that the County was not entitled to sovereign immunity, we have
jurisdiction to review and to reverse the trial court’s order denying the County’s
motion for summary judgment. I, therefore, respectfully dissent from the majority
opinion dismissing the trial court’s order for lack of jurisdiction.
I am additionally writing to address the issuance of orders by some trial
judges on motions to dismiss and motions for summary judgment based on
sovereign immunity arguments which do not specify the basis for the denial,
thereby frustrating the actual purpose behind the amendment to rule 9.130, which
was to provide for interlocutory review of non-final orders that determine whether
a party is sovereignly immune from suit as a matter of law.
4 ANALYSIS
I. Jurisdiction under rule 9.130(a)(3)(C)(xi)
I begin with the Florida Supreme Court’s direction for interpreting
procedural rules. In Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 49
So. 3d 741, 742 (Fla. 2010), the Florida Supreme Court held that “[p]rocedural
rules should be given a construction calculated to further justice, not to frustrate
it.” (quoting Singletary v. State, 322 So. 2d 551, 555 (Fla. 1975)).
Rule 9.130(a)(3)(C)(xi) provides as follows: “Appeals to the district courts
of appeal of non-final orders are limited to those that . . . determine . . . that, as a
matter of law, a party is not entitled to sovereign immunity.” The majority
interprets this rule as including the requirement that an order “expressly”
determine entitlement to sovereign immunity, although the word “expressly” does
not appear anywhere in the rule. In reaching this interpretation the majority: (1)
relies on this Court’s opinion in Citizens Property Insurance Corp. v. Sosa, 215 So.
3d 90 (Fla. 3d DCA 2016), wherein this Court found it had no jurisdiction to
address Citizens’ interlocutory appeal because the record unequivocally reflected
that the trial court did not even reach the issue of sovereign immunity; (2) avoids
addressing the language found in two Florida Supreme Court cases that conflict
with the majority’s interpretation of the rule; and (3) relies on case law involving
workers’ compensation immunity, which, as will be discussed in this opinion,
differs from sovereign immunity. 5 A. Sosa
In Sosa, Citizens moved to strike the bad-faith allegations in the complaint
and to dismiss and/or strike counts II and III based on Citizens’ sovereign
immunity as a matter of law from bad-faith claims. Sosa, 215 So. 3d at 91.
However, as this Court noted in its opinion, the record reflected that the trial court
did not even reach the issue of sovereign immunity when it denied Citizens’
motion to dismiss. Id. Instead, the trial court abated or stayed any action on those
counts, and abated any consideration of Citizens’ claim of sovereign immunity
until the issues of coverage and liability were resolved. Id. Although the wisdom
of the trial court’s ruling is certainly questionable because sovereign immunity
should be addressed at the earliest opportunity, this Court clearly lacked
jurisdiction to review the trial court’s interlocutory order because the trial court did
not consider, much less determine, Citizens’ claim of sovereign immunity.
Because the trial court did not rule on Citizens’ sovereign immunity claim in Sosa,
the majority’s reliance on Sosa in support of its conclusion is misplaced.
B. The Florida Supreme Court
(1) Beach Community Bank
The majority’s interpretation of rule 9.130(a)(3)(C)(xi) is also in conflict
with the Florida Supreme Court’s interpretation of the rule. In Beach Community
Bank v. City of Freeport, Florida, 150 6 So. 3d 1111 (Fla. 2014), the Florida Supreme Court accepted jurisdiction to review
the First District Court of Appeal’s opinion in City of Freeport v. Beach
Community Bank, 108 So. 3d 684 (Fla. 1st DCA 2013). The City of Freeport
moved to dismiss the complaint based on its sovereign immunity from suit. The
trial court issued an order denying the City’s motion to dismiss. A review of the
record before the First District and the Florida Supreme Court reflects that the
order in question merely stated that the City’s “Motion to Dismiss with Prejudice
is denied and Defendant shall file a responsive pleading within 20 days of the
date of this Order.” (emphasis added). Importantly, the order denying the motion
to dismiss did not state that the trial court had determined, as a matter of law, that
the City was not entitled to sovereign immunity.
The City filed a petition for writ of certiorari to review the non-final order
on the basis that the City was entitled to sovereign immunity as a matter of law and
thus the trial court departed from the essential requirements of law by denying its
motion to dismiss. City of Freeport, 108 So. 3d at 686. The First District agreed
with the City, granted certiorari relief, and granted the petition. Id. On review to
the Florida Supreme Court, the original question was whether the District Court
could exercise certiorari jurisdiction to review the trial court’s non-final order.
Beach Cmty. Bank, 150 So. 3d at 1112. However, because the Florida Bar
Appellate Court Rules Committee’s proposed amendment to rule 9.130 was
pending before the Florida Supreme 7 Court and the Court concluded that “this case falls squarely within the new rule
amendment,” the Court determined “that the City should be entitled to the benefit
of the new rule.” Id. at 1113. Specifically, the Court held that the proposed
amendment “answers the question that the City asks this Court to confront in this
case. This amendment permits district courts to review non-final orders of
decisions determining entitlement to sovereign immunity where the case
involves a pure legal question.” Id. (emphasis added).
Importantly, although the trial court’s order simply denied the City’s motion
to dismiss, ordered the City to file responsive pleadings within twenty days, and
did not include the language that the denial of the motion to dismiss on the basis of
sovereign immunity was a denial as a matter of law, the First District nevertheless
reviewed the order and determined that the City was entitled to sovereign
immunity, and the Florida Supreme Court reviewed the same order and agreed.
Beach Cmty. Bank, 150 So. 3d at 1114. Thus, the Florida Supreme Court quashed
the First District’s decision to the extent that it resolved the issue based on
certiorari review, but approved the decision based on the amendment to rule 9.130
and issued its opinion on the very same day that it approved the amendment to rule
9.130. Id. at 1114-15.
(2) Keck
The Florida Supreme Court’s opinion in Keck v. Eminisor, 104 So. 3d 359
(Fla. 2012), also suggests that the 8 majority’s interpretation of rule 9.130(a)(3)(C)(xi) is incorrect. In Keck, the trial
court issued an order denying Keck’s motion for summary judgment based on his
claim of immunity under section 786.28(9)(a). Keck sought review, but because
rule 9.130 had not yet been amended to permit interlocutory appeals of trial court
orders denying summary judgment, Keck petitioned the First District for a writ of
certiorari. Keck, 104 So. 3d at 362. Because the First District concluded that
certiorari review was not proper, it denied the petition without addressing the
merits of the petition. Id. The First District, however, certified a question to the
Florida Supreme Court; the Florida Supreme Court accepted jurisdiction; and the
Court rephrased the certified question as follows:
Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law.
Id. at 360-61.
In answering the certified question, the Florida Supreme Court noted that in
Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether
to expand the category of non-final appealable orders to include orders denying
summary judgment based on a qualified immunity claim,” and because of the
nature of the rights involved, the Court concluded that interlocutory review must
be available to an individual whose claim of qualified immunity was denied by the
trial court. Id. at 364.
9 The Court specifically noted that:
Because qualified immunity of public officials involves immunity from suit rather than a mere defense to liability, we reasoned that immunity from suit is effectively lost if a case is erroneously permitted to go to trial because a trial court’s order denying qualified immunity cannot be reviewed on appeal from a final judgment as the public official cannot be re-immunized if erroneously required to stand trial or face the other burdens of litigation.
Id. at 364 (internal quotations omitted) (citing Tucker, 648 So. 2d at 1189)
(emphasis added). The Florida Supreme Court went on to say that, in Tucker,
[w]e stressed that if orders denying summary judgment based upon claims of qualified immunity are not subject to interlocutory review, the qualified immunity of public officials is illusory and the very policy that animates the decision to afford such immunity is thwarted. We held that an order denying summary judgment based upon a claim of qualified immunity should be subject to interlocutory review to the extent that the order turns on an issue of law.
Keck, 104 So. 3d at 365 (internal quotations and citations omitted).
The Florida Supreme Court in Keck, therefore, concluded that:
[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant. For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a) is subject to interlocutory review where the issue turns on a question of law. 10 Keck, 104 So. 3d at 366 (emphasis added).
Based on the Florida Supreme Court’s ruling in Keck, Justice Pariente, in
her concurring opinion, recommended that the Florida Bar Appellate Court Rules
Committee submit a proposed amendment and that when it addressed the rule
amendment, that it do so more broadly to address interlocutory appeals of
immunity claims in a comprehensive manner. Id. at 369.
While I recognize that in Keck the Florida Supreme Court was addressing
individual immunity under section 768.28(9)(a), rather than sovereign immunity,
Justice Pariente asked the Florida Bar Appellate Court Rules Committee to address
interlocutory appeals of immunity claims in a comprehensive manner, and rule
9.130(a)(3)(C)(xi) was amended in direct response to Justice Pariente’s request. It
also makes no sense to treat orders that deny an individual’s immunity any
differently than orders that deny an entity’s immunity. In both instances, the
defendant who is entitled to immunity as a matter of law should not be forced to
litigate the plaintiff’s claims simply because the trial court issues an unelaborated
order.
C. The majority’s reliance on cases involving workers’ compensation immunity is misplaced
In support of its argument that the trial court must expressly state in its non-
final order that it is determining, as a matter of law, that a party is not entitled to
11 sovereign immunity, the majority relies on cases addressing workers’
compensation immunity under rule 9.130(a)(3)(C)(v). Rule 9.130(a)(3)(C)(v)
states that a party may appeal a non-final order determining “that, as a matter of
law, a party is not entitled to workers’ compensation immunity.” The Florida
Supreme Court, in construing rule 9.130(a)(3)(C)(v), has stated that “[n]onfinal
orders denying summary judgment on a claim of workers’ compensation immunity
are not appealable unless the trial court order specifically states that, as a matter of
law, such a defense is not available to a party.” Hastings v. Demming, 694 So. 2d
718, 720 (Fla. 1997) (emphasis added); Reeves v. Fleetwood Homes of Fla., Inc.,
889 So. 2d 812, 821 (Fla. 2004) (stating that “a district court does not have
jurisdiction to review a nonfinal order denying summary final judgment unless the
trial court’s order explicitly states that the defendant will not be entitled to present
a workers’ compensation immunity defense at trial”) (emphasis added).
This case law is highly distinguishable, as is rule 9.130(a)(3)(C)(v). Unlike a
claim for entitlement to sovereign immunity, workers’ compensation immunity
is an affirmative defense, involving factual issues that typically preclude a
dismissal at the pleading stage. See Gen. Cinema Beverages of Miami, Inc. v.
Mortimer, 689 So. 2d 276, 277 (Fla. 3d DCA 1995) (“Establishment of workers’
compensation immunity usually requires the employer to bring forth facts from
outside the four corners of the complaint, which necessarily requires a motion for
summary judgment.”); Eiler v. Camp 12 Dresser & McKee, Inc., 542 So. 2d 441, 442 (Fla. 5th DCA 1989) (stating that “the
exclusivity provision set forth in section 440.11 of the Workers’ Compensation Act
is an affirmative defense which cannot be raised by a motion to dismiss unless the
allegations of a prior pleading in the case demonstrate the existence of such a
defense”); see also Ruiz v. Aerorep Grp. Corp., 941 So. 2d 505, 508 (Fla. 3d DCA
2006) (“Although workers’ compensation immunity usually cannot be raised in a
motion to dismiss, an exception exists allowing the defense to be raised in a motion
to dismiss where the defense appears on the face of the complaint.”).
Thus, in the context of an order denying, without explanation, a motion that
is premised on the affirmative defense of workers’ compensation immunity, it may
be difficult to determine whether the trial court denied a party’s claim for workers’
compensation immunity due to factual issues that must be resolved prior to
adjudicating the legal issue of immunity, or whether the trial court determined, as a
matter of law, that a party is not entitled to the workers’ compensation immunity.
There are, however, cases outside of the workers’ compensation context,
where a trial court can determine, as a matter of law, whether a defendant is
entitled to sovereign immunity, and where it is not necessary to resolve factual
issues.
Additionally, even in the workers’ compensation immunity context, at least
one of our sister courts has raised a significant concern about parties and trial
courts intentionally obfuscating the real 13 justifications for orders denying a party’s claim for workers’ compensation
immunity. In Martin Electronics, Inc. v. Glombowski, 705 So. 2d 26 (Fla. 1st DCA
1997) (en banc), the First District Court of Appeal held that it lacked appellate
jurisdiction to review a non-final order denying a motion to dismiss. Id. at 27. The
trial court below determined that there were insufficient facts to decide the issue of
workers’ compensation immunity, but specifically noted that “[t]his determination
does not mean that this Court may not ultimately be presented with sufficient facts
to determine this issue as a matter of law.” Id. at 28. On appeal, the majority
opinion held, in applying the Florida Supreme Court’s decision in Hastings, that a
non-final order denying a motion to dismiss based on workers’ compensation
immunity must expressly determine, as a matter of law, that workers’
compensation immunity is unavailable. Id. at 29-30. However, Judge Wolf,
specially concurring, raised a significant concern regarding appeals from orders
denying motions to dismiss, as opposed to orders denying motions for summary
judgment, which deny a party’s claim for workers’ compensation immunity:
In these cases, there can be no disputed facts. The decision concerning the motion must assume that all the facts in the complaint are taken as true and all inferences are drawn in favor of the plaintiff. Thus, the denial of the motion cannot be based on disputed facts, but must constitute a legal ruling on a given set of facts.
Id. at 31-32 (citation omitted).
14 Thus, any analogy between rule 9.130(a)(3)(C)(xi) and rule
9.130(a)(3)(C)(v) and reliance on cases addressing workers’ compensation law is
unpersuasive.
D. The majority’s interpretation of the rule will lead to an absurd result
In Keck, 104 So. 3d at 366, the Florida Supreme Court held that “an order
denying summary judgment based on a claim of individual immunity under
section 768.28(9)(a) is subject to interlocutory review where the issue turns on
a question of law.” (emphasis added). The Court did not say, nor hold, that
interlocutory review should be limited to orders that expressly specify the basis for
the trial court’s ruling. If it is clear that a trial court’s denial of a motion to dismiss
or a motion for summary judgment is a determination that, as a matter of law, a
party is not entitled to sovereign immunity, then the order is subject to appellate
review.
To hold otherwise would defeat the purpose of the amendment to rule 9.130.
See Strax, 49 So. 3d at 742 (holding that “[p]rocedural rules should be given a
construction calculated to further justice, not to frustrate it”) (quoting Singletary
322 So. 2d at 555). The purpose behind amending rule 9.130 to include rule
9.130(a)(3)(C)(xi) was to protect parties who are entitled to sovereign immunity
from suit as a matter of law. To construe rule 9.130(a)(3)(C)(xi) so narrowly as to
require a party to continue litigating a case when, as a matter of law, it is
sovereignly immune from suit, would 15 render the rule change meaningless. As the Florida Supreme Court stated in Keck,
104 So. 3d at 366:
[I]f a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant. For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a) is subject to interlocutory review where the issue turns on a question of law.
(emphasis added).
In order for a party’s entitlement to sovereign immunity to provide any
meaningful protection, the party must have the ability to challenge the trial court’s
determination that, as a matter of law, it is not entitled to immunity before and
without being required to defend itself against the merits of the claims.
The majority concludes that, because the trial court’s order does not
articulate the basis for its ruling, there could be a number of reasons why the trial
court denied the County’s motion for summary judgment. For example, the
majority posits that there may have been disputed issues of material fact precluding
summary judgment. While I agree that the record may support a finding that there
are disputed issues of material fact as to whether the County owed Pozos a duty of
care, the record does not suggest that 16 there were disputed issues of material fact as to whether the County is sovereignly
immune from suit. Thus, the determination as to whether the County is
sovereignly immune from suit is a legal determination, not a factual determination,
in this case.
E. The majority and the trial court conflate the questions of duty and sovereign immunity
As will be discussed at length below, whether a governmental entity may be
held tortiously liable involves a two-prong analysis: (1) whether the defendant
owes a duty of care to the plaintiff; and (2) whether the defendant is sovereignly
immune from suit. Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009). Thus, even
if there were disputed issues of material fact as to whether the County owed Pozos
a duty of care, if there were no disputed issues of material fact regarding the
immunity prong, and the undisputed evidence reflects that the County is entitled to
sovereign immunity as a matter of law, then the trial court was required to grant
the County’s motion for summary judgment, and this Court has jurisdiction to
review the trial court’s determination to the contrary.
When addressing the issue of governmental tort liability under Florida law,
the court’s “duty analysis is conceptually distinct from any later inquiry regarding
whether the governmental entity remains sovereignly immune from suit
notwithstanding the legislative waiver present in section 768.28, Florida Statutes.”
Wallace, 3 So. 3d at 1044 (emphasis in 17 the original) (footnote omitted). The analysis is a two-prong analysis. “If no duty
of care is owed with respect to alleged negligent conduct, then there is no
governmental liability, and the question of whether the sovereign should be
immune from suit need not be reached.” Pollock v. Fla. Dep’t of Highway Patrol,
882 So. 2d 928, 932 (Fla. 2004); see also Breaux v. City of Miami Beach, 899 So.
2d 1059, 1063 (Fla. 2005) (noting that “[i]n cases involving governmental tort
liability, we generally determine whether the defendant owes a duty of care to the
plaintiff before we address whether the governmental entity is immune from
liability”); Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003)
(identifying “duty of care” as the first required element of a negligence claim);
Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999) (“A threshold matter is
whether the [defendant] had a duty to act with care toward the decedents . . . .”).
“[T]he absence of a duty of care between the defendant and the plaintiff results in
a lack of liability, not application of immunity from suit.” Wallace, 3 So. 3d at
1044 (emphasis in original). In other words, the absence of a duty of care renders
the defendant not liable as a matter of law, and the trial court does not need to
address whether the governmental entity is sovereignly immune from suit.
Wallace, 3 So. 3d at 1045.
The same holds true for sovereign immunity. If the defendant is sovereignly
immune from suit, then the trial court need not address whether the defendant
owed the plaintiff a duty of care because 18 the analysis has two-prongs. Even where the plaintiff has established the existence
of the governmental entity’s duty of care towards the plaintiff, or there are material
issues of disputed fact as to the governmental entity’s duty of care, if the
governmental entity is entitled to sovereign immunity, it is shielded from legal
action and liability. Wallace, 3 So. 3d at 1044; see also Henderson, 737 So. 2d at
535 (concluding that even “[a]ssuming a duty is owed, we must then determine
whether sovereign immunity bars an action for an alleged breach of that duty”).
In Wallace, 3 So. 3d at 1045, the Florida Supreme Court warned against
conflating the two separate prongs of the analysis, and noted that in Miami-Dade
County v. Fente, 949 So. 2d 1101, 1103-05 (Fla. 3d DCA 2007), and Seguine v.
City of Miami, 627 So. 2d 14, 17 (Fla. 3d DCA 1993), this Court had conflated the
issue of whether the government owed a duty of care to the plaintiff with the
separate and distinct issue of whether the doctrine of sovereign immunity shields
the government from tort liability. See also City of Belle Glade v. Woodson, 731
So. 2d 797 (Fla. 4th DCA 1999) (similarly conflating duty of care with sovereign
immunity). The record demonstrates that the County established under the second
prong of the analysis that, as a matter of law, it is sovereignly immune from suit.
Thus, the issue of whether the County owed Pozos a duty of care is immaterial and
the trial court erred by denying the County’s motion for summary judgment.
II. The County is entitled to sovereign immunity as a matter of law
A. Generally 19 Under the two-prong analysis, the County is immune from liability if the
County establishes either that it owed Pozos no duty of care or the County
demonstrates that it is sovereignly immune from suit. In Trianon Park
Condominium Ass’n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985), the Florida
Supreme Court issued a comprehensive opinion regarding governmental actors and
alleged tort victims. Wallace, 3 So. 3d at 1047. To summarize, the Trianon Court
made the following findings.
1. First, “for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care.” Trianon, 468 So. 2d at 917 (internal citations omitted). 2. Second, “the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities.” Id. Thus, governmental entities have the identical duties of care as private persons do. Id. 3. Third, “there is not now, nor has there ever been any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals. In addition, there is no common law duty to prevent the misconduct of third persons.” Id. at 918 4. Fourth, “under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.” Id. Specifically, the Court held that “[j]udicial intervention through private tort suits into the realm of discretionary decisions relating to basic governmental functions would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine.” Id. 5. Lastly, “certain discretionary functions of government are inherent in the act of governing and are immune from suit. It is ‘the nature 20 of the conduct, rather than the status of the actor,’ that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability.” Id. (internal citations omitted).
The Florida Supreme Court’s finding that “certain discretionary functions of
government are inherent in the act of governing and are immune from suit” is,
perhaps, the most difficult finding to apply, especially since the demarcation
between discretionary and other executive or administrative decisions must be
determined on a case-by-case basis. Id. Thus, the Court set forth a list of criteria to
assist the courts when determining whether the governmental conduct eminates
from the discretionary planning or the judgment phase of government, which is not
subject to tort liability, or during the operational phase of government. If the
governmental conduct or decision was operational, tort liability may attach if there
exists either a common law or statutory duty of care and there exists no sovereign
immunity for the governmental conduct or decision. Id.
The four categories regarding governmental functions are as follows:
I. Legislative, Permitting, Licensing, and Executive Officer Functions. Clearly, the legislature, commissions, boards, city councils, and executive officers, by their enactment of, or failure to enact, laws or regulations, or by their issuance of, or refusal to issue, licenses, permits, variances, or directives, are acting pursuant to basic governmental functions performed by the legislative or executive branches of government. The judicial branch has no authority to interfere with the conduct of those functions unless they violate a constitutional or statutory provision. There has never been a common law duty establishing a duty of care with regard to how these various governmental bodies or officials should carry out these functions. 21 These actions are inherent in the act of governing.
II. Enforcement of Laws and Protection of the Public Safety. How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials, as well as the discretionary authority given fire protection agencies to suppress fires. This same discretionary power to enforce compliance with the law is given to regulatory officials . . . .
The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care.
III. Capital Improvement and Property Control Functions. As this Court has made clear in prior cases, there is no liability for the failure of a governmental entity to build, expand, or modernize capital improvements such as buildings and roads. . . . On the other hand, once a governmental entity builds or takes control of property or an improvement, it has the same common law duty as a private person to properly maintain and operate the property.
IV. Providing Professional, Educational, and General Services. Providing professional, educational, and general services for the health and welfare of citizens is distinguishable from the discretionary power to enforce compliance with laws passed under the police power of this state. These service activities, such as medical and educational services, are performed by private persons as well as governmental entities, and common law duties of care clearly exist. Whether there are sufficient doctors provided to a state medical facility may be a 22 discretionary judgmental decision for which the governmental entity would not be subject to tort liability. Malpractice in the rendering of specific medical services, however, would clearly breach existing common law duties and would render the governmental entity liable in tort.
Id. at 919-921 (italics in original; internal citations omitted).
In Wallace, the Florida Supreme Court explained that the activities listed in
Category I pertain to the public at large, and thus, they do not support a duty of
care toward individual plaintiffs. Id. at 1047. The same is true for activities falling
within Category II, unless it can be shown that the governmental actor owed the
alleged tort victim a “special duty of care.” Id. at 1047-48. On the other hand,
Category III and IV activities may generally subject the government to liability.
Id. at 1048.
B. Sovereign Immunity
As stated earlier, even where a duty is owed, sovereign immunity may bar an
action for an alleged breach of that duty, see Pollock, 882 So. 2d at 932-33;
Henderson, 737 So. 2d at 535; Kaisner, 543 So. 2d at 734, because in Florida,
“governmental immunity derives entirely from the doctrine of separation of
powers, not from a duty of care or from any statutory basis.” Kaisner, 543 So. 2d
at 737.
When addressing the test for determining when a governmental entity enjoys
sovereign immunity, the Florida Supreme Court held “that the separation-of-
powers provision present in article II, 23 section 3 of the Florida Constitution requires that ‘certain [quasi-legislative]
policy-making, planning or judgmental governmental functions cannot be the
subject of traditional tort liability.”’ Wallace, 3 So. 3d at 1053 (quoting
Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010, 1020 (Fla.
1979)). On the other hand, decisions made at the operational level—decisions or
actions implementing policy, planning, or judgmental governmental functions—
generally do not enjoy sovereign immunity. Commercial Carrier, 371 So. 2d at
1021. “Planning level functions are generally interpreted to be those requiring
basic policy decisions, while operational level functions are those that implement
policy.” Id. (footnote omitted).
While nearly every endeavor involves some level of discretion, it is the
governmental quasi-legislative discretion exercised at the policy-making or
planning level which is protected from tort liability. Wallace, 3 So. 3d at 1053;
Yamuni, 529 So. 2d at 260. Thus, in addition to the five basic principles identified
by the Florida Supreme Court in Trianon, which have been listed at the beginning
of this analysis, the Court recognized that “there were areas of government 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.” Trianon, 468 So. 2d at 918 (internal citations and quotation marks
omitted). Further, “certain discretionary 24 governmental functions remain immune from tort liability . . . because certain
functions of coordinate branches of government may not be subjected to scrutiny
by judge or jury as to the wisdom of their performance.” Id. (internal citations and
quotation marks omitted).
C. Applying the Law to the Instant Case
Even if the trial court found that the County owed Pozos a duty of care or
that there were material facts in dispute or facts that needed to be resolved by the
jury as to duty, if the County’s conduct, actions, or decisions resulted from its
discretionary policy-making or planning functions, then the County is sovereignly
immune from suit as a matter of law.
The record reflects the following. On August 24, 2012, Eli Salgado
purchased a Miami-Dade County Park Foundation membership for $149. This
membership included a coupon book containing several promotional items,
including two tickets to the zoo, a 50% discount coupon for golf, and a coupon for
the use of a park shelter without payment of the requisite rental fee. Along with
Salgado’s membership and the coupon booklet, Salgado was given a copy of the
Park’s rules and regulations to be followed when renting a facility at the Park.
These rules contained a section regarding when permits and off-duty officers are
required, and provided notice to Salgado that it was his responsibility to obtain the
correct permit(s) and to hire off-duty police officers under certain circumstances.
For example, these rules provided that 25 when a D.J., live music, or speakers are going to be used, the person renting the
facility or hosting the event at the Park must obtain a broadcast permit and hire and
pay for off-duty police officers. Depending on the type or size of the party or
event, other permits are required, and again, Salgado must hire off-duty police
officers to provide security for the event. Specifically, the rules and regulations
provided that if Salgado was expecting over a certain number of guests, then he
would be required to hire two off-duty police officers and obtain a special events
permit. The rules and regulations additionally stated that the Park’s employees
would not be responsible for providing any of these items.
When Salgado rented a shelter at the Park for his September 22, 2012
birthday party, he simply asked to rent the shelter and used the free rental coupon
contained in his membership coupon booklet. He did not advise anyone that he
was going to hire a D.J., and he did not obtain any permits or hire any off-duty
police officers. Instead, he procured two private security officers to provide
security at the party.
The only Park employee present for this after-hours private party was
Diogenes Martin, a part-time Park Service Aide, whose responsibilities were to
clean the restrooms and the Park before and after an event, to keep the area clean,
and change the trash bags during the event. Also present was a teenage volunteer
who was helping Martin that night. Victor Jenkins, the Goulds South Dade Zone
Manager, who is responsible for 26 managing seventeen parks for Miami-Dade County Parks and Recreation, testified
in his deposition that the County has only budgeted for twenty-seven park security
officers to service all of the recreational facilities throughout the County. These
officers are directed to mainly patrol the beaches and marinas on the weekends.
Because the County does not provide security at these private parties and events, it
requires the patron renting a park facility to contact the police department and hire
off-duty officers for certain events.
Martin testified in his deposition that he performed his duties as required on
the night of the party. He made sure the restrooms and area were clean, the trash
was properly disposed of, and the trash bags were changed when the trash cans
became full. He explained that Salgado was celebrating his eighteenth birthday,
and the party consisted of mostly sixteen-to-eighteen-year-olds who were eating,
dancing, and just having a good time. Salgado’s parents were present, and there
were also two large men wearing “Security” T-shirts present who appeared to be
patrolling the area and providing security for the party. He did not see anyone
using drugs, fighting, or having a confrontation with anyone. Everything was calm
and everyone seemed to be having a good time when all of a sudden, at around
10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the
kids had been shot, he called 911 and then his supervisor.
Inga Portilla, a Park Manager, confirmed that Park Service Aides are only
responsible for maintenance within the 27 Park. They do not provide security, do not check to see if the renter has obtained
the required permits, are not trained in crime prevention, and are not authorized to
“police” the area. She also confirmed that after Salgado paid his membership fee,
a booklet was sent to his house containing the rental coupon and a copy of the
Park’s rules and regulations. These rules and regulations are also posted at the
Park. Portilla explained that “once we rent the facility . . . we don’t have anything
to do with direct involvement of the parties,” and that it was Salgado’s
responsibility to follow the rules, obtain the necessary permits, and hire off-duty
police officers if he was having a party that required off-duty police officers, as
“[w]e are not responsible for the party.”
Pozos presented no evidence to refute any of the above referenced evidence.
The affidavit/statement provided by Salgado, the renter and host of the party, does
not refute the testimony of the park employees or the physical evidence. Salgado
did not dispute that he had received a copy of the Park’s rules and regulations
related to rentals of the Park’s facilities. He merely stated that when he rented the
pavilion, he was not advised that he needed to hire off-duty officers and that he
did not recall if anyone had asked him how many people he expected would be
attending the party.
Therefore, the unrefuted evidence supports the legal conclusion that the
County made a discretionary policy/planning decision to allow patrons of its parks
to rent its facilities for private parties or 28 events. Relying on its legislative/permitting/licensing authority, the County
enacted certain rules and regulations governing the rental and use of its parks and
the park’s facilities. Based on the County’s limited resources, it exercised its
discretion to assign only twenty-seven officers to the Parks and Recreation
Department to service all of the parks, beaches, and County-owned recreational
areas located throughout the county and to direct those officers to primarily patrol
the public beaches and marinas on the weekends, rather than directing them to
patrol and monitor private parties being held in public parks. The County,
therefore, included certain restrictions and requirements within its enacted rules
and regulations and rental agreements, which the party or event host was required
to follow. Among other things, these rules and regulations required the renter to
go to the police department and (1) obtain a broadcast permit if using a D.J., live
music, or sound equipment; (2) obtain a special event permit if over 200 guests
were expected to attend; and (3) hire off-duty police officers under each of these
scenarios. The rules and regulations and the rental agreement specified that the
County’s park employees would not be responsible for the failure to meet any of
these requirements.
When Salgado purchased his Park membership, he was sent a copy of these
rules and regulations. Salgado, however, did not abide by these rules and
regulations when he used his free coupon to rent a pavilion for his birthday party.
Although he had a D.J. and sound 29 equipment at the party, he did not obtain a broadcast permit or hire off-duty police
officers from a police department. Whether he was additionally required to obtain
a special event permit and hire off-duty police officers based on the number of
guests he expected to attend is unclear because the evidence does not reflect
whether Salgado expected so many people to attend and whether there were more
than 200 guests at the party. Nevertheless, this issue is irrelevant because, based
on Salgado’s use of a D.J. and sound equipment, he was required to hire two off-
duty police officers anyway. However, instead of obtaining the necessary
permit(s) and hiring off-duty police officers, Salgado hired two private-duty
security officers.
Whether Salgado’s failure to follow the County’s rules and regulations was
the proximate cause of the shooting during his party is, however, not the issue
before us. Setting aside the question of whether the County even had the duty to
protect Salgado’s invitees against the unlawful conduct of a third party during
Salgado’s party at the Park, the County was sovereignly immune from tort liability
as a matter of law. As stated earlier, that is because if the County demonstrated
that either it did not owe the plaintiff a duty of care or the County’s decision,
omission, or conduct was as a result of its quasi-legislative discretionary policy or
planning decision, then the County would be sovereignly immune from tort
liability. Wallace, 3 So. 3d at 1044; Henderson, 737 So. 2d at 535; Kaiser, 543 So.
2d at 734; Trianon, 468 So. 2d at 917- 21. 30 Because the County’s decisions were quasi-legislative discretionary policy
or planning decisions it is sovereignly immune and thus, it was entitled to
summary judgment as a matter of law. This conclusion is supported by prior
decisions from the Florida Supreme Court, this Court, and our sister courts.
For example, in Delgado v. City of Miami Beach, 518 So. 2d 968 (Fla. 3d
DCA 1988), this Court affirmed the trial court’s order granting the City of Miami
Beach’s motion for summary judgment after concluding that the City of Miami
Beach was protected from liability under the doctrine of sovereign immunity as a
matter of law. Delgado was injured when someone in the crowd ignited fireworks
that struck and burned Delgado’s leg while he was attending a concert and a
fireworks display sponsored by the City of Miami Beach. Delgado claimed that
the City of Miami Beach, which had sponsored the event, breached its duty by
failing to prohibit the attendees from possessing and detonating their own
fireworks. This Court, however, concluded that the City of Miami Beach’s
“actions fell within the planning-level, discretionary function of government, for
which no liability attaches.” Id. at 969. Specifically, this Court held that “[t]he
manner in which a city, through its police officers, exercises discretionary
authority to enforce compliance with the laws and protect the public safety, falls
squarely within the city’s power to govern. Accordingly, the city is protected
under the doctrine of sovereign immunity.” Id. (citing Trianon, Commercial
Carrier, and other cases). 31 As in Delgado, the County’s actions in the instant case—not assigning
officers to patrol or be present at private parties or events held in its public parks,
but to, instead, require those who rent its park facilities to obtain permits and hire
off-duty officers under certain circumstances—was a discretionary planning and/or
policy decision. It was a governmental decision made in the exercise of its
discretionary authority regarding the manner in which compliance and enforcement
of the law and the protection of the public would be effectuated. The manner in
which the County notified those who rented its park facilities of their obligations
and responsibilities was also a planning/policy discretionary governmental
decision. Because parks such as Benito Juarez Park were “un-manned” parks with
only part-time maintenance employees in attendance, the County, in the exercise of
its discretion, put into place a policy requiring the County to notify each individual
who purchased a Park membership or rented a Park facility by providing him/her
with a copy of the Park’s rules and regulations. The unrefuted evidence in this
case is that these rules and regulations were sent to the Salgado’s home along with
his coupon book after he purchased his Park membership. Because these decisions
fell squarely within the County’s power to govern, they are protected as a matter of
law under the doctrine of sovereign immunity.
The decisions of the County regarding where and how to deploy its available
manpower (sworn police officers) is a discretionary or planning function. And, as
the Florida Supreme Court stated in 32 Trianon, “under the constitutional doctrine of separation of powers, the judicial
branch must not interfere with the discretionary functions of the legislative or
executive branches of government absent a violation of constitutional or statutory
rights.” Trianon, 468 So. 2d at 918. “While sovereign immunity is a silent issue
here, we ought not lose sight of the fact that inherent in the right to exercise police
powers is the right to determine strategy and tactics for the deployment of those
powers.” Wong v. City of Miami, 237 So. 2d 132, 134 (Fla. 1970); see also
Commercial Carrier, 371 So. 2d at 1020 (quoting Wong, 237 So. 2d at 134):
The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed . . . .
The County’s decisions as to how many officers to employ and allocate to
patrol the County’s recreational facilities, whether to rent its facility for the use of
a private party or function, what rules and regulations should be adopted for that
purpose, and the responsibilities and duties to be borne by the renter, are all quasi-
legislative discretionary policy/planning decisions. Thus, the County is
sovereignly immune from suit, and therefore, it was entitled to summary judgment
as a matter of law. By denying the County’s motion for summary judgment and
rejecting the County’s sovereign immunity argument, the trial court determined as
a matter of law, that the County is not entitled to sovereign immunity.
33 CONCLUSION
The determination of whether a governmental entity is immune from
liability involves a two-prong analysis: (1) whether the governmental entity owed
the plaintiff a duty of care; and (2) whether sovereign immunity bars the actions
based on an alleged breach of that duty. If the governmental entity establishes
either that it owed no duty to the plaintiff or it was entitled to sovereign immunity,
it is entitled to summary judgment.
Although the trial court’s order merely denies the County’s motion for
summary judgment, the failure to specify the basis for that denial is not fatal
because, even if the County owed the plaintiff a duty of care or there was a
material factual dispute as to the issue of duty, the County is sovereignly immune
from suit as a matter of law because it established the second prong of the
analysis—that the County’s decisions in this case were discretionary, quasi-
legislative, planning, or policy decisions. Because the facts relating to sovereign
immunity are not in dispute, the denial of the County’s motion for summary
judgment on the basis of sovereign immunity was determined by the trial court as
a matter of law. We, therefore, have jurisdiction to review that determination.
Because the record establishes that the County is sovereignly immune from suit as
a matter of law, the trial court erred by denying the County’s motion for summary
judgment. Accordingly, I would reverse the order on appeal and remand for entry
of an order granting summary judgment in favor of the County. 34 III. Recommendation to the trial courts
The protection from suit is a valuable protection. If a defendant who is
entitled to immunity from suit is erroneously required to litigate the case and to
stand trial, that individual or entity has lost the right bestowed by statute to be
protected from even being named as a defendant, thereby rendering the statutory
protection meaningless. Keck, 104 So. 3d at 366. This problem can be easily
remedied if the trial courts simply issue orders that clarify the trial court’s ruling
when ruling on a motion to dismiss or a motion for summary judgment where the
issue of immunity is raised and litigated. The order should state whether the
motion for dismissal or for summary judgment on the claim of immunity is being
denied as a matter of law, and, if not, why not. Appellate review should not be
thwarted by the issuance of an unelaborated order.