City of Green Cove Springs v. Donaldson

• Decision Date: 28 June 1965
• Docket Number: No. 21223.,21223.
• Parties: CITY OF GREEN COVE SPRINGS v. Yvonne DONALDSON.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 197 (1965)

CITY OF GREEN COVE SPRINGS v. Yvonne DONALDSON.

No. 21223.

United States Court of Appeals Fifth Circuit.

June 28, 1965.

John E. Mathews, Jr., Marion R. Shepard, Mathews, Osborne & Ehrlich, Jacksonville, Fla., for appellant.

Will O. Murrell, Arthur T. Boone, Jacksonville, Fla., for appellee.

Before JONES and GEWIN, Circuit Judges, and ESTES, District Judge.

JONES, Circuit Judge.

This action was brought against appellant, a Florida municipal corporation, by the appellee, Mrs. Yvonne Donaldson, to recover damages sustained as a result of the actions of an employee of the City of Green Cove Springs. Jurisdiction was based upon diversity of citizenship. A judgment was recovered in the amount of $9,000, and costs. After an appeal to this Court was perfected, the appellee moved for a certification of the controlling question to the Supreme Court of Florida. The motion was denied.

The facts are virtually undisputed. At about 9:00 o'clock in the evening of July 10, 1960, Mrs. Donaldson and a companion, Mrs. Wells, left the Donaldson home in Mayport, Florida, and drove to Green Cove Springs. After arriving there and driving around for several hours, the two women began their journey home, and were then stopped by two police officers employed by the City and driving an official vehicle. The officers were on duty at the time. The record shows that the initial reason for the arrest was that Mrs. Donaldson was slightly exceeding the speed limit, for which the officers intended to give her a mere warning. Upon further investigation it appeared that there was something irregular about the automobile license tag, and Mrs. Donaldson was requested to follow the officers to the city jail so the tag could be checked.

Upon her arrival at the city jail, Mrs. Donaldson was informed that she would have to post a $35.00 bond or be placed in jail for the improper tag. At this time, the parties were standing in a parking lot behind the jail. At no time did they enter the jail building. Mrs. Donaldson asked to use a telephone. The only telephone in the jail was restricted to use for fire calls and the officers took the two women to the police station, about five blocks away. The trip to the police station was taken in the police car. Mrs. Donaldson had given her automobile keys to the officers. After their arrival at the station, the two women were left standing in front while the two officers answered a police call. No other policemen were on duty at this time. The record indicates that Mrs. Donaldson entered the police station to get some coffee and noticed some shore patrolmen there, but did not speak to them or use the telephone, because "there was no one to call."

When the officers returned, one of them took Mrs. Wells to her home at Mayport in his private automobile. The other police officer, Mosely, and Mrs. Donaldson got into the police car and drove back to the city jail. At no time was the plaintiff booked or issued a citation; nor was she ever taken into the jail. When they arrived at the jail, Mosely said there was no one there, and drove to a point near a railroad track, a short distance away. Mosely stopped the car, "propositioned" Mrs. Donaldson several times, and then assaulted her. According to the plaintiff's testimony, she resisted for approximately forty-five minutes, until Mosely overcame her and succeeded in raping her. The next thing she remembered was driving home. The jury returned a verdict for Mrs. Donaldson, and the City has appealed from the judgment entered on the verdict.

The City specifies as error the failure of the trial court to direct a verdict in its favor at the close of the evidence. After alleging the facts set forth above, the complaint stated that the City, "carelessly and negligently failed to protect the plaintiff and suffered, allowed and permitted the plaintiff to be violently assaulted and debauched * * *." The initial question is whether the evidence, viewed most favorably for the plaintiff, can support the judgment on the theory that the City was negligent. Ross v. Hayes, 5th Cir. 1964, 337 F.2d 691. We hold that it cannot.

Since the decision of the Florida Supreme Court in Hargrove v. Town of Cocoa Beach, Fla.1957, 96 So.2d 130, Florida municipal corporations are liable for injuries resulting from the negligence of their agents under principles of respondeat superior. They are immune from such liability for injuries arising from the exercise of legislative, judicial, quasi-legislative, or quasi-judicial functions, but in all other respects, the liability of a Florida municipality for the negligence of its agents is to be determined upon the same principles that govern private corporations, one of which is the doctrine of proximate cause. Seaboard Air Line Railway Co. v. Mullin, 1915, 70 Fla. 450, 70 So. 467, L.R.A. 1916D, 982.

The principal claim of the plaintiff at the trial was that the City was negligent in failing to provide a matron at the city jail to insure against assault of the kind perpetrated by Officer Mosely. This was the view of the trial court in denying the City's motion for a directed verdict, on the theory that a jury might resonably find that the City was negligent, and that its negligence was the proximate cause of the plaintiff's injury. We think this view overlooks the fact that at no time did plaintiff or Officer Mosely enter the city jail or otherwise make their presence known to anyone who might have been inside. Consequently, the presence or absence of a matron in the jail bore no causal relation to the plaintiff's injury. Causation in fact is an essential element of proximate cause in Florida. Seaboard Air Line Railway Co. v. Mullin, supra; Pope v. Pinker-Hays Lumber Co., 1st D.C.A.Fla. 1960, 120 So.2d 227, cert. den., 127 So.2d 441.

Furthermore, it appears that the Florida courts would hold that the decision whether or not to hire a matron, even if negligently made, would be the exercise of a legislative or quasi-legislative function, for which the municipality is immune from liability. In Raven v. Coates, 3rd D.C.A.Fla.1961, 125 So.2d 770, cert. den., 138 So.2d 339, the plaintiff sought damages from a municipality for injuries allegedly resulting from the failure of the city to place or replace a traffic control device at a particular intersection. In holding the city immune from liability on the ground that this was a legislative or quasi-legislative function, the court said, "the placing of a policeman or a traffic control device at a particular intersection is a matter of judgment by city officers." 125 So.2d 770, 771-772. Similar results have been reached on claims arising from the failure of a city to provide adequate fire-fighting personnel and equipment, Steinhardt v. Town of North Bay Village, 3rd D.C.A.Fla.1961, 132 So.2d 764, cert. discharged, 141 So.2d 737; refusal of a city to grant a building permit, Akin v. City of Miami, Fla.1953, 65 So.2d 54; and the passage by the city of an unconstitutional ordinance, Elrod v. City of Daytona Beach, 1938, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049. The decision of the governing body of a city of 4,233 people,¹ whether to employ additional police personnel is equally a matter of judgment, calling for the exercise of legislative or quasi-legislative discretion, and the city is immune from negligence liability for injuries resulting from that decision.

Because the jury's finding that the City was negligent might have been based upon facts other than its failure to provide a matron, we must determine whether, under any view of the facts, negligence of the City could have been found by the jury to have been the proximate cause of the injury. See Ellingson v. Willis, 1st D.C.A.Fla.1964, 170 So.2d 311. The requirement of proximate cause was well expressed by Justice Sebring in the frequently cited case of Cone v. Inter County Telephone & Telegraph Co., Fla.1949, 40 So.2d 148:

"Not every negligent act of omission or commission gives rise to a cause of action for injuries sustained by another. It is only when injury to a person who himself is without contributing fault has resulted directly and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause, or is such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act, that such injured person is entitled to recover damages as compensation for his loss. Conversely, when the loss is not a direct result of the negligent act complained of, or does not follow in natural ordinary sequence from such act but is merely a possible, as distinguished from a natural and probable, result of the negligence, recovery will not be allowed. Seaboard Air Line Ry. Co. v. Mullin, 70 Fla. 450, 70 So. 467, L.R.A.1916D, 982, Ann.Cas.1918A, 576. `Natural and probable\' consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. `Possible\' consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act." 40 So.2d 148, 149.

The limitation of liability to natural and probable consequences of the negligence calls for a test of objective rather than subjective foreseeability. That is, the appropriate test of foreseeability is whether "the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that `in the field of human experience' the same type of result may be expected again." Pinkerton-Hays Lumber Co. v. Pope, Fla.1961, 127 So.2d 441, 443. See also Schatz v. 7-Eleven, Inc., 1st D.C.A.Fla.1961, 128 So.2d 901. Applying...