Carter v. City of Stuart

• Decision Date: 04 April 1985
• Docket Number: No. 64001,64001
• Citation: 10 Fla. L. Weekly 198,468 So.2d 955
• Court: Florida Supreme Court
• Parties: 10 Fla. L. Weekly 198 Leila CARTER, mother and natural guardian of Charles Durham, a minor, Petitioner, v. CITY OF STUART and Aetna Casualty & Surety Company, Respondents.

Page 955

468 So.2d 955

10 Fla. L. Weekly 198

Leila CARTER, mother and natural guardian of Charles Durham, a minor, Petitioner, v. CITY OF STUART and Aetna Casualty & Surety Company, Respondents.

No. 64001.

Supreme Court of Florida.

April 4, 1985.

Vicki J. Junod of Gamba, Junod & Schott, Palm City, for petitioner.

Everett J. Van Gaasbeck of Moss, Henderson & Lloyd, Vero Beach, and Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for respondents.

James R. Wolf, Gen. Counsel, and Harry Morrison, Jr., Asst. Gen. Counsel, Tallahassee amicus curiae for the Florida League of Cities, Inc.

McDONALD, Justice.

Responding to a certified question from the Fourth District Court of Appeal, ¹ we answer the question: "Can a city be held liable for the failure to enforce its animal control ordinance?" ² Within the factual context of the case before us we hold that it cannot.

Leila Carter sued the City of Stuart to recover damages suffered when a dog which had escaped its confinement on private property within the city attacked and severely injured her minor child, Charles Durham. Carter based her action against the city primarily upon the city's failure to enforce its ordinance requiring impoundment of both dangerous dogs found running at large and dogs that had bitten people. She alleged that the city impoundment officer should have impounded the dog after prior incidents of biting. The trial court entered a final summary judgment for the city, finding that enforcement of the dog control ordinance constituted a planning level governmental decision immune from tort liability under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). The district court affirmed, finding the failure to enforce this dog control ordinance equivalent to the failure to enforce an ordinance limiting hedge and shrub height at intersections, which had been held immune from liability in Elliott v. City of Hollywood, 399 So.2d 507 (Fla. 4th DCA 1981).

The decision of the district court is consistent with our pronouncements in Commercial Carrier. In that opinion this Court found that certain policy-making, planning, or judgmental governmental functions cannot be the subject of traditional tort liability. Recognizing that the act of governing covers myriad factors and considerations, we upheld the principle that governmental entities must be free to make policy, planning, or judgmental decisions without fear of tort liability. After referring to certain precedents from other states, we said:

So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.

371 So.2d at 1022 (emphasis supplied).

To determine whether a specific act or omission is immune, we then adopted a planning level/operational level analysis in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). Planning level functions under Johnson require basic policy decisions and are immune from liability. Operational level functions, on the other hand, merely implement predetermined policy and may subject the governmental entity to tort liability. Applying the Johnson test to the facts in Commercial Carrier, we held that the maintenance of traffic-control devices fell in the operational level category, which could provide a basis for liability. We revisited this issue in Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982), and held that the initial decisions regarding the installation and placement of traffic-control devices are planning level decisions and, therefore, immune from liability as exercises of the government's police power, but that failure to warn of a danger is not.

This Court decided Wong v. City of Miami, 237 So.2d 132 (Fla.1970), before the enactment of section 768.28. Nevertheless, Wong's holding denying liability because of the strategy the city employed in use of its police force is a clear illustration of nonactionable activity because "inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers." Id. at 134.

A government must have the flexibility to set enforcement priorities on its police power ordinances in line with its budgetary constraints. Without the ability to make such choices a government must either pay the high cost of total enforcement or forego the exercise of its police power. Neither option serves the public interest.

Deciding which laws are proper and should be enacted is a legislative function. How and in what manner those laws are enforced is, in most instances, a judgmental decision of the executive branch. The judicial branch should not trespass into the decisional process of either.

Turning to this case, we conclude the city had no liability. The amount of resources and personnel to be committed to the enforcement of this ordinance was a policy decision of the city. The city has the right to set its priorities in reference to law enforcement. One of its employees had previously responded to a complaint concerning several dogs including the dog which ultimately bit Carter's child. ³ When responding to this complaint, this employee observed none of the complained-of dogs off of private property and had no independent knowledge of which dog had previously bitten a person. He had to decide whether to trespass on private property and which dogs he should impound if he did. ⁴ He too made a judgmental decision on behalf of the city which should be immune.

Carter argues that there should be liability here because the circumstances left no room for discretion. The facts are clear that this contention cannot stand. This argument, however, does require our pausing short of saying that in no circumstances may a governmental unit be subjected to liability for the failure to enforce its laws. There may be some compelling circumstances, where there is no room for the exercise of discretion, which mandate action because it is clear that a government's failure to act has caused a breach of duty. Where, if ever, such a situation exists will have to await another claim on another occasion.

The decision of the district court is approved.

It is so ordered.

BOYD, C.J., and OVERTON and ALDERMAN, JJ., concur.

EHRLICH, J., concurs with an opinion.

SHAW, J., dissents with an opinion with which ADKINS, J., concurs.

EHRLICH, Justice, concurring.

I concur in the majority opinion as limited to the facts of this case. The employee responding to the complaint saw no violation of the ordinance. He therefore could not be in breach of his duty to enforce the ordinance.

The next allegation is that he was under a duty to investigate the complaint further, having discovered no immediate grounds for the complaint. This decision involves the strategic allocation of government services which is a quintessential government planning function which is shielded by sovereign immunity.

I write further to address Judge Letts's trenchantly expressed frustration with the lack of a bright line in the delineation of governmental operational and planning functions for purposes of determining sovereign immunity. We recognize that there is no one clear test, applicable to all fact patterns, by which a trial court, or even an appellate court, may separate immune planning-level functions from those areas of negligent operational procedure for which the state has accepted tort liability. This problem is inherent in the nature of the beast: torts come in all shapes and sizes; beyond the hornbook formula of duty, breach of duty, proximate cause and damage, the facts giving rise to claims against the state cover the broadest spectrum of tort liability. The legal adage that hard cases make bad law is never more true than when a court attempts, on a particular set of facts, to resolve all controversy in an entire field of law.

The development of the law of sovereign immunity in Florida has, since the passage of section 768.28, followed the usual pattern of common law development. As a new set of facts arises, the courts apply the general principles set forth in the statutes and in earlier constructions thereof to those facts. If that creates the temporary illusion that the case law is "in disarray," such is the nature of the common law, which does not set out to answer broad questions when narrow issues are presented. We can only commend to the district courts the yeomanlike shouldering of their appellate duty to wrestle with each specific fact pattern to help to fashion a body of law which will, when complete, reveal an orderly disposition of cases. The difficulty is inherent. We will not achieve the ends of justice by fashioning a facile, but inequitable, rule.

I write the foregoing will full knowledge that the majority of the Court has placed a construction on section 768.28 in the cases of Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985); Everton v. Willard, 468 So.2d 936 (Fla.1985); Duvall v. City of Cape Coral, 468 So.2d 961 (Fla.1985); Rodriguez v. City of Cape Coral, 468 So.2d 963 (Fla.1985); City of Daytona Beach v. Huhn, 468 So.2d 963 (Fla.1985); City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla.1985); Reddish v. Smith, 468 So.2d 929 (Fla.1985) with which I disagree and from which decisions I have dissented. The "bright line" which may emerge from those cases is not one that will carry out the legislative intent of section 768.28, in my opinion, and is certainly not one that I would have drawn. Nonetheless, that is a common law process to which I wholeheartedly subscribe. Hopefully, the latest efforts of the Court will not obfuscate but will clarify the law.

SHAW, Justice, dissen...