City of Daytona Beach v. Palmer

• Decision Date: 04 April 1985
• Docket Number: No. 64773,64773
• Citation: 10 Fla. L. Weekly 189,469 So.2d 121
• Parties: 10 Fla. L. Weekly 189 CITY OF DAYTONA BEACH, Petitioner, v. Helen B. PALMER, etc., Respondent.
• Court: Florida Supreme Court

Page 121

469 So.2d 121

10 Fla. L. Weekly 189

CITY OF DAYTONA BEACH, Petitioner, v. Helen B. PALMER, etc., Respondent.

No. 64773.

Supreme Court of Florida.

April 4, 1985.

Rehearing Denied June 7, 1985.

Alfred A. Green, Jr. and Frank B. Gummey, III, Daytona Beach, for petitioner.

Fred S. Disselkoen, Jr. of Duffett, Seps and Akers, Ormond Beach, for respondent.

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

OVERTON, Justice.

This cause is before us on petition to review Palmer v. City of Daytona Beach, 443 So.2d 371 (Fla. 5th DCA 1983), in which the district court held that a cause of action exists for a private property owner against the city for the negligent discretionary acts of its firemen in combatting a fire. In so holding, the district court certified the following question as being of great public importance:

Can a city be held liable in tort to a property owner for damages caused by the negligent acts of the city's fire-fighters in combating a fire?

443 So.2d at 372. We restate the question as follows:

May a governmental entity which provides fire protection be held liable in tort to a property owner for damages caused by negligent discretionary decisions of fire-fighters in determining how to combat a fire?

We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We answer the restated question in the negative and quash the decision of the district court.

The complaint upon which this action is based alleged that the fire occurred in an office building in which William Palmer (respondent's husband; now deceased) had his office; that Palmer was called to the fire scene and requested by the firemen to unlock his office doors to provide access to his property; that standard fire-fighting practices required the fire department employees to remove or allow Palmer to remove the items of personal property that could be safely removed from his office; that the firemen temporarily terminated their fire-fighting efforts during a work shift change; that the fire-fighters opened upstairs windows in Palmer's office in contravention of standard fire-fighting practices; and that the fire-fighting unit's platoon commander, by reason of the above conduct, exhibited a clear lack of proper decision-making and supervisory skills, which failure was the proximate cause of the destruction of Palmer's office equipment, library, and professional records.

The trial court dismissed Palmer's complaint for failure to state a cause of action. On appeal, the district court reversed, finding the complaint stated a cause of action and concluding that this conduct was operational-level negligence for which the city government could be held liable. 443 So.2d at 371.

This Court addressed the issue of governmental tort liability in the enforcement of laws in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985). In Trianon, we stated that before a governmental entity may be held liable for the negligent acts of its employees, there must first be a determination that there was an underlying common law or statutory duty of care existing with respect to the alleged negligent conduct. At 917. In accordance with our decisions in Trianon and Everton v. Willard, 468 So.2d 936 (Fla.1985), we conclude that there has never been a common law duty of care to individual property owners to provide fire protection services. Further, we find no statutory duty of care upon which to base governmental liability for such conduct.

In Trianon we stated that "there is no governmental tort liability for the action or inaction of governmental officials or employees in carrying out the discretionary governmental functions [of enforcing the laws and protecting the public safety] because there has never been a common law duty of care with respect to these ... police power functions, and the statutory waiver of sovereign immunity did not create a new duty of care." At 921. (Emphasis added.)

The decisions of how to properly fight a particular fire, how to rescue victims in a fire, or what and how much equipment to send to a fire, are discretionary judgmental decisions which are inherent in this public safety function of fire protection. A substantial majority of jurisdictions that have addressed the issue of governmental liability for asserted negligent conduct in responding to and fighting fires have reached this same conclusion. See Biloon's Electrical Service, Inc. v. City of Wilmington, 401 A.2d 636 (Del.Super.1979), aff'd 417 A.2d 371 (Del.1980); Bagwell v. City of Gainesville, 106 Ga.App. 367, 126 S.E.2d 906 (1962); Chandler Supply Co. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983); City of Hammond v. Cataldi, 449 N.E.2d 1184 (Ind.App.1983); Cross v. City of Kansas City, 230 Kan. 545, 638 P.2d 933 (1982); Frankfort Variety, Inc. v. City of Frankfort, 552 S.W.2d 653 (Ky.1977); Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981); LaDuca v. Town of Amherst, 53 A.D.2d 1011, 386 N.Y.S.2d 269 (1976); Valevais v. City of New Bern, 10 N.C.App. 215, 178 S.E.2d 109 (1970); Aldrich v. City of Youngstown, 106 Ohio St. 342, 140 N.E. 164 (1922); Rake v. City of Tulsa, 376 P.2d 261 (Okla.1962). To hold a city liable for the negligent decisions of its fire-fighters would require a judge or jury to second guess fire-fighters in making these decisions and would place the judicial branch in a supervisory role over basic executive branch, public protection functions in violation of the separation of powers doctrine.

We distinguish these types of discretionary fire-fighting decisions from negligent conduct resulting in personal injury while fire equipment is being driven to the scene of a fire or personal injury to a spectator from the negligent handling of equipment at the scene. Governmental entities are clearly liable for this type of conduct as a result of the enactment of section 768.28, Florida Statutes (1983).

In conclusion, we hold that if there is to be a duty to individual property owners upon which the liability of a...