348 F.2d 197 (5th Cir. 1965), 21223, City of Green Cove Springs v. Donaldson

Docket Nº:21223.
Citation:348 F.2d 197
Case Date:June 28, 1965
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 197

348 F.2d 197 (5th Cir. 1965)




No. 21223.

United States Court of Appeals, Fifth Circuit.

June 28, 1965

Page 198

John E. Mathews, Jr., Marion R. Shepard, Mathews, Osborne & Ehrlich, Jacksonville, Fla., for appellant.

Will O. Murrell, Arthur T. Boone, Jacksonville, Fla., for appellee.

Before JONES and GEWIN, Circuit Judges, and ESTES, District Judge.

JONES, Circuit Judge.

This action was brought against appellant, a Florida municipal corporation, by

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the appellee, Mrs. Yvonne Donaldson, to recover damages sustained as a result of the actions of an employee of the City of Green Cove Springs. Jurisdiction was based upon diversity of citizenship. A judgment was recovered in the amount of $9,000, and costs. After an appeal to this Court was perfected, the appellee moved for a certification of the controlling question to the Supreme Court of Florida. The motion was denied.

The facts are virtually undisputed. At about 9:00 o'clock in the evening of July 10, 1960, Mrs. Donaldson and a companion, Mrs. Wells, left the Donaldson home in Mayport, Florida, and drove to Green Cove Springs. After arriving there and driving around for several hours, the two women began their journey home, and were then stopped by two police officers employed by the City and driving an official vehicle. The officers were on duty at the time. The record shows that the initial reason for the arrest was that Mrs. Donaldson was slightly exceeding the speed limit, for which the officers intended to give her a mere warning. Upon further investigation it appeared that there was something irregular about the automobile license tag, and Mrs. Donaldson was requested to follow the officers to the city jail so the tag could be checked.

Upon her arrival at the city jail, Mrs. Donaldson was informed that she would have to post a $35.00 bond or be placed in jail for the improper tag. At this time, the parties were standing in a parking lot behind the jail. At no time did they enter the jail building. Mrs. Donaldson asked to use a telephone. The only telephone in the jail was restricted to use for fire calls and the officers took the two women to the police station, about five blocks away. The trip to the police station was taken in the police car. Mrs. Donaldson had given her automobile keys to the officers. After their arrival at the station, the two women were left standing in front while the two officers answered a police call. No other policemen were on duty at this time. The record indicates that Mrs. Donaldson entered the police station to get some coffee and noticed some shore patrolmen there, but did not speak to them or use the telephone, because 'there was no one to call.'

When the officers returned, one of them took Mrs. Wells to her home at Mayport in his private automobile. The other police officer, Mosely, and Mrs. Donaldson got into the police car and drove back to the city jail. At no time was the plaintiff booked or issued a citation; nor was she ever taken into the jail. When they arrived at the jail, Mosely said there was no one there, and drove to a point near a railroad track, a short distance away. Mosely stopped the car, 'propositioned' Mrs. Donaldson several times, and then assaulted her. According to the plaintiff's testimony, she resisted for approximately forty-five minutes, until Mosely overcame her and succeeded in raping her. The next thing she remembered was driving home. The jury returned a verdict for Mrs. Donaldson, and the City has appealed from the judgment entered on the verdict.

The City specifies as error the failure of the trial court to direct a verdict in its favor at the close of the evidence. After alleging the facts set forth above, the complaint stated that the City, 'carelessly and negligently failed to protect the plaintiff and suffered, allowed and permitted the plaintiff to be violently assaulted and debauched * * *.' The initial question is whether the evidence, viewed most favorably for the plaintiff, can support the judgment on the theory that the City was negligent. Ross v. Hayes, 5th Cir. 1964, 337 F.2d 691. We hold that it cannot.

Since the decision of the Florida Supreme Court in Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, Florida municipal corporations are liable for injuries resulting from the negligence of their agents under principles of respondeat superior. They are immune from such liability for injuries arising from the exercise of legislative, judicial,

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quasi-legislative, or quasi-judicial functions, but in all other respects, the liability of a Florida municipality for the negligence of its agents is to be determined upon the same principles that govern private corporations, one of which is the doctrine of proximate cause. Seaboard Air Line Railway Co. v. Mullin, 1915, 70 Fla. 450, 70 So. 467, L.R.A. 1916D, 982.

The principal claim of the plaintiff at the trial was that the City was negligent in failing to provide a matron at the city jail to insure against assault of the kind perpetrated by Officer Mosely. This was the view of the trial court in denying the City's motion for a directed verdict, on the theory that a jury might resonably find that the City was negligent, and that its negligence was the proximate cause of the plaintiff's injury. We think this view overlooks the fact that at no time did plaintiff or Officer Mosely enter the city jail or otherwise make their presence known to anyone who might have been inside. Consequently, the presence or absence of a matron in the jail bore no causal relation to the plaintiff's injury. Causation in fact is an essential element of proximate cause in Florida. Seaboard Air Line Railway Co. v. Mullin...

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