3 So.3d 1035 (Fla. 2009), SC08-149, Wallace v. Dean

Docket Nº:SC08-149.
Citation:3 So.3d 1035, 34 Fla. L. Weekly S 52
Opinion Judge:LEWIS, J.
Party Name:Kelly WALLACE, Petitioner, v. Ed DEAN, Sheriff of Marion County, Respondent.
Attorney:Sharon H. Proctor, Lake Saint Louis, MO, and Mark A. Avera of Avera and Smith, LLP, Gainesville, FL, for Petitioner. Bruce R. Bogan of Hilyard, Bogan and Palmer, P.A., Orlando, FL, for Respondent.
Case Date:January 29, 2009
Court:Supreme Court of Florida

Page 1035

3 So.3d 1035 (Fla. 2009)

34 Fla. L. Weekly S 52

Kelly WALLACE, Petitioner,


Ed DEAN, Sheriff of Marion County, Respondent.

No. SC08-149.

Supreme Court of Florida.

January 29, 2009

Rehearing Denied Feb. 25, 2009.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Sharon H. Proctor, Lake Saint Louis, MO, and Mark A. Avera of Avera and Smith, LLP, Gainesville, FL, for Petitioner.

Bruce R. Bogan of Hilyard, Bogan and Palmer, P.A., Orlando, FL, for Respondent.


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 governmental actors and entities.2 Of particular significance is the First District's decision in

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Hartley v. Floyd, 512 So.2d 1022 (Fla. 1st DCA 1987), which applied 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 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

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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 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. 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

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tortious acts is the operational/planning formula set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979)." ).


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; (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

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as a recognized common-law basis for imposing a duty of care and also 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 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 Keeton 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

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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....

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