SC08-149 – Kelly Wallace v. Ed Dean, Sheriff of Marion County

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Supreme Court » 2009 » SC08-149 – Kelly Wallace v. Ed Dean, Sheriff of Marion County

State: Florida

Court: Supreme Court

Docket No: SC08-149

Case Date: 01/29/2009

Preview:Supreme Court of Florida
____________ No. SC08-149 ____________ KELLY WALLACE, Petitioner, vs. ED DEAN, SHERIFF OF MARION COUNTY, Respondent. [January 29, 2009] LEWIS, J. In this case, we review the decision of the Fifth District Court of Appeal reported as Wallace v. Dean, 970 So. 2d 864 (Fla. 5th DCA 2007). Despite the plaintiff-petitioner's repeated reliance upon the undertaker's doctrine below, which is readily apparent from reading the Fifth District's decision, 1 that court failed to recognize a long line of Florida precedent applying this common-law doctrine to

1. See, e.g., Wallace, 970 So. 2d at 866 ("According to Ms. Wallace, the duty arose because (1) once the deputies undertook to check on the well-being of the decedent, they had a duty to do so with reasonable care; (2) the deputies' negligent actions increased the risk of harm to the decedent; and (3) the decedent's neighbor relied on the deputies' actions and statements and, as a consequence, failed to call an ambulance." (emphasis supplied)).

governmental actors and entities. 2 Of particular significance is the First District's decision in Hartley v. Floyd, 512 So. 2d 1022 (Fla. 1st DCA 1987), which applied

2. See, e.g., Breaux v. City of Miami Beach, 899 So. 2d 1059, 1061 (Fla. 2005) (having undertaken to operate a public beach as a swimming area, the city had a duty to do so in a reasonable manner); Slemp v. City of N. Miami, 545 So. 2d 256, 258 (Fla. 1989) ("Once the city has undertaken to provide [flood] protection, by building a storm sewer pump system, . . . it assumes the responsibility to do so with reasonable care." (emphasis supplied)); Dep't of Health & Rehab. Servs. v. Yamuni, 529 So. 2d 258, 262 n.3 (Fla. 1988) ("[T]he voluntary assumption of responsibilities which might be undertaken by others creates a duty of care on the part of the assuming party." (emphasis supplied)) (decision involved state supervision and care of children); Avallone v. Bd. of County Comm'rs, 493 So. 2d 1002, 1005 (Fla. 1986) (having undertaken to operate a swimming facility, the government has a duty to do so in a reasonable manner); Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1017 (Fla. 1979) ("[I]t is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his `good Samaritan' task in a careful manner." (emphasis supplied) (quoting Indian Towing Co. v. United States, 350 U.S. 61, 64-65 (1955)) (decision involved governmental entity maintaining existing intersection and traffic-control devices); Hinckley v. Palm Beach County Bd. of Comm'rs, 801 So. 2d 193, 195-96 (Fla. 4th DCA 2001) (county owed the plaintiff's developmentally disabled daughter a duty of care to provide safe transportation once it undertook to supply her with such services); Grace v. City of Miami, 661 So. 2d 1232, 1233 (Fla. 3d DCA 1995) ("Once the City undertakes to provide a lunch program for children at a city-owned park, it assumes the duty to operate the program safely." (emphasis supplied)); White v. City of Waldo, 659 So. 2d 707, 710 (Fla. 1st DCA 1995) (police officer undertaking to capture loose horse on highway creates a duty of care to surrounding civilian motorists (citing Restatement (Second) of Torts section 323 (1965))); Hartley v. Floyd, 512 So. 2d 1022, 1024 (Fla. 1st DCA 1987) (having undertaken the duty to check a boat ramp for the presence of decedent's truck and trailer, a sheriff's deputy had a duty to do so in a reasonable manner); Dep't of Highway Safety & Motor Vehicles v. Kropff, 491 So. 2d 1252, 1255-56 (Fla. 3d DCA 1986) (state trooper undertaking to secure the scene of an automobile collision had a duty to do so with reasonable care); Padgett v. Sch. Bd. of Escambia County, 395 So. 2d 584, 585 (Fla. 1st DCA 1981) (having undertaken -2-

the undertaker's doctrine and held that a common-law duty existed when a sheriff's deputy assured a 911 caller that he would conduct a safety check (and later claimed that he did conduct such a check) when, in fact, he never responded to the scene. See id. at 1024 (relying upon Dep't of Highway Safety & Motor Vehicles v. Kropff, 491 So. 2d 1252 (Fla. 3d DCA 1986), and Padgett v. Sch. Bd. of Escambia County, 395 So. 2d 584 (Fla. 1st DCA 1981)). As we explained long ago in Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960), and subsequently reaffirmed following the 1980 amendments to article V of the Florida Constitution, 3 there are two principle circumstances that support our jurisdiction to review district-court decisions based upon alleged express-and-direct conflict. 4 Here, we deal with both species of conflict jurisdiction identified in Nielsen. First, the decision below announced a rule of law that conflicts with the host of decisions listed in footnote 2, supra. Second, the decision below conflicts with Hartley v. Floyd, 512 So. 2d 1022 (Fla. 1st DCA

the operation of school-crossing lights, the school board had a duty to do so in a reasonable manner). 3. See Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992); Combs v. State, 436 So. 2d 93, 94 (Fla. 1983). 4. To wit: (1) the announcement of a rule of law that conflicts with a rule previously announced by this Court or another district court; or (2) the application of a rule of law to produce a different result in a case that involves substantially similar controlling facts as a prior case disposed of by this Court or another district court. See Nielsen, 117 So. 2d at 734.

-3-

1987), because each decision involved the substantially similar factual scenario of an allegedly negligent law-enforcement response to a safety check, which the respective plaintiffs contended increased the risk of harm to their decedents. Hence, the attempt of our dissenting colleagues to narrow our recognized conflict jurisdiction to solely encompass decisions involving identical factual scenarios is based upon an unjustified departure from existing precedent, which fails to recognize the first species of conflict jurisdiction identified in Nielsen and unjustifiably attempts to erode the second. 5 In addition to the jurisdictional bases described in Nielsen, conflict jurisdiction also exists here based upon misapplication of our decisions in Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989), Everton v. Willard, 468 So. 2d 936 (Fla. 1985), and Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). 6 First, in opposition to Kaisner, the decision below improperly

5. As a necessary precondition to discounting the guiding principle of stare decisis, we have traditionally asked the following questions, each of which merits a negative response in this context: (1) whether the prior precedent has proven unworkable due to its reliance upon an erroneous legal fiction; (2) whether the rule of law could be reversed without serious disruption in legal doctrine and injustice to those relying upon the law; and (3) whether the underlying premise of the prior precedent has changed so dramatically that it lacks legal justification. See, e.g., N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 637 (Fla. 2003). 6. See, e.g., Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1254 (Fla. 2006) (identifying misapplication of our precedent as one means of supplying conflict jurisdiction); Aguilera v. Inservs., Inc., 905 So. 2d 84, 86 (Fla. 2005) (same); -4-

conflated the separate questions of duty and sovereign immunity by holding that the deputies in this case were engaged in a "discretionary" function (i.e., a question related to whether the doctrine of sovereign immunity applies) and then perplexingly stating that it "need not discuss the issue of sovereign immunity." Wallace, 970 So. 2d at 867-69. Second, the decision below misapplied Everton, as we expressly limited our holding in that case to the question of whether a lawenforcement officer's decision to make an arrest or to enforce the criminal law is a discretionary function insulated from tort liability by the doctrine of sovereign immunity. See Wallace, 970 So. 2d at 867, 868. Third and finally, the decision below misapplied Trianon by classifying the affirmative response of the Sheriff's deputies involved in this case as a category II activity when, in reality, this type of response falls within category IV of the Trianon taxonomy. See Wallace, 970 So. 2d at 867. We thus possess and exercise our discretionary conflict jurisdiction to resolve the question of whether the undertaker's doctrine applies to governmental officers who have affirmatively responded to a 911 call, actually engaged an individual, and undertaken to perform a safety check. See art. V,

Download SC08-149 – Kelly Wallace v. Ed Dean, Sheriff of Marion County.pdf