Broward Cnty. v. Manarite ex rel. G.M.

• Decision Date: 02 February 2022
• Docket Number: 4D21-2328
• Parties: BROWARD COUNTY, Appellant, v. Christina MANARITE, individually and on behalf of G.M., a minor child, Alberto Castro, Central Broward Water Control District, Waste Management Inc. of Florida d/b/a Waste Management, and Town of Davie, Appellees.
• Court: Florida District Court of Appeals

333 So.3d 1130

BROWARD COUNTY, Appellant,

v.Christina MANARITE, individually and on behalf of G.M., a minor child, Alberto Castro, Central Broward Water Control District, Waste Management Inc. of Florida d/b/a Waste Management, and Town of Davie, Appellees.

No. 4D21-2328

District Court of Appeal of Florida, Fourth District.

[February 2, 2022]

Andrew J. Meyers, County Attorney, and Joseph K. Jarone, Assistant County Attorney, Fort Lauderdale, for appellant.

Mervin L. Ford of Mervin L. Ford, P.A., Miami, for appellee Christina Manarite.

Gerber, J.

The county appeals from the circuit court's nonfinal order denying the county's "Motion to Dismiss the Amended Complaint Based Upon Sovereign Immunity for Discretionary Functions." The county argues the circuit court erred in denying the county's motion where the plaintiff's amended complaint: (1) alleged the county was negligent in its discretionary planning-level functions; and (2) did not allege the county created the alleged known dangerous condition which was the subject of the plaintiff's action.

We agree with the county's arguments. We reverse the circuit court's order, and remand for the circuit court to enter a final order granting the county's motion to dismiss and dismissing the county from the action with prejudice.

A. The Plaintiff's Amended Complaint

The plaintiff's amended complaint contained the following general allegations. In 2018, the plaintiff's minor child was riding a bicycle on a path along a major street in the Town of Davie when the child approached a work site being maintained by an independent water control district. At the work site, a waste company's dumpsters had been placed in the bike path, causing the child to leave the bike path and travel on the street. The child was then struck by a vehicle driving down the street. As a result, the child suffered severe and permanent injuries.

The plaintiff's amended complaint alleged separate negligence counts against the vehicle's driver, the waste company, the water control district, the town, and the county. The plaintiff's specific allegations against the county were as follows:

72. On the date of the accident[,] [the county] was responsible for monitoring worksites within its boundaries and assuring that all safety measures are taken in accordance with town and county ordinances.

73. [The county] negligently failed to assure that all safety guidelines [were] put in place to protect citizens when public rights of way are affected.

74. [The county's] negligent supervision contributed to creating a dangerous environment that ultimately led to the subject accident that led to the severe permanent injuries suffered by [the child].

....

76. The [c]ounty knew or should have known of the work being conducted within its county limits.

77. ... [A]s per City of St. Petersburg v. Collom , [419 So. 2d 1082 (Fla. 1982),] ... [the county] owed a duty to protect the public against known dangers or hazards.

78. [The county] breached its duty by failing to protect the public against the foreseeable hazard created by the worksite and work being conducted within its boundaries.

79. [The county's] breach was a proximate cause that led to the severe and permanent injuries suffered by [the child].

80. The negligence of ... [the county] consisted of the following:

[a.] Negligently failing to assure that traffic was redirected due to the blockage of the pedestrian walkway.

[b.] Negligently failing to assure the use [of] traffic control devices given that a pedestrian walkway was blocked because of its work.

[c.] Negligently failing [to] assure that additional workers were on site to spot and[/]or direct traffic and pedestrians.

[d.] Negligently failing to assure that precautions were taken to avoid foreseeable injuries to pedestrians using the subject right of way.

(paragraph 80's subparagraph enumeration corrected).

B. The County's Motion to Dismiss and the Circuit Court's Ruling

The county filed a "Motion to Dismiss the Amended Complaint Based Upon Sovereign Immunity for Discretionary Functions" with an incorporated memorandum of law. The county pertinently argued:

The [county] is not alleged to have been physically present at the location of the worksite and accident, nor actively participating in the ... operations. The [c]ounty is not alleged to have interacted with the plaintiff, the other defendants, or otherwise undertook some operational level action(s) involving the "project" or the "worksite." Rather, all of the negligence allegations directed toward the [county] are in the form of "failures" to act.

These allegations can be fairly characterized as claiming the [c]ounty was negligent because it was not there and did not involve itself in the project to ensure regulations were followed. The [p]laintiff is attempting to attach liability to the [c]ounty based upon a theory that the [c]ounty's failure to enforce unspecified regulations over the defendants who were actively involved in the project, states a cognizable cause of action. The [county] owed no duty of care specifically or personal to the [p]laintiff as a matter of clearly established and longstanding Sovereign Immunity law. This case must be dismissed with prejudice because the only duties here are duties owed to the public as a whole. The [county] is also sovereignly immune from suit for failing to enforce, or police the unspecified regulations of paragraph 80 of the complaint.

...

[T]he "failures" or omissions alleged against the county are all discretionary functions for which the [c]ounty is sovereignly immune from suit. The issue of whether the [c]ounty could be liable for its failure to enforce laws, ordinances or regulations as framed in the complaint ... has been conclusively determined in the negative by the Florida Supreme Court in the case of Trianon Park Condo. Assoc. v. City of Hialeah , 468 So. 2d 912, 918 (Fla. 1985) (finding that "certain discretionary functions of government are inherent in the act of governing and are immune from suit["]).

After a hearing, the circuit court orally denied the county's motion to dismiss, reasoning, "I reviewed ... the amended complaint, and I do find the allegations sufficient. They were sufficiently pled. The arguments raised by the county ... are great for a summary judgment but not at this stage of litigation."

After the circuit court's oral ruling, the following discussion occurred between the county's attorney and the circuit court:

COUNTY ATTORNEY: Judge, I'm going to prepare the order and I just want to make sure that I correctly reflected your ruling. The Court is ... finding that the county is not entitled to sovereign immunity at this juncture and the motion is therefore denied ...?

COURT: Motion is denied, the allegations in the amended complaint are sufficiently pled ....

COUNTY ATTORNEY: And what [t]he Court finding is that the county is not entitled to sovereign immunity at this juncture.

COURT: ... I didn't say that.

COUNTY ATTORNEY: ... Judge, I need the record to reflect directly if ... [you] denied our motion on sovereign immunity grounds because it's an appealable issue.

....

COURT: The motion is denied for the reason stated on the record, sir. Thank you.

The circuit court later entered a written order stating it had denied the county's motion to dismiss for the reasons stated on the record.

C. This Appeal

This appeal followed. The county argues the circuit court erred in denying the county's sovereign immunity-based motion to dismiss where the plaintiff's amended complaint: (1) alleged the county was negligent in its discretionary planning-level functions; and (2) did not allege the county created the alleged known dangerous condition which was the subject of the plaintiff's action.

The plaintiff raises three responses: (1) the county did not preserve any alleged error because the county's motion to dismiss primarily argued the county owed no duty to the child, and "only briefly mention[ed] how sovereign immunity may apply"; (2) even if the county raised a sovereign immunity argument, the circuit court's nonfinal order denying the county's motion to dismiss was not appealable under Florida Rule of Appellate Procedure 9.130, because the circuit court's ruling did not address the county's sovereign immunity argument; and (3) the circuit court properly did not address the county's sovereign immunity argument because such an argument, when raised in a motion to dismiss, was premature.

We agree with the county's arguments. We address the county's arguments and the plaintiff's responses in turn.

1. The plaintiff's amended complaint alleged the county was negligent in its discretionary planning-level functions, thus entitling the county to sovereign immunity.

Section 768.28, Florida Statutes (2018), partially waives a governmental entity's sovereign immunity for tort actions. However, as our supreme court has held, this limited waiver applies only to the governmental entity's operational functions, not the governmental entity's discretionary planning-level functions:

The separation-of-powers provision present in article II, section 3 of the Florida Constitution requires that certain quasi-legislative policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability. On the other hand, decisions made at the operational level—decisions or actions implementing policy, planning, or judgmental governmental functions—generally do not enjoy sovereign immunity. Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.

Sch. Bd. of Broward Cnty. v. McCall , 322 So. 3d 655, 657 (Fla. 4th DCA 2021) (internal citations, brackets, and quotation marks omitted); see also Com. Carrier Corp. v. Indian River Cnty. , 371 So. 2d 1010, 1022 (Fla. 1979) (a governmental entity's discretionary functions "may not be subjected to scrutiny by judge or jury as to the wisdom of their performance").

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