Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 47873

• Decision Date: 24 November 1976
• Docket Number: No. 47873,47873
• Citation: 339 So.2d 1113
• Parties: . DEPARTMENT OF NATURAL RESOURCES of the State of Florida, Appellee. Supreme Court of Florida
• Court: Florida Supreme Court

Page 1113

339 So.2d 1113

CIRCUIT COURT OF TWELFTH JUDICIAL CIRCUIT, and the Honorable Evelyn Gobbie, as Circuit Judge thereof, Appellant, v. DEPARTMENT OF NATURAL RESOURCES of the State of Florida, Appellee.

No. 47873.

Supreme Court of Florida.

Nov. 24, 1976.

C. Eugene Jones, of Ginsburg & Byrd, Sarasota, for appellant.

Jack W. Pierce, General Counsel, Dept. of Natural Resources, Tallahassee, Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., for appellee.

SUNDBERG, Justice.

This case appears before us as the result of a tragic mishap which occurred in Oscar Scherer State Park in Sarasota, Florida. On August 16, 1973, sixteen-year-old Sharon Holmes, having paid an entrance fee, was swimming in a man-made lake located in the park when she was attacked, bitten and killed by an alligator.

Mr. and Mrs. Burton Holmes, as Sharon's parents and personal representatives, brought suit against the Florida Department of Natural Resources, the state agency responsible for administering the state park, and against two other defendants not now before this Court. The Department's alleged liability was predicated on theories of negligence, strict liability in tort, and breach of contract. The plaintiff further alleged that the Department had waived sovereign immunity by engaging in the proprietary function of operating the park.

The Department filed a motion to dismiss the complaint for lack of jurisdiction under the doctrine of sovereign immunity. Finding that under the facts alleged in the complaint the Department had waived sovereign immunity, the trial judge denied the motion.

Appellee then took an interlocutory appeal to the District Court of Appeal, Second District, which was dismissed on the authority of State Road Dept. v. Brill, 171 So.2d 229 (Fla.1st DCA 1964).

The Department then filed a suggestion for a writ of prohibition with the District Court of Appeal. That court issued the writ, reasoning that the circuit court lacked subject matter jurisdiction because the Department was protected from suit by sovereign immunity. Department of Natural Resources v. Circuit Court of the 12th Judicial Circuit, 317 So.2d 772.

It is from this decision of the District Court that the Honorable Evelyn Gobbie ('the appellant'), Circuit Court Judge of the Twelfth Judicial Circuit and the trial judge in this case, takes an appeal to this Court. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution, because the District Court of Appeal construed the Florida sovereign immunity provision, Article X, Section 13, which reads as follows:

'Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.'

Appellant asserts that the foregoing language does not preclude waiver of sovereign immunity by means other than legislative enactment or constitutional amendment. Thus it is not fatal to appellant's argument to admit that Section 768.28, Florida Statutes, the current statutory waiver of sovereign immunity in Florida, was not in effect at the time Sharon Holmes was killed. Appellant goes on to argue that by engaging in the proprietary, as opposed to governmental, activity of operating a park and campground, appellee has effectively waived the protection of sovereign immunity.

Contrary to appellant's position, Florida courts have often interpreted the language in Article X, Section 13, Supra, as providing absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. E.g., Spangler v. Florida State Turnpike Auth., 106 So.2d 421 (Fla.1958); Hampton v. State Board of Educ., 90 Fla. 88, 105 So. 323 (1925); Buck v. McLean, 115 So.2d 764, 766 (Fla.1st DCA 1959). Cases such as Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), this Court's landmark decision modifying the sovereign immunity of municipalities, are distinguishable precisely because they involve municipal corporations, not the state or its agencies. The governmental/proprietary distinction, which has on occasion been viewed as a test for waiver of sovereign immunity, has almost invariably been crucial only in the cases involving municipalities. ¹ See Seligman & Beals, The Sovereignty of Florida Municipalities, 50 Fla.B.J. 338 (1976), for the view that existing precedent has led to some confusion over the viability of the distinction in the municipal area. We are not called upon today to reconcile whatever conflict in precedent may exist in that area of the law. Seligman and Beals further state, 'While the State of Florida has always enjoyed sovereign immunity with respect of the torts of state employees, municipalities have not enjoyed full derivative immunity,' and appellant has been unable to direct our attention to a single case which undermines the accuracy of that statement.

When reduced to its essentials, appellant's argument, as we see it, is built around three principal cases. Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (1952), is relied on for the proposition that a county-owned and operated activity is not immune from suit if it is engaged in a proprietary as opposed to a governmental function. Butts v. County of Dade, 178 So.2d 592 (Fla.3d DCA 1965), allegedly extends the waiver of sovereign immunity for proprietary functions undertaken by municipalities to such activities performed by counties as well. Since counties are subdivisions of the state, Butts, it is argued, should be read as affecting the issue of the applicability of the governmental/proprietary distinction to entities such as the state agency which is a party defendant in this case. In addition to Butts, Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla.1953), is said to stand for the proposition that suits against governmental agencies are allowable on a contract theory, one of the theories of action utilized by the plaintiffs in this case. We will deal with these three decisions seriatim.

In Suwannee County Hospital Corp. v. Golden, supra, a husband and wife sued the appellant, a non-profit corporation created by a special act setting up a county hospital district, to recover damages for injuries occasioned by the negligent application of hot water bottles to the wife while she was a patient in the defendant's hospital. The Supreme Court held that the special act which immunized the hospital from liability for the negligent acts of its officers, agents and employees did not preclude recovery by an injured, paying patient. We read this decision as holding only that a public corporation whose functions are local rather than state-wide does not share the sovereign immunity of the state. The attempted statutory immunization of a local hospital district cannot be equated with a constitutional immunity from suit by which, as noted previously, the appellee is protected. See Loucks v. Adair, 312 So.2d 531 (Fla.1st DCA 1975). So Suwannee County Hospital Corp. is hardly controlling of the result in the instant case.

Butts v. County of Dade, supra, held that paying passengers may sue a county to recover for injuries received due to negligence in the operation...