Garcia v. City of Hollywood

• Decision Date: 06 June 2007
• Docket Number: No. 4D06-970.,4D06-970.
• Citation: 966 So.2d 5
• Parties: Rocio GARCIA, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents, Appellants, v. CITY OF HOLLYWOOD, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

966 So.2d 5

Rocio GARCIA, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents, Appellants, v. CITY OF HOLLYWOOD, a political subdivision of the State of Florida, Appellee.

No. 4D06-970.

District Court of Appeal of Florida, Fourth District.

June 6, 2007.

Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Marcos A. Gonzalez, Coral Gables, for appellants.

Daniel L. Abbott, City Attorney, and Tracy A. Lyons, Assistant City Attorney, Hollywood, for appellee.

PER CURIAM.

We withdraw our opinion issued February 21, 2007 and replace it with this opinion.

Rocio Garcia, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents ("Garcia"), appeal a final summary judgment entered in favor of the City of Hollywood ("City"). This case involves personal injuries sustained by the minor, Rocio Garcia, who as a pedestrian was struck by a vehicle owned by the City and operated by one of its police officers, Sergeant Norris Redding ("Sergeant Redding"). The trial court concluded that at the time of the accident in question, Sergeant Redding, who was driving to the police station, was not in the course and scope of his employment with the City, and therefore the City was not liable as a matter of law. We affirm.

The accident in question occurred at approximately 6:00 a.m. on May 19, 2004. At that time, Sergeant Redding was driving to the police station in a marked "take-home" vehicle owned by his employer, the City. Sergeant Redding testified that the "take-home" policy provided that the vehicle could be driven to and from work. On the morning of the accident, Sergeant Redding was driving to the police station from home on the route that he had been taking on a daily basis for five or six years. Sergeant Redding's shift was to begin at 7 a.m. and he was going in one hour early that morning to study for the Lieutenant's exam which was to take place several months later. As he was driving that morning, he struck and seriously injured the minor Garcia as she attempted to cross a roadway in an effort to reach her school bus.

The vehicle "take-home" policy was part of the Collective Bargaining Agreement between the Broward County PBA and the City which provided in part that the purpose of the vehicle "take-home" policy was to provide the appearance of additional police presence. Sergeant Redding's supervisor, Major Frank McGarry, testified that "take-home" vehicles are part of the City's employment package and are "only permitted to be used portal to portal or for off-duty details." McGarry testified that if a police officer is going to or from home in a police vehicle and witnesses a crime being committed, the officer must stop and take action. The officer must also be dressed in uniform and armed when operating a police vehicle.

Garcia asserts a jury issue exists regarding the "course and scope of employment" because (1) at the time of the accident, Sergeant Redding was operating a vehicle provided to him by his employer to be used only for transportation to and from work, (2) the "take-home" vehicle was part of the City's employment package, and (3) Sergeant Redding was required to be in uniform while operating the vehicle.

The City argues in response that the trial court properly granted its motion for summary judgment as a matter of law because the uncontradicted testimony established that Sergeant Redding had yet to begin work when the accident occurred and was merely driving to the police station an hour before his shift began to study for an exam prior to beginning work. The City notes that although Sergeant Redding was driving a City-owned police vehicle, the Florida Supreme Court has held that our waiver of sovereign immunity statute, section 768.28(1), Florida Statutes (2004), does not waive sovereign immunity under the dangerous instrumentality doctrine. Rabideau v. State, 409 So.2d 1045, 1046 (Fla.1982) ("twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee's scope of employment").

In Foremost Dairies, Inc. v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946), a claimant sued a corporation for the negligence of an employee who injured the claimant while driving a car to work which the employee owned. The corporation paid for fuel and repairs. The claimant recovered a judgment on the theory that the driver was engaged in the business of the corporation at the time of the accident, but the Florida Supreme Court reversed, holding that an employee, "merely going to or from work in his own car," is not in the course of his employment as a matter of law. Id. at 774 (quoting Bourus v. Hagen et al., 192 Wash. 588, 74 P.2d 205 (Wash. 1937)). In Everett Ford Co. v. Laney, 189 So.2d 877 (Fla.1966), an employee...