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physically shook her body. One deputy even went so far as to shake Brenda so aggressively that her entire body moved across the bed.


In spite of these repeated, intensive efforts to arouse Brenda, she remained completely unresponsive. Ginder then requested that the deputies summon an ambulance, but the deputies "rebuffed" this request by repeatedly assuring Ginder that it was unnecessary to do so because Brenda was merely sleeping. Moreover, Ginder's father suggested that Brenda might have lapsed into a diabetic coma, to which one of the deputies replied, "One does not snore if in a diabetic coma."


(Emphasis supplied.) Ginder and her father relied on the deputies' repeated assurances that Brenda was simply sleeping and their continued affirmation that emergency help was not immediately required. Before they left, the deputies decided that they would leave one of Brenda's side doors open and unsecured so that Ginder could check on her at a later time. Ginder then relayed this information to Kelly Wallace, who similarly relied on the deputies' assurances that her mother was merely sleeping and that emergency medical attention was unnecessary.


When Ginder returned to check on Brenda the next morning, she discovered that Brenda had soiled herself and had not moved from the position in which the deputies had left her. Ginder then dialed 911 for the second time in as many days.


The dispatcher again attempted to send Sheriff's deputies to the scene, but Ginder







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pleaded that the dispatcher, instead, send an ambulance. Within less than five minutes an ambulance responded, and Brenda was transported to a local hospital where she died several days later without ever regaining consciousness. It is alleged that this conduct was the direct and proximate cause of the injury which resulted in the decedent's death.


Consistent with Florida precedent, in this case, we first (A) provide an overview differentiating between a lack of liability and the presence of sovereign immunity; (B) recognize the duty of the Marion County Sheriff's Office to reasonably conduct a safety check once it has undertaken to respond, has engaged an injured party, and has actually conducted such a check, and then (C) separately and subsequently address the issue of sovereign immunity, which has been waived here because the deputies were conducting an operational-level function that is not immune from tort liability. We make no determination with regard to the ultimate issue of whether the Sheriff's deputies breached the applicable duty of care and were ultimately negligent in carrying out this duty or whether such potential negligence was the legal or proximate cause of the decedent's death. We further do not address the hypothetical effect of any affirmative defenses in this case. As a result, each of these questions remains for the trier of fact to consider on remand.







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II. ANALYSIS






A. Overview



As an initial point of departure, brief clarification is necessary concerning the differences between a lack of liability under established tort law and the presence of sovereign immunity. When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis13 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. See, e.g., Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 932-33 (Fla. 2004) ("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. However, if a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty." (citations omitted)); Henderson v. Bowden, 737 So. 2d 532, 534-35 (Fla. 1999) (substantially similar); Kaisner v. Kolb, 543 So. 2d 732, 733-34 (Fla. 1989) (substantially similar). Under traditional principles of tort law, the absence of a duty of care between the defendant and the plaintiff results in a lack of liability, not application









13. Which, when relevant, may include examination of the so-called public- duty doctrine and its recognized exceptions. See part II.B.ii., infra.








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of immunity from suit. See, e.g., 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). Conversely, sovereign immunity may shield the government from an action in its courts (i.e., a lack of subject-matter jurisdiction)14 even when the State may otherwise be liable to an injured party for its tortious conduct.


Compare Black's Law Dictionary 766 (8th ed. 2004) ("sovereign immunity. 1. A government's immunity from being sued in its own courts without its consent."), with id. at 545 ("[duty of care]. A legal relationship arising from a standard of care, the violation of which subjects the actor to [tort] liability."). In other words, the presence of sovereign immunity does not render the State's actions nontortious (it simply means that the State has not consented to suit in its courts with regard to









14. For example, the First District Court of Appeal has observed:


Prior to the effective date of [section] 768.28(6)[, Florida Statutes,] courts did not have subject matter jurisdiction of tort suits against the State and its agencies because they enjoyed sovereign immunity pursuant to Article X, [s]ection 13, Florida Constitution. However, by enacting [section] 768.28 the [L]egislature provided for waiver of sovereign immunity in tort actions. Therefore, pursuant to that statute, courts . . . now have subject matter jurisdiction to consider suits which fall within the parameters of the statute.


Hutchins v. Mills, 363 So. 2d 818, 821 (Fla. 1st DCA 1978) (citations omitted), cert. denied, 368 So. 2d 1368 (Fla. 1979) (table); see also Kropff, 491 So. 2d at 1254 n.1 ("Sovereign immunity relates to subject matter jurisdiction. Parties may not confer subject matter jurisdiction by waiver, failure to object, or consent where none is given by law. Governmental immunity may be raised at any time." (citations omitted)).







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certain claims). In contrast, the absence of a duty of care renders the defendant nonliable as a matter of law because his, her, or its actions are therefore nontortious vis-à-vis the plaintiff. See, e.g., Kaisner, 543 So. 2d at 733-34 (holding that the issue of sovereign immunity does not even arise unless a governmental unit otherwise owes a duty of care to the injured party and would thus be liable in the absence of such immunity); but see Miami-Dade County v. Fente, 949 So. 2d 1101, 1103-05 (Fla. 3d DCA 2007) (conflating the issue of whether the government owes the plaintiff a duty of care with the separate, distinct issue of whether the doctrine of sovereign immunity shields the government from tort liability); Seguine v. City of Miami, 627 So. 2d 14, 17 (Fla. 3d DCA 1993) (same mistaken reasoning).15


As we explained in Kaisner, the public-duty doctrine expressed in Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912, 919-21 (Fla. 1985), and its exceptions, relate exclusively to the question of whether the government owes a duty of care to the individual plaintiff or group of plaintiffs as opposed to the general public. See Kaisner, 543 So. 2d at 734 ("Trianon was not intended to, and did not affect our prior pronouncements on the question of governmental immunity. It merely addressed, in that particular factual context, the









15. Reasoning aside, we express no opinion as to the underlying propriety of the results reached by the Third District Court of Appeal in these decisions.







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parallel question of . . . duty of care." (emphasis supplied)). Accordingly, we take this occasion to reaffirm that, in Florida, "[g]overnmental immunity derives entirely from the doctrine of separation of powers, not from [the absence of] a duty of care or from any statutory basis." Bowden, 737 So. 2d at 538 (brackets omitted) (emphasis supplied) (quoting Kaisner, 543 So. 2d at 737); see also Commercial Carrier, 371 So. 2d at 1017-22 (holding that article II, section 3 of the Florida Constitution (the separation-of-powers provision) requires the judicial application of a discretionary-function exception to the otherwise broad waiver of sovereign immunity present in section 768.28, Florida Statutes).


We review de novo the dismissal of a complaint for failure to state a cause of action. See Fla. Dep't of Corr. v. Abril, 969 So. 2d 201, 204 (Fla. 2007) ("[A]ppellate courts review decisions resolving motions to dismiss under a de novo standard where those motions are based on a claim that no legal cause of action exists as alleged in the complaint." (citing Siegle v. Progressive Consumers Ins.


Co., 819 So. 2d 732, 734 (Fla. 2002)). As explained above, we must address two separate issues in this case: (B) whether the Sheriff of Marion County, acting through two of his deputies, owed the decedent a common-law duty of care because of the manner in which the deputies responded to a 911 call, engaged an







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individual, and undertook and conducted a safety check;16 and (C) if so, whether the Sheriff is nonetheless sovereignly immune for his deputies' allegedly tortious actions. Having undertaken to respond to the 911 call, engaged the decedent, and completed this safety check and having allegedly placed the decedent in a "zone of risk" by failing to exercise reasonable care, which, as alleged, both increased the risk of harm to decedent and induced third parties--who would have otherwise rendered further aid--to forebear from doing so, we conclude that the Sheriff owed the decedent a common-law duty of care. See Restatement (Second) of Torts §§ 323-324A (1965). We further conclude that the Sheriff's deputies were performing an operational-level function, which involved the implementation of a preexisting policy or program (the established 911 system), and that this operational conduct did not involve the exercise of any type of quasi-legislative discretion. Cf. Wilson v. Miami-Dade County, 370 F. Supp. 2d 1250, 1255 (S.D.


Fla. 2005) (applying Florida law) ("The decision as to how to implement or operate a policy is secondary to the decision to create the policy. . . . Methods of implementation of policy are at best a secondary concern. Plaintiff, in this case is asking the Court to consider the way in which this policy was implemented and not its fundamental wisdom." (citations and internal division omitted)). Here, the









16. The plaintiff-petitioner has not relied upon any alleged statutory duty of care.







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application of traditional principles of tort law "will not entangle [the judiciary] in fundamental questions of public policy or planning. It merely will require the courts to determine if the officers should have acted in a manner more consistent with the safety of the individual[] involved." Kaisner, 543 So. 2d at 738.






B. Duty of Care






i. Introduction


Through a duly enacted general law,17 the Legislature has waived sovereign immunity for the State, its agencies, and its subdivisions in tort actions, rendering the State responsible "in the same manner and to the same extent as a private individual under like circumstances." § 768.28(5), Fla. Stat. (2004); see also art. X, § 13, Fla. Const. ("Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating."). A threshold matter is whether the Sheriff's deputies owed the decedent a duty of care, because, as alluded to above, there can be no governmental liability unless a common-law or statutory duty of care existed that would have applied to an individual under like circumstances. See, e.g., Pollock, 882 So. 2d at 932-33; Bowden, 737 So. 2d at 534-35; Kaisner, 543 So. 2d at 733-34.


A duty of care is "a minimal threshold legal requirement for opening the courthouse doors." McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)







17.



See ch. 73-313, Laws of Fla.







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(footnote and emphasis omitted). This requirement poses a question of law that the court must answer before permitting a negligence claim to proceed before the trier of fact. See Williams v. Davis, 974 So. 2d 1052, 1057 n.2 (Fla. 2007) (citing McCain, 593 So. 2d at 504); Restatement (Second) of Torts § 328B.18 A duty of care requires that the defendant "conform to a certain standard of conduct . . . for the protection of others against unreasonable risks." Clay Elec., 873 So. 2d at 1185 (quoting Keeton, supra, § 30, at 164-65). There are generally four recognized bases for imposing a duty of care:





(1) legislative enactments or administration regulations;





(2) judicial interpretations of such enactments or regulations;





(3) other judicial precedent; and












18. The remaining elements of a negligence claim, which we need not consider in this case, include: (2) breach; (3) legal or proximate causation; and (4) actual damages. See Clay Elec., 873 So. 2d at 1185; see also Restatement (Second) of Torts § 328A. In the majority of negligence actions, each of these elements is properly a question for the trier of fact. See, e.g., Williams, 974 So. 2d at 1057 n.2 ("The determination of whether [a] duty was breached in a particular instance . . . will ordinarily be reserved for the fact-finder."); McCain, 593 So. 2d at 504 ("[T]he question of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve. Thus, where reasonable persons could differ as to whether the facts establish proximate causation . . . then the resolution of the issue must be left to the fact-finder. . . . The judge is free to take this matter from the fact-finder only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference." (citations omitted)); Slemp, 545 So. 2d at 258 ("The question of the proximate cause of the damage is one of fact, and should have been submitted to a jury."); see also Restatement (Second) of Torts § 328C.








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(4) a duty arising from the general facts of the case.


Clay Elec., 873 So. 2d at 1185 (formatting altered) (quoting McCain, 593 So. 2d at 503 n.2). Here, we deal with a common-law duty (the undertaker's doctrine) arising from the general facts of this case. See Restatement (Second) of Torts §§ 323-324A (1965).



ii. The Trianon Taxonomy

Where questions of duty arise in connection with potential governmental liability, we have provided a "rough," general guide concerning the type of activities that either support or fail to support the recognition of a duty of care between a governmental actor and an alleged tort victim. See Trianon, 468 So. 2d at 919 (providing the following list of governmental activities: "(I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of . . . citizens."); Yamuni, 529 So. 2d at 261 (clarifying that the Trianon taxonomy provides only a "rough guide" as to whether the governmental entity owes the plaintiff a duty of care). Activities listed in category I pertain to the public at large and generally fail to support the recognition of a
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