Everton v. WillardEverton v. Willard
This cause is before us on petition to review a decision of the Second District Court of Appeal reported as Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983). The issue concerns a law enforcement officer‘s discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability. The district court in the instant case held that an officer‘s decision under this discretionary authority is covered by basic governmental sovereign immunity that precludes liability for such a decision. We find direct conflict with the decision of the Fifth District Court of Appeal in Huhn v. Dixie Insurance Co., 453 So.2d 70 (Fla. 5th DCA 1984). We have jurisdiction,
The tragic circumstances of this case are as follows. A Pinellas County sheriff‘s deputy stopped the respondent, Willard, for a traffic violation. The deputy recognized, from his own observations and Willard‘s admission, that Willard had been drinking to some extent. The deputy did not, however, charge Willard with an intoxicated-driving offense. Rather, he issued Willard a traffic citation for making an improper U-turn and permitted him to drive on. Approximately fifteen minutes later, Willard was involved in a collision in which one person was killed and another was severely injured. The petitioners are the surviving crash victim and the father of the person killed. They filed suit against Willard, as well as the sheriff‘s deputy, the Pinellas County Sheriff‘s Department, and Pinellas County. The complaint alleged that the sheriff‘s deputy had negligently violated a duty to the petitioners by allowing Willard to drive subsequent to issuing him the traffic citation and that the violation of this duty resulted in the accident that caused petitioners’ injuries.
The trial court dismissed the complaint for failure to state a cause of action against the deputy, the sheriff‘s office, and Pinellas County. In so doing, the court held that a law enforcement officer must have the discretion to enforce the law without being subject to tort liability for injuries to innocent third parties.
In affirming, the district court determined that the deputy‘s decision not to arrest Willard prior to the accident was operational in nature under the test of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), for which liability ordinarily would attach, but found that “merely because an activity is `operational,’ it should not necessarily be removed from the `category of governmental activity which involves broad policy or planning decisions.‘” 426 So.2d at 1001 (quoting Commercial Carrier, 371 So.2d at 1022). The court concluded that
the proper planning and implementation of a viable system of law enforcement for any governmental unit must necessarily
include the discretion of the officer on the scene to arrest or not arrest as his judgment at the time dictates. When that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion.
In direct conflict with this holding is the Huhn decision of the Fifth District Court of Appeal, in which the court determined that a city could be held liable in tort for a police officer‘s failure to arrest and detain an intoxicated driver when that driver subsequently injures a third party. The Huhn court held that the arrest decision did not involve the exercise of a discretionary governmental function that is immune from tort liability and found the officer and the governmental entity that employed him liable for this conduct.
Our decision in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla. 1985), which explained that governmental entities are immune when making the basic decision of how to enforce the laws, controls the resolution of this cause. In Trianon we stated:
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... .
It is important to recognize that, although the factual situations in this and the Huhn case concern the failure to arrest intoxicated drivers, the basic principle involved concerns the liability of all governmental bodies and their taxpayers for the negligent failure of their law enforcement officers to protect their citizens from every type of criminal offense. There has never been a common law duty of care owed to an individual with respect to the discretionary judgmental power granted a police officer to make an arrest and to enforce the law. This discretionary power is considered basic to the police power function of governmental entities and is recognized as critical to a law enforcement officer‘s ability to carry out his duties. See ABA Standards for Criminal Justice, Standard 1-4.1 (2d ed. 1980); President‘s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 103-06 (1967). We recognize that, if a special relationship exists between an individual and a governmental entity, there could be a duty of care owed to the individual. This relationship is illustrated by the situation in which the police accept the responsibility to protect a particular person who has assisted them in the arrest or prosecution of criminal defendants and the individual is in danger due to that assistance. In such a case, a special duty to use reasonable care in the protection of the individual may arise. See, e.g., Schuster v. City of New York, 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958).
A law enforcement officer‘s duty to protect the citizens is a general duty owed to the public as a whole. The victim of a criminal offense, which might have been prevented through reasonable law enforcement action, does not establish a common law duty of care to the individual citizen and resulting tort liability, absent a special duty to the victim. This majority view was expressed by the United States Supreme Court in its early decision in South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). A substantial majority of the jurisdictions in this country that have addressed this issue follow this view. See, e.g., Commercial Carrier; Trautman v. City of Stamford, 32 Conn. Supp. 258, 350 A.2d 782 (1975); Crouch v. Hall, 406 N.E.2d 303 (Ind. App. 1980); Commercial Union Insurance Co. v. City of Wichita, 217 Kan. 44, 536 P.2d 54 (1975); Zavala v. Zinser, 123 Mich. App. 352, 333 N.W.2d 278 (1983); Cairl v. State, 323 N.W.2d 20 (Minn. 1982); Maynard v. City of Madison, 101 Wis.2d 273, 304 N.W.2d 163 (1981). We recognize that two jurisdictions have expressed a contrary view. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Irwin v. Town of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). In our opinion, there is no distinction between the immunity afforded the police officer in making a determination of whether to arrest an individual for an offense and the discretionary decision of the prosecutor of whether to prosecute an individual or the judge‘s decision of whether to release an individual on bail or to place him on probation. All of these decisions are basic discretionary, judgmental decisions that are inherent in enforcing the laws of the state. They are clearly not ministerial acts as contemplated by the Huhn decision or the dissents.
Our decision in this case is consistent with our holding in Wong v. City of Miami, 237 So.2d 132 (Fla. 1970), in which we held that a governmental entity could not be held liable for damage caused during a riot, regardless of the fact that the city had removed police officers dispatched to guard against the damage. In that case we stated that the determination of strategy and tactics for the deployment of police powers was inherent in the right to exercise those powers. Id. at 134. We concluded by noting that “sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence.” Id. We reaffirmed that principle in our decision in Commercial Carrier. 371 So.2d at 1019-20.
We note as we did in Trianon that this is a narrow issue relating to the discretionary judgmental decision of making an arrest under the police power of a governmental entity. It does not have the broad ramifications attributed to it by the dissents, nor does it recede from Commercial Carrier.
In conclusion, if a governmental entity is going to be held liable for the negligent discretionary, judgmental decisions made by its police officers in enforcing the law, this means of accountability by tort liability should be imposed by the elected representatives in the legislative branch who may create this new duty of care and place this fiscal responsibility on the governmental entity and its taxpayers, rather than having the judiciary establish this new duty by judicial fiat.
Accordingly, we approve the decision of the Second District Court of Appeal in the instant case and disapprove the Fifth District Court of Appeal decision in Huhn.
It is so ordered.
BOYD, C.J., and ALDERMAN and McDONALD, JJ., concur.
EHRLICH, J., dissents with an opinion.
SHAW, J., dissents with an opinion.
EHRLICH, Justice, dissenting.
I cannot agree that a police officer who, after stopping a dangerous driver and having “reason to believe that [the] person‘s ability to operate a motor vehicle is impaired by alcohol,”1 releases the driver to continue an on-going violation of the law and so to massacre and mutilate innocent citizens of the state has performed the sort of policy-making function this Court immunized from tort liability in Commercial Carrier. This case does not merely deal with that indeed “discretionary exercise of police power authority” involved when a police officer decides whether or not to stop one particular motorist among the myriad drivers and in the face of developing situations. That is, in fact, an allocation-of-resources strategy decision similar to that discussed in Wong v. City of Miami, 237 So.2d 132 (Fla. 1970), cited with approval in Commercial Carrier. It cannot be fairly argued that the police officer who returned Marion Willard to the driver‘s seat of that vehicle was making a strategic decision about the deployment of
The majority misperceives the issue in this case by saying that it “concerns a law enforcement officer‘s discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability.” Willard was intoxicated, according to the allegations of the amended complaint. To arrest or not to arrest was not the decision facing the police officer. The legislature has long ago determined that an intoxicated driver is a menace to the safety of others and must be removed from the road. That policy decision has resulted in the enactment of legislation designed to achieve that end. How that policy decision is carried out is a ministerial act of the police officer. Arrest is one alternative. Another alternative is provided in
Yet the majority says that this is permissible and the governmental entity is immune from suit. However, if a private person violates a statute and such violation is the proximate cause of injury and damage to another, he is liable in damages for his tort.
The tragic results of the officer‘s breach of duty were not merely foreseeable, they were highly predictable. It would be sheer sophistry to argue that the victims were not in the class the statute was designed to protect or that the harm was not precisely that which the statute was intended to prevent. The police officer was without the governmental authority to abet the violation of the law and to thus set into motion the events leading to this senseless tragedy.
I would embrace Judge Orfinger‘s thorough, compelling and just analysis in Huhn v. Dixie International Insurance Co., 453 So.2d 70 (Fla. 5th DCA 1984), as the proper standard for measuring the scope of sovereign immunity. There are no viable grounds for immunity here.
I would disapprove the decision of the district court.
SHAW, Justice, dissenting.
Before addressing the larger issue of sovereign immunity, it is necessary to address two errors of the district court.
Petitioner Trinko‘s complaint named Deputy Parker of the Pinellas County Sheriff‘s Department as a defendant in tort for actions allegedly committed within the scope of his employment. The district court held that Parker could not be named as a defendant because
Section 768.28(9)(a), Florida Statutes (1979), protects such an officer from being personally liable or from being named as a party defendant unless the officer acted in bad faith, with malicious intent, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Appellant Trinko‘s complaint contains no such allegations regarding Deputy Parker and those counts of the complaint seeking damages from him should have been dismissed pursuant to section 768.28(9)(a).
Everton v. Willard, 426 So.2d 996, 998 (Fla. 2d DCA 1983).
The second preliminary error the district court committed was misapplication of the standard of appellate review of a motion to dismiss for failure to state a cause of action. In this posture appellate courts must assume for the purposes of review that all well-pleaded allegations of the complaint are true. From the statement of facts of the district court, it appears that the court reviewed the various answers and depositions and rendered what it perceived as a balanced statement of the “facts.” The district court found that “Deputy Parker knew, by his own observations and by Willard‘s own admissions, that Willard had been drinking to some extent.” Everton, 426 So.2d at 998. This innocuously mild statement severely understates the well-pleaded allegations that Willard was intoxicated, was making illegal U-turns across concrete median strips at dangerous intersections, was staggering when he exited his car — all in the presence of Deputy Parker — and that Parker admitted to the homicide investigating officer that he knew Willard was intoxicated when he released him. For a correct statement and application of the rule of law, see Huhn v. Dixie Insurance Co., 453 So.2d 70 (Fla. 5th DCA 1984), which the majority today disapproves. City of Daytona Beach v. Huhn, 468 So.2d 963 (Fla. 1985).
Based on the allegations and the rule of law the facts of the case are as follows. Willard was driving his vehicle while intoxicated on or about 22 June 1979 at approximately 2:35 a.m. Willard was speeding and running a red light when he collided with a second vehicle. The driver of the second vehicle was killed and various passengers injured. Approximately ten to twenty minutes prior to the homicide, Deputy Parker had observed Willard making an illegal U-turn at a dangerous intersection, against the red light and over a concrete median. After observing a second U-turn, Deputy Parker detained Willard and observed that he staggered when he exited his car, smelled of alcohol, and admitted that he had been drinking. A friend of Willard‘s arrived during the detention and offered to drive him home, but Deputy Parker successfully discouraged the offer. Instead, Deputy Parker issued a traffic citation for an illegal U-turn and released Willard to drive away in an intoxicated state. Deputy Parker knew, or should have known, that Willard was incapable of driving because of intoxication and posed a public hazard if permitted to drive. Deputy Parker admitted to the investigating officer at the homicide scene that he knew Willard was intoxicated when he earlier released him.
I turn now to the larger issue of sovereign immunity. Some general observations are appropriate. The series of decisions we issue today reflects the near total nullification of the legislative waiver of sovereign immunity.2
Florida Jurisprudence 2d Constitutional Law section 191 (1979) describes the definition, scope and extent of the police power thusly:
The police power of a state is very broad and comprehensive and is liberally understood and applied. While it is difficult and practically impossible to give an exact definition of the police power even if this were desirable, the impossibility of an exact definition does not render impossible such description of the power as may serve as a definition for current purposes. The police power of the state embraces its whole internal affairs and its civil and criminal polity. In a broad sense, all legislation and almost every function of civil government is included in the expression “police power.” Police power has been defined as an exercise of the sovereign right of the state to enact laws for the protection of the lives, health, morals, comfort, and general welfare of the people.
The police power includes anything which is reasonable, necessary, and appropriate to secure the peace, order, protection, safety, good health, comfort, quiet, morals, welfare, prosperity, convenience, and best interest of the public. (Emphasis supplied, footnotes omitted.)
Given the sweep of discretionary activities and police power actions, I suggest that there is very little, if anything, left in the way of government action on which a tort victim could sue. In my view we have reached the point in our case law where we have only the most attenuated contact, if any, with the separation of powers doctrine on which Commercial Carrier rests and no contact at all with the statutory determination that government entities will be liable for their torts if a private person would under like circumstances be liable. Without comment, the majority opinion goes full circle and adopts the dissent to Commercial Carrier which maintained the view that the only government activities subject to suit were those which private individuals engaged in. This, of course, is simply a variation on the distinction between governmental and proprietary functions which we also rejected.
Our reading of
I proceed now to a detailed analysis of the case and of the right of a tort victim to sue a government entity under the Florida Constitution and
In its opinion affirming the trial court, the district court recognized that Commercial Carrier established a “planning” versus “operational” test for determining whether the governmental entities possessed immunity for the challenged act; the former category being immune activity and the latter category being non-immune. The district court also found that the challenged act was unquestionably operational. Nevertheless, the court reasoned that the planning versus operational test was not dispositive because the discretion of a police officer to arrest or not arrest someone involved basic governmental policy, the exercise of which was essential to an effective law enforcement system. The court concluded that Commercial Carrier did not impose the “operational” test as an absolute restriction on immunity, that the challenged act met the four-pronged Evangelical test which Commercial Carrier commended for preliminary use despite the fact that it was operational, and, thus, the governmental entities were immune from tort liability. Based on this reasoning and conclusion, the court determined that
the proper planning and implementation of a viable system of law enforcement for any governmental unit must necessarily include the discretion of the officer on the scene to arrest or not arrest as his judgment at the time dictates. When that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion.
Everton, 426 So.2d at 1003-04.
In Commercial Carrier we addressed the scope of the waiver of sovereign immunity contained in
it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.
Johnson, 447 P.2d at 357 (citations omitted).
The Johnson court recognized that to fall into this trap was to bring back sovereign immunity in another guise and to nullify the statutory waiver of sovereign immunity. The court went on to cite approvingly the applicability of the basic teaching that “when there is negligence, the rule is liability, immunity is the exception.” Id. at 363 (quoting Muskopf v. Corning Hospital District, 55 Cal.2d 211, 219, 359 P.2d 457, 465, 11 Cal. Rptr. 89, 94 (1961)). Despite our avowed determination in Commercial Carrier not to fall into the semantic trap of attempting to define governmental discretion,
The district court below expressed the view that the sovereign immunity problem “seems to become more tangled each time the courts attempt to untangle it” and that “[p]erhaps it is time, even past time, for the issue to be definitively and specifically addressed by the legislature so that the state, its agencies and subdivisions, can, with some degree of certainty, know the extent of their liability and guard against it.” Everton, 426 So.2d at 999. The court also expressed its fears that we were drifting toward more and more cases requiring a jury determination of the questions of whether an allegedly tortious act was “operational” or “planning,” “discretionary” or “nondiscretionary.” The court saw a danger of increasingly larger jury verdicts and an intrusion of juries ill equipped to make informed decisions on functions of government peculiar to the act of governing. I understand the frustration and perplexity of the court in trying to deal with a complex area of the law using an analytical approach that requires an initial case-by-case determination of whether a trial court has jurisdiction to reach the merits of the complaint before it.9
The trial and district court judges have attempted to follow our guidance even
Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.
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 ... 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... .
The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality... .
The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
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. (Emphasis added.)
Read together, the above constitutional and statutory provisions mandate that tort suits against the state be heard by the judicial branch.
Applying the above to the case at hand, it is clear to me that the deputy sheriff‘s decision not to take charge of an intoxicated driver is not the basic governmental
The decision as to whether a police officer may release an intoxicated driver to continue motoring on his way has been taken at the highest policy level.
Duty of Those in Charge of Person Having Dangerous Propensities — One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
I emphasize that my view is not based on the general duty of police officers to attempt to apprehend intoxicated drivers. The police here actually apprehended an intoxicated driver. They thereby created a specific legal duty not to release a dangerous individual on to the public streets, which society and this Court should recognize. See the discussion of the Modlin doctrine11 in my dissenting opinion to Trianon Park.
As noted above, unlike Florida law, the federal waiver of sovereign immunity contains an explicit exemption from suit for discretionary functions. Thus, federal law should logically be more receptive than Florida law to the argument that discretionary decisions of police officers are exempted from suit. It is noteworthy that the court in Downs v. United States, 522 F.2d 990 (6th Cir.1975), rejected this proposition under circumstances where an FBI agent in charge was faced with extremely difficult decisions as to how to cope with an aircraft hijacking. The court held that the agent‘s activities did not entail the formulation of governmental policy and did not fall within the discretionary function exception. Thus, in the court‘s view, it was proper to scrutinize the day-to-day activities of law enforcement officers for purposes of determining governmental tort liability. Similarly, although California statutorily excepts discretionary governmental activity, cases from that state have found there is no discretionary immunity under circumstances where a police officer apprehends a driver for traffic offenses. See Green v. City of Livermore, 117 Cal. App.3d 82, 172 Cal. Rptr. 461 (1981) (no immunity following arrest of intoxicated driver for failure of an officer to remove keys from vehicle, which failure permitted intoxicated passenger to drive away, thereafter killing and injuring third parties); Duarte v. City of San Jose, 100 Cal. App.3d 648, 659, 161 Cal. Rptr. 140 (1980) (no immunity where police officer left intoxicated driver alone in police car and intoxicated driver stole police car, thereafter injuring third party); and Mann v. State, 70 Cal. App.3d 773, 139 Cal. Rptr. 82 (1977) (no immunity where police officer investigated stalled motorist on freeway and left motorist unattended to resume routine patrol duties).
A recent case from Massachusetts is extremely relevant. In Irwin v. Town of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984), the court faced the issue:
Is the decision of a police officer to remove from the roadways a driver who he knows or has reason to know is intoxicated a discretionary act within the meaning of G.L.C. 258, § 10(b).
Id. Factually, Town of Ware is directly on point. The police apprehended an intoxicated driver and released him to drive away. Subsequently, the intoxicated driver collided head-on with another vehicle. Fatalities and injuries occurred. Massachusetts law, like Florida law, provides in pertinent part that government entities will be liable for tortious acts of public employees acting within the scope of their employment “in the same manner and to the same extent as a private individual under like circumstances.” Id. Unlike
No reasonable basis exists for arguing that a police officer is making a policy or planning judgment in deciding whether to remove from the roadways a driver who he knows is intoxicated. Rather, the policy and planning decision to remove such drivers has already been made by the Legislature.
Id. 467 N.E.2d at 1299. The court then went on to discuss the question of duty under tort principles which was treated as independent of immunity. Without, of course, describing it as the Modlin doctrine, the court analyzed the public (general) duty — special duty principle. The court recognized that, arguably, the principle that violation of a public (general) duty does not create liability could be used to reintroduce general immunity under tort principles for government entities. The court avoided this result by applying the principle that a general duty does not preclude a special duty; the plaintiff must be permitted to show more — that there is a special duty. The court then concluded that Massachusetts statutes had established that there was a special duty or relationship between police who apprehended intoxicated drivers and potential plaintiffs who are harmed by release of the intoxicated driver.
The conflict between the approach taken by federal, California, and Massachusetts courts, on the one hand, and this Court, on the other, is striking. The former courts are statutorily mandated to recognize an exception for discretionary functions, yet they interpret discretion narrowly and obtain results which are legally defensible. By contrast, we have no mandate to exempt discretionary functions, yet we judicially create such an exemption and read it so broadly as to be indefensible on any discernible grounds.
Respondent and amici urge various reasons why immunity is necessary when a police officer is faced with a decision as to whether or not to arrest a particular individual.
Respondents and amici urge that denying immunity for the discretionary acts of police officers will “chill” the officers in the performance of their duties. I do not believe there will be any unwholesome chilling of police officer conduct. My view is consistent with the Downs court‘s rejection of the “chilling effect” argument:
The prospect of governmental liability for the actions of law enforcement officers should not cause those officers less vigorously to enforce the law. The need for compensation to citizens injured by the torts of government employees outweighs whatever slight effect vicarious government liability might have on law enforcement efforts.
Downs v. United States, 522 F.2d at 998. As noted above, barring misconduct, there is no individual liability for such torts. The legislature has withdrawn the right for a cause of action against the public employee, except as specified, but allows redress for the tort by granting a cause of action against the governmental entity. It is the governmental entity which is being denied immunity. The choice is whether the tort victim should bear the full cost of the injuries or whether society at large, through its government, should bear the cost of torts committed in the scope of governmental activities. The choice has already been made by the legislature in accordance with
1. In view of
2. The adequacy of the complaint should be tested by application of the standard tort definitions used in suits against private persons: duty, duty violated, and injury as proximate result. The first prong, duty, deserves additional comment as it is particularly critical in the evolution of governmental tort law. The Modlin doctrine properly applied is the correct test. There must be an allegation of a special relationship or duty between the government entity and either the alleged tortfeasor or victim. A general duty, without more, does not establish a special relationship or duty. Conversely, the presence of a general duty does not preclude a showing of a special relationship or duty. Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967). Two examples will illustrate the point, one based on this case and one drawn from Department of Transportation v. Neilson, 419 So.2d 1071 (Fla. 1982). First, given the finiteness of government resources, governments have not undertaken, nor can they reasonably be expected, to provide protection for all citizens at all times from illegal or tortious activities of other citizens. The fact that an intoxicated driver or other law violator or tortfeasor injures someone does not, without more, create government liability. There must be a showing, or allegation as here, under traditional tort law that the government entity owed a duty to the plaintiff and that duty was violated. Second, as we said in Neilson, “[t]he fact that a road is built with a sharp curve is not in itself a design defect which creates governmental liability.” Id. at 1078. There is no duty to build unbending roads which can be traveled at high speeds, but there is a duty to warn if a curve cannot be safely negotiated at the legal or posted speed. There is no duty to replace existing traffic control devices with more sophisticated, state-of-the-art devices, but there is a duty to properly maintain existing traffic control devices. There is no duty to build a new road or to change an existing road but there is a duty to warn of, correct, or not create known dangerous conditions. See our discussion in Neilson, 419 So.2d at 1077-78 which, if closely read, rests comfortably on traditional tort principles.14
For purposes of tort liability,
The intentions of the legislature are clear: governmental entities are authorized to obtain liability insurance coverage in any amount; liability insurance contracts purchased by governmental entities shall prohibit the defense of sovereign immunity to the extent of the coverage; where liability insurance exists neither the governmental entity nor the insurer may claim sovereign immunity up to the limits of the contract; statutory caps on governmental liability are waived to the limits of insurance policy coverage. (Statutory caps are discussed more fully below.) The central thrust of the legislative scheme is apparent. The legislature has acted to encourage the purchase of liability insurance, or self-insurance, by governmental entities and to ensure that the governmental entities and their tort victims receive the full benefit of the premiums paid and the coverage obtained on such insurance contracts. The legislature has stopped short of directing
The final measure the legislature has adopted deals with safeguarding government entities from large, perhaps lethal, damage judgments. Governmental entities and their financial resources vary widely from the populous counties or metropolitan areas to the small municipalities. The legislature has devised a system which accommodates itself to these differences, and yet provides a method for adequately compensating tort victims. As a fail-safe device, section 768.28(5) places a cap on the compensatory damages which a governmental entity may be required to pay and prohibits punitive damages or interest for the period before judgment.17 This cap, however, is not absolute. It is qualified by: first, the provisions discussed above which raise the cap to the actual coverage provided by liability insurance; and, second, the provision in section 768.28(5) that judgments in excess of the statutory cap may be reported to the legislature, which, in its discretion, may direct that the excess judgment be paid in whole or part. There are two complementary reasons why a governmental entity would or should obtain coverage which compensates a tort victim in excess of the statutory cap. The first is that the entity may feel a moral obligation to fully compensate tort victims, thus maintaining its self and public respect by demonstrating its sense of responsibility to its citizens. The second is that the legislature may direct that a tort victim be compensated above the statutory cap and, consequently, the governmental entity may well end up with a legal, as well as a moral, responsibility to compensate the tort victim. The latter is not an unlikely possibility. In the four years, 1981-84, the legislature enacted twenty-six special relief acts authorizing and directing political subdivisions and state agencies to pay a total of $9,427,181.30 to government tort victims.18 This additional compensation was in addition to the statutory or insurance policy limits of section 768.28. The amount of individual relief ranged from just under four thousand dollars to just under four million dollars. The average additional compensation was $362,583.90. The number and amount of the relief bills strongly suggests that the legislature continues to be in deadly earnest about carrying out the intent of article X, section 13 and section 768.28 that government tortfeasors will compensate their tort victims regardless of whether the government entity wishes to or not. See Hess v. Metro Dade County, 467 So.2d 297 (Fla. 1985), where we upheld the constitutional authority of the legislature to direct the payment of compensation to government tort victims.19
Some twenty-eight years ago Justice Thornal, writing for this Court, recorded, in unmistakable terms, our disapproval, even abhorrence, of the doctrine of sovereign immunity.
Immunization in the exercise of governmental functions has been traditionally put on the theory that “the king can do no wrong but his ministers may“. In applying this theory the courts have transposed into our democratic system the concept that the sovereign is divine and that divinity is beyond reproach. In preserving the theory they seem to have overlooked completely the wrongs that produced our Declaration of Independence and in the ultimate resulted in the Revolutionary War. We, therefore, feel that the time has arrived to declare this doctrine anachronistic not only to our system of justice but to our traditional concepts of democratic government.
The immunity theory has been further supported with the idea that it is better for an individual to suffer a grievous wrong than to impose liability on the people vicariously through their government. If there is anything more than a sham to our constitutional guarantee that the courts shall always be open to redress wrongs and to our sense of justice that there shall be a remedy for every wrong committed, then certainly this basis for the rule cannot be supported.
NOTES
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Notes
Notes
In Broward County v. Payne, 437 So.2d 719 (Fla. 4th DCA 1983), the court commented on its uncertainty as to the delineation between operations and planning in certifying three questions of great public importance to the Supreme Court. The court then added:
We also take judicial notice of the fact that the recent lower court decisions, law review notes and legal periodical articles redound with wailing and gnashing of teeth on how to define and apply the dictates of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). The so-called Modlin doctrine discarded by Commercial Carrier may well have been unsatisfactory but at least we all understood it!
In Carter v. City of Stuart, 433 So.2d 669 (Fla. 4th DCA 1983), the court certified a question of great importance to the Supreme Court with the comment that Florida case law was in disarray on the overall question of what constitutes “planning” and “operational” activities and
the only way out of the impasse at the District Court level is to certify each and every case to the Supreme Court, on its particular facts, and let our superiors show us the way until the law is clarified or Commercial Carrier is receded from.
In Neumann v. Davis Water and Waste, Inc. 433 So.2d 559 (Fla. 2d DCA 1983), the court commented that it found the Evangelical test uninstructive, that litigants were perplexed by the new set of labels from Commercial Carrier (discretionary versus nondiscretionary, operational versus planning), and that the instant case presented another square peg which would not fit the labels. The court then declined to assign a label to the challenged government activity and simply held that it was immune.
In Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981), approved 419 So.2d 1082 (Fla. 1982), the court commented that under section 768.28, Florida Statutes (1973), and Commercial Carrier everything had changed yet nothing had changed and that the operational/planning dichotomy may be a classic example of adding further confusion through an attempt to clarify tenuous concepts with labels.
In a dissent to Department of Transp. v. Neilson, 419 So.2d 1071, 1079 (Fla. 1982), the writer of Commercial Carrier, Justice Sundberg, commented:
In a laudable effort to simplify the distinction between those acts of governmental agencies which still enjoy immunity and those which do not, it occurs to me that the majority has simply exchanged one set of result descriptive labels for another. Hence, the irreconcilable results among the several district courts of appeal are not harmonized, but rather the confusion is compounded. The enigma is now shrouded in mystery. Because I believe it need not be so, I respectfully dissent.
That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years, since Ashby v. White, 2 Ld.Raym. 938, 3 Ld.Raym. 320, and has been recognized by this Court. (Citations omitted.)
We are trying to protect everybody. If everyone shares in the cost of that protection [government], then everyone benefits... . This whole concept that we are seeking now, not the individual bill, but the whole concept of waiving sovereign immunity, we are trying to provide for rights. If you are a conservative person, then you believe in conserving human life, you believe in protecting people against the willful or negligent acts of others and we have a responsibility to the people of this state. The only excuse for government is to help the people, and if we are not going to help the people, we shouldn‘t have government. It costs to operate government and the people share in that cost. So, they are doing it for their own benefit.
... .
I pay my taxes here to support the schools, and I don‘t mind paying a little bit more to see that my children are protected and that my friends are protected, and that I am protected if I am using the property. I don‘t mind and I don‘t think you should either. I think it is ridiculous for any person — the law is so strong in this area that we are going to require this session that everyone have insurance, and be against the law to drive without insurance. It ought to be against the law for you[*] to operate without insurance to protect the people of this state.
See supra note 13 at 26.
[*] Addressed to government lobbyists appearing before the committee to oppose the waiver of sovereign immunity which treated governments as private persons.