Talmadge ex rel. Talmadge v. District School Board of Lake County

District Court of Appeal of Florida

Talmadge ex rel. Talmadge v. District School Board of Lake County

406 So. 2d 1127, 1 Educ. L. Rep. 1046, 1981 Fla. App. LEXIS 19957

CourtDistrict Court of Appeal of Florida

DecidedMay 27, 1981

DocketNo. 80-1263

StatusPublished

This text of 406 So. 2d 1127 (Talmadge ex rel. Talmadge v. District School Board of Lake County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Talmadge ex rel. Talmadge v. District School Board of Lake County, 406 So. 2d 1127, 1 Educ. L. Rep. 1046, 1981 Fla. App. LEXIS 19957 (Fla. Ct. App. 1981).

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Opinion

COBB, Judge.

In 1976, Billy Talmadge, on behalf of his son, Robert Talmadge, sued the District School Board of Lake County, and its insurer, Auto Owners Insurance Company, and a physical education instructor, Sonny Walters, for an injury that occurred to Robert Talmadge during physical education class.

Sonny Walters moved to dismiss on the ground that there was no cause of action against him due to section 768.28(9), Florida Statutes (1975). The trial court granted that motion to dismiss and Talmadge appealed to the Second District Court of Appeal. The Second District Court of Appeal found that section 768.28(9), Florida Statutes (1975), did not operate as a bar against suing an employee of the Board, but only acted to indemnify such employee for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment. Talmadge v. District School Board, 355 So.2d 502 (Fla. 2d DCA 1978). The Florida Supreme Court affirmed that decision. District School [1128]*1128Board v. Talmadge, 381 So,2d 698 (Fla.1980).

Shortly thereafter, the Florida Legislature passed Chapter 80-271, Laws of Florida, which amended section 768.28(9), Florida Statutes, so that it barred actions against employees of the state or its subdivisions for acts committed within the scope of employment unless they were done in bad faith or with a malicious purpose. The act further provided that it “shall apply to all actions pending in the trial or appellate courts from the date this act shall take effect and to all actions thereafter initiated.” The act took effect on July 1, 1980.

Subsequent to this amendment, Sonny Walters again moved to dismiss the complaint. The trial court granted that motion. Appellant is appealing that order on the ground that section 768.28(9), Florida Statutes (Supp.1980), is unconstitutional as applied to the appellant.

Retroactive legislation is usually invalid if it impairs a vested right. 10 Fla.Jur.2d Constitutional Law § 296 (1979), and cases cited therein. To the extent that Chapter 80-271, Laws of Florida, amended section 768.28(9), Florida Statutes (Supp. 1980), to apply retroactively, it is unconstitutional. State Dept. of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981), rehearing denied (Fla. Sept. 24, 1981).

Accordingly, we reverse the trial court’s order granting the motion to dismiss.

SHARP and COWART, JJ., concur.

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COBB, Judge.

In 1976, Billy Talmadge, on behalf of his son, Robert Talmadge, sued the District School Board of Lake County, and its insurer, Auto Owners Insurance Company, and a physical education instructor, Sonny Walters, for an injury that occurred to Robert Talmadge during physical education class.

Sonny Walters moved to dismiss on the ground that there was no cause of action against him due to section 768.28(9), Florida Statutes (1975). The trial court granted that motion to dismiss and Talmadge appealed to the Second District Court of Appeal. The Second District Court of Appeal found that section 768.28(9), Florida Statutes (1975), did not operate as a bar against suing an employee of the Board, but only acted to indemnify such employee for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment. Talmadge v. District School Board, 355 So.2d 502 (Fla. 2d DCA 1978). The Florida Supreme Court affirmed that decision. District School [1128]*1128Board v. Talmadge, 381 So,2d 698 (Fla.1980).

Shortly thereafter, the Florida Legislature passed Chapter 80-271, Laws of Florida, which amended section 768.28(9), Florida Statutes, so that it barred actions against employees of the state or its subdivisions for acts committed within the scope of employment unless they were done in bad faith or with a malicious purpose. The act further provided that it “shall apply to all actions pending in the trial or appellate courts from the date this act shall take effect and to all actions thereafter initiated.” The act took effect on July 1, 1980.

Subsequent to this amendment, Sonny Walters again moved to dismiss the complaint. The trial court granted that motion. Appellant is appealing that order on the ground that section 768.28(9), Florida Statutes (Supp.1980), is unconstitutional as applied to the appellant.

Retroactive legislation is usually invalid if it impairs a vested right. 10 Fla.Jur.2d Constitutional Law § 296 (1979), and cases cited therein. To the extent that Chapter 80-271, Laws of Florida, amended section 768.28(9), Florida Statutes (Supp. 1980), to apply retroactively, it is unconstitutional. State Dept. of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981), rehearing denied (Fla. Sept. 24, 1981).

Accordingly, we reverse the trial court’s order granting the motion to dismiss.

SHARP and COWART, JJ., concur.

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406 So. 2d 1127, 1 Educ. L. Rep. 1046, 1981 Fla. App. LEXIS 19957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talmadge-ex-rel-talmadge-v-district-school-board-of-lake-county-fladistctapp-1981.

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