Kaisner v. Kolb

Decision Date30 March 1989
Docket NumberNo. 71121,71121
Citation543 So.2d 732,14 Fla. L. Weekly 138
Parties14 Fla. L. Weekly 138 Glenn KAISNER, et ux., Petitioners, v. Gary Joseph KOLB, et al., Respondents.
CourtFlorida Supreme Court

Daniel C. Kasaris of Yanchuck, Thompson, Young, Berman & Latour, P.A., St. Petersburg, for petitioners.

Rex E. Delcamp and Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for respondents.

Robert King High, Jr. and Robert M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, amicus curiae for the Academy of Florida Trial Lawyers.

George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, amicus curiae for Florida Sheriff's Self-Ins. Fund.

BARKETT, Justice.

We have for review Kaisner v. Kolb, 509 So.2d 1213 (Fla. 2d DCA 1987), based on express and direct conflict with Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision below and remand.

On June 29, 1979, Glen Kaisner, his wife and five children were traveling in a pickup truck on a St. Petersburg street when they were stopped for an expired inspection sticker. Two officers in a police cruiser, Jones and Kolb, pulled Kaisner into the curb lane and parked their vehicle about one vehicle length behind. At this time, Mr. Kaisner left the pickup truck and walked between the two vehicles. One of the officers approached Mr. Kaisner, told Mr. Kaisner not to come any closer, and then returned to the cruiser. After some minutes passed, Deputy Jones left his vehicle. Kaisner simultaneously began moving toward the officer. At this moment, the police cruiser unexpectedly was hit from behind by another vehicle, and was propelled forward into the pickup truck. Both Kaisner and Deputy Jones were struck.

The Kaisners brought an action against the two deputies, the Pinellas County Sheriff's Department and American Druggist Insurance Co., insurer of the police cruiser. The second amended complaint alleges that the deputies breached a duty of care by failing to use proper police procedure in the stop. An affidavit from an expert in police procedure supported this contention and stated that the deputies' negligence proximately caused the Kaisners' losses. Nevertheless, the trial court granted summary judgment in favor of all defendants.

The Second District affirmed. 509 So.2d at 1220. 1 In its essential holdings, the district court concluded that (1) the officers had engaged in an act peculiarly governmental in nature that thus was discretionary and immune from suit; (2) notwithstanding the immunity, no duty of care existed under section 314A of the Restatement (Second) of Torts (1979); and (3) there was no waiver of sovereign immunity up to the limits of insurance coverage. This review ensued.

The state of Florida has waived sovereign immunity for any act for which an individual in similar circumstances could be held liable. § 768.28, Fla.Stat. (Supp.1980). On the face of the statute, this waiver does not attempt to distinguish between particular kinds of governmental acts.

Realizing, however, that the judiciary is ill-equipped to interfere in the fundamental processes of the executive and legislative branches, this Court consistently has held that there remains a sphere of governmental activity immune from suit. In reviewing our case law on this point, we recognize that this governmental immunity has been described in many ways.

For instance, we sometimes have attempted to resolve issues involving governmental immunity by reference to the tort law concept of duty of care. As is self-evident, the waiver of sovereign immunity did not of itself create any new duties of care. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). Starting from this premise, we have based some of our holdings on the principle that there can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances. Id. As the California Supreme Court noted, " '[c]onceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.' " Williams v. State, 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 235, 664 P.2d 137, 139 (1983) (quoting Davidson v. City of Westminister, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (1982)).

Trianon essentially rests on this principle and thus stands for the proposition that a city has no duty to enforce a building code for the benefit of particular individuals. In such circumstances, there can be no liability. 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 parallel question of the duty of care. While a duty certainly must exist for there to be liability, the question of governmental immunity does not itself depend upon this determination. That is, a court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim. Trianon disposed of the issue by reference to the first of these.

In this case, we find that petitioner was owed a duty of care by the police officers when he was directed to stop and thus was deprived of his normal opportunity for protection. Under our case law, our courts have found liability or entertained suits after law enforcement officers took persons into custody, otherwise detained them, deprived them of liberty or placed them in danger. E.g., Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957) (liability when inmate died of smoke inhalation in negligently attended jail); Department of Highway Safety and Motor Vehicles v. Kropff, 491 So.2d 1252 (Fla. 3d DCA 1986) (liability for injury caused by officer's negligence during roadside stop); Walston v. Florida Highway Patrol, 429 So.2d 1322 (Fla. 5th DCA 1983) (liability for injury caused by officer's negligence during roadside stop); White v. Palm Beach County, 404 So.2d 123 (Fla. 4th DCA 1981) (liability for violence and sexual abuse suffered by inmates in jail); Henderson v. City of St. Petersburg, 247 So.2d 23 (Fla. 2d DCA) (liability for injury to police informant after police knew he was in danger for cooperating with authorities), cert. denied, 250 So.2d 643 (Fla.1971). So long as petitioner was placed in some sort of "custody" or detention, he is owed a common law duty of care.

The term "custody" is defined as

the detainer of a man's person by virtue of lawful process or authority.

The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.

Black's Law Dictionary 347 (5th ed. 1979) (emphasis added). We thus conclude that "custody" need not consist of the formal act of an arrest, but can include any detention.

It is apparent that the district court took too restrictive a view of the term "custody" in this instance. Petitioner and his family unquestionably were restrained of their liberty when they were ordered to the roadside. They were not free to leave the place where the officers had ordered them to stop. Petitioner effectively had lost his ability to protect himself and his family from the hazard at hand, which consisted of onrushing traffic. The only way petitioner could have escaped this threat would have been by disobeying the officers' instructions that he remain in the general area where they had stopped him, thus subjecting himself to immediate arrest and criminal charges. Under these circumstances, petitioner clearly was sufficiently restrained of liberty to be in the "custody" or control of the police. Thus, the officers owed him and his family a duty of care arising under the common law of Florida.

This conclusion is supported by decisions of the district courts addressing factual issues similar to those presented here. Kropff; Walston. Accord Wood v. Ostrander, 851 F.2d 1212 (9th Cir.1988); White v. Rochford, 592 F.2d 381 (7th Cir.1979). In Walston, a case whose facts are indistinguishable from the present action, the Fifth District reversed a directed verdict in favor of the state. Although not addressing the immunity issue, the Walston court concluded that a question of foreseeability existed when an officer detained a person at roadside despite evidence of the danger posed by onrushing traffic. 429 So.2d at 1324. As in the present case, the detainee in Walston was injured when a third vehicle struck a vehicle parked on the roadside as a result of the police's actions. Id.

In Kropff, the Third District confronted an injury caused by actions taken by an officer while investigating an accident along a busy roadway. One of the persons involved in the accident was assisting in the roadside investigation and was struck when she followed the officer into the roadway. Specifically addressing the question of whether Trianon barred recovery, the Kropff court found that the trooper's actions in securing the scene of an accident were operational in nature and thus not immune. Kropff, 491 So.2d at 1255 n. 2. The court then agreed that a duty of care existed that would support liability. Id. at 1255.

This conclusion also is supported by the law of other jurisdictions, whose courts generally agree that liability may exist because of injuries caused when a vehicle driven by a third party collides with persons or vehicles stopped on the roadside by the police.

For instance, our sister court in North Carolina has determined that liability can exist where a police car, after stopping another vehicle, was left partially jutting into the roadway with no lights burning to warn approaching traffic. Kinsey v. Town of Kenly, 263 N.C....

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