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Supreme Court of Florida





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No. SC08-149


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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)).




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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







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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.







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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);







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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 law- enforcement 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, § 3(b)(3), Fla.


Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003) (same); Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002) (same); Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1272 (Fla. 2000) (same); State v. Stacey, 482 So. 2d 1350, 1350 (Fla. 1985) (same); Arab Termite & Pest Control of Fla., Inc., 409 So. 2d 1039, 1040 (Fla. 1982) (same).











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Const. As explained in our analysis, we quash the decision of the Fifth District in Wallace, and conclude that the undertaker's doctrine applies when law- enforcement officers respond, actually engage an injured party, and then undertake a safety check, which places the injured party in a "zone of risk"7 because the officers either increased the risk of harm to the injured party or induced third parties--who would have otherwise rendered aid--to forebear from doing so. See Restatement (Second) of Torts §§ 323-324A (1965) (articulating the common-law undertaker's doctrine).8 Under these circumstances, we further hold that the affirmative actions of the deputies involved in this case were operational in nature; therefore, sovereign immunity does not bar the plaintiff-petitioner's negligence- based wrongful-death claim. See § 768.28(1),(5), Fla. Stat. (2004); Slemp v. City of N. Miami, 545 So. 2d 256, 257 (Fla. 1989) ("The abiding test for determining whether a government entity has sovereign immunity for its tortious acts is the operational/planning formula set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979).").










7.



Kaisner v. Kolb, 543 So. 2d 732, 735-36 (Fla. 1989) ("Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon [the] defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. . . . We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police." (citations and internal division omitted)).










8. We also approve and reaffirm the decisions listed in footnote 2, supra, to the extent that they are consistent with our analysis and holding.











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I. BACKGROUND


Plaintiff-petitioner, Kelly Wallace (the decedent Brenda Wallace's daughter), originally filed an action pursuant to Florida's Wrongful Death Act (sections 768.16-.26, Florida Statutes (2004)), against Ed Dean in his official capacity as the Sheriff of Marion County. In the initial complaint, the plaintiff alleged that two Marion County Sheriff's deputies responded to a 911 call, undertook to determine Brenda's safety, thereby assumed a duty of care, and negligently increased the risk of harm that Brenda faced by failing to summon an ambulance, which proximately resulted in Brenda's death. After two subsequent amendments, which (i) added additional factual information concerning these events (i.e., Brenda was totally unresponsive to the deputies' repeated and concerted attempts to physically and verbally awaken her) and (ii) further alleged that the deputies "rebuffed" the suggestions of third parties that Brenda was in a diabetic coma and that the deputies should summon an ambulance, the circuit court dismissed the plaintiff's complaint with prejudice for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). To support its order of dismissal, the circuit court provided the following legal bases: (1) the Sheriff did not owe the plaintiff's decedent a common-law duty of care; (2) by responding to the 911 call and conducting a safety check, the Sheriff's deputies were performing a quasi- legislative discretionary function for which the Sheriff enjoys sovereign immunity;







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(3) the court was concerned with a hypothetical "chilling effect" that liability might have on the Sheriff's future willingness to conduct safety checks;9 and (4) the deputies never created a "special relationship" with the decedent or the plaintiff, which otherwise could have subjected the Sheriff to liability. Thereafter, the plaintiff-petitioner filed a timely notice of appeal with the Fifth District.


On appeal, the plaintiff-petitioner repeatedly invoked the undertaker's doctrine as a recognized common-law basis for imposing a duty of care and also












9. Such abstract notions of sound public policy are not proper judicial considerations when conducting the above-described duty and sovereign-immunity analyses. Through their elected officials, the voters of this state have already made the policy decisions to waive sovereign immunity subject to certain limitations, see section 768.28, Florida Statutes (2004), to permit the operation of 911 systems, to support the governmental provision of safety checks, and to permit governmental entities to engage in many other activities vis-à-vis civilians. After a governmental policy or program has been adopted, it cannot be carried out with operational impunity and in a manner with total disregard to the injuries that it may inflict upon Floridians. Moreover, the Legislature has always been cognizant of the need to avoid crushing tort liability for governmental entities. For that reason, it has seen fit to (1) cap the recoverable damages in the absence of a special claims bill ($100,000 per claimant, $200,000 per incident or occurrence), see section



768.28(5), Florida Statutes (2004); and (2) preserve the ability for governmental entities to purchase insurance, participate in risk-management programs, and to self-insure, see sections 30.555, 768.28(13), (16)(a), Florida Statutes (2004). Cf.


Cir. Ct. of Twelfth Jud. Cir. v. Dep't of Nat. Resources, 339 So. 2d 1113, 1116 (Fla. 1976) (observing that section 768.28, Florida Statutes, permits Florida governmental entities to purchase insurance: "Consequently, a source of payment of claims other than the treasury of the state is provided incident to the waiver, a fact which obviates the primary concern expressed in the decisions applying the sovereign immunity doctrine." (emphasis supplied)). The courts have no authority to usurp this decision-making process based upon speculative, countervailing judicial notions of appropriate public policy. Unlike the primary dissent, we will not disregard these aspects of Florida law.








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highlighted the fact that this case (in marked contrast to our prior decision in Everton v. Willard, 468 So. 2d 936 (Fla. 1985))10 does not involve the discretionary decision of whether to arrest a suspect or whether to enforce the law; instead, it involves the affirmative provision of a service to a determinate individual (i.e., actually engaging and conducting a service upon the individual).


Nevertheless, the Fifth District affirmed the circuit court's final order of dismissal by employing much of the same reasoning and by characterizing the deputies' actions as passive nonfeasance (rather than active negligence), which, according to the district court, at most exhibited "poor judgment." See Wallace, 970 So. 2d at 867-69. While we do not reach the question of whether the deputies ultimately







10.



See Henderson v. Bowden, 737 So. 2d 532, 537 (Fla. 1999) ("Everton . . . dealt with the narrow, albeit important, issue of whether the decision to make an arrest by a law enforcement officer pursuant to the State's police power is a discretionary level function protected by sovereign immunity."). The primary dissent materially misconstrues and mischaracterizes the issue and holding presented in Everton. Specifically, Everton did not involve any question with regard to a law-enforcement officer's "decision not to assist." Dissenting op. at 43 (Wells, J., joined by Canady, J.). Rather, as is manifestly clear from Everton and our later precedent, that decision involved a police officer's decision not to arrest a drunk driver, who, within minutes, struck and killed a plaintiff's decedent and severely injured the other plaintiff. See 468 So. 2d at 937. Therein, we addressed the narrow issue of whether a law-enforcement officer's initial decision to arrest or not arrest an individual or to enforce or not enforce a particular criminal law is a discretionary function that is, correspondingly, immune from tort liability. See id. Under those circumstances, we held that such decisions are indeed discretionary. See id. That being said, Everton in no way, shape, form, or fashion addressed a "decision not to assist" an obviously injured, helpless person after law-enforcement officers had affirmatively responded to the scene and engaged the individual.








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breached the applicable standard of care in this case,11 we note that even "poor judgment" may result in negligence:


A failure to conform to the standard [of care] is negligence, therefore, even if it is due to clumsiness, stupidity, forgetfulness, an excitable temperament, or even sheer ignorance. An honest blunder, or a mistaken belief that no damage will result, may absolve the actor from moral blame, but the harm to others is still as great, and the actor's individual standards must give way in this area of the law to those of the public. In other words, society may require a person not to be awkward or a fool.


Prosser and Keaton on the Law of Torts § 31, at 169 (W. Page Keeton, et al. eds., 5th ed. 1984) (footnotes omitted)).


In addition to misconstruing Florida law, the reasoning exhibited below improperly discounted the appropriate standard of review: "For . . . purposes of a motion to dismiss for failure to state a cause of action, allegations of the complaint are assumed to be true and all reasonable inferences arising therefrom are allowed in favor of the plaintiff." Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983) (emphasis supplied) (citing Orlando Sports Stadium, Inc. v. State ex rel.









11. In contrast to the primary dissent, we do not hold the Sheriff and his deputies to the standard of care required of medical personnel. Assuming that the plaintiff-petitioner is ultimately able to establish the facts as pled in her complaint, the trial court should instruct the fact finder to hold the Sheriff and his deputies to the standard of care required of reasonable law-enforcement officers under like circumstances. On remand, it remains for the parties to contend precisely what this standard required of the deputies vis-à-vis the decedent. Therefore, the question of whether the deputies breached this standard of care is properly a question for the finder of fact, not our dissenting colleagues. See, e.g., Williams v. Davis, 974 So. 2d 1052, 1057 n.2 (Fla. 2007).











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Powell, 262 So. 2d 881 (Fla.1972); Popwell v. Abel, 226 So. 2d 418 (Fla. 4th DCA 1969)). Bearing this standard in mind, the plaintiff-petitioner's second amended complaint reveals several material facts. Kelly Wallace, who was then outside the state of Florida, placed several phones calls to her mother Brenda's Florida home, which inexplicably were unanswered. Kelly then contacted Marjorie Ginder, Brenda's neighbor, to ascertain whether Brenda was safe. Ginder agreed to do so and to dial 911 if necessary.12 Ginder then proceeded next door to Brenda's home and repeatedly knocked on its doors and windows. Because there was no response, Ginder dialed 911. Two Marion County Sheriff's deputies responded to the call and arrived to aid Brenda. Upon arrival, Ginder provided the deputies with background information concerning Brenda's situation. One of the deputies actually entered the home through an unlocked window and allowed the other deputy, Ginder, and Ginder's father to enter. The deputies found Brenda lying in a makeshift bed in her living room. She was breathing but totally unresponsive. In an attempt to rouse Brenda, the deputies repeatedly screamed her name and









12. In contending that Ms. Ginder should be subject to tort liability for her assistance in this case, the primary dissent ignores that the second amended complaint alleges that the plaintiff-petitioner requested that Ms. Ginder check on the decedent and then dial 911 if necessary. Ms. Ginder did so, and, as alleged in the complaint, she then relied upon the affirmative actions and assertions of the responding deputies (as did the plaintiff-petitioner).










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