City of North Bay Village v. Braelow

• Decision Date: 14 May 1985
• Docket Number: No. 84-201,84-201
• Citation: 469 So.2d 869,10 Fla. L. Weekly 1198
• Parties: 10 Fla. L. Weekly 1198 CITY OF NORTH BAY VILLAGE and Officer J. Ort, Appellants, v. Bart David BRAELOW, Appellee.
• Court: Florida District Court of Appeals

Page 869

469 So.2d 869

10 Fla. L. Weekly 1198

CITY OF NORTH BAY VILLAGE and Officer J. Ort, Appellants, v. Bart David BRAELOW, Appellee.

No. 84-201.

District Court of Appeal of Florida,

Third District.

May 14, 1985.

Rehearing Denied June 17, 1985.

Lee Weissenborn, Miami, for appellants.

Friedman & Miller and Robert B. Miller, North Miami Beach, for appellee.

Before HENDRY, NESBITT and FERGUSON, JJ.

HENDRY, Judge.

The appellants, the City of North Bay Village and Officer J. Ort, contest the adverse final judgment and order denying their motion for new trial and/or for entry of a remittitur. We affirm.

The plaintiff, Bart David Braelow, was unnecessarily injured by Officer Ort while the officer was acting within the course and scope of his employment. Braelow brought an action against Officer Ort individually for the alleged battery and against the city for its alleged negligence in failing to relieve the officer of his duties when it knew or should have known of his propensity for violence.

The actions were consolidated and proceeded to trial. The jury returned a verdict in favor of Braelow for $100,000. Thereafter, the city filed a motion to conform the judgment to the requirements of section 768.28, Florida Statutes (1979), and a motion for new trial and/or remittitur. The motion for remittitur contended that section 768.28(9), Florida Statutes (1979), prohibited the entry of a judgment against Ort and prohibited the entry of a judgment against the city in excess of $50,000. The motion for new trial asserted that the court committed reversible error in refusing to read the city's special jury instructions which consisted of the criminal statutes under which Braelow had originally been charged and, further, that the verdict was so excessive that it should shock the conscience of the court and was induced by prejudice, anger or sympathy on the part of the jury. After two hearings, the trial court denied the motion for new trial and denied the remittitur. In its order the court acknowledged that the law in effect at the time the cause of action arose limited recovery from the city to the amount of $50,000 and noted that there was no limitation upon the recovery by Braelow against the officer. The court amended the final judgment accordingly.

In this appeal the city raises the identical three points asserted below, i.e., that section 768.28(9), Florida Statutes (1979) bars recovery against the officer, that it was reversible error to exclude from the jury instructions the three criminal statutes, and that the verdict was excessive.

Initially, we note that the date of the incident controls the determination of which of the several different versions of section 768.28(9) applies. Stillwell v. Thigpen, 426 So.2d 1267 (Fla. 1st DCA 1983); Kirkland v. State, Department of Health & Rehabilitative Services, 424 So.2d 925 (Fla. 1st DCA 1983); Galbreath v. Shortle, 416 So.2d 37 (Fla. 4th DCA 1982). As the incident complained of occurred on November 29, 1979, the applicable statute is section 768.28(9), Florida Statutes (1979), which provides:

(9) No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for a final judgment which has been rendered against him for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

The question we must decide is whether this governmental employee, Officer Ort, can be held personally liable for his negligent conduct occurring in the course of his duties under the 1979 statute. Since section 768.28 was amended in 1980 to relieve governmental employees from personal liability for their negligent acts and to limit the remedy for injuries suffered as a result of the employees' negligent conduct to an action only against the governmental agency, Ch. 80-271, Laws of Fla., effective June 30, 1980; § 768.28(9), Fla.Stat. (Supp.1980), this is a very narrow question. We are guided in our decision by the Florida Supreme Court's opinion in Rupp v. Bryant, 417 So.2d 658 (Fla.1982) (Overton, J., spec. concurring). In Rupp v. Bryant the Court made clear that actions commenced prior to the 1980 amendment could be maintained against a state employee for his ordinary negligence in carrying out ministerial (though not discretionary) duties in the course of his employment. Rupp v. Bryant, 417 So.2d at 662, 663. See also Everton v. Willard, 468 So.2d 936, 940 (Fla.1985) (Shaw, J., dissenting). The standard for determining a public servant's liability is predicated on the type of act the employee had undertaken when the injury occurred. Reddish v. Smith, 468 So.2d 929, 934 (Fla.1985). Applying the criteria set forth in these cases, we hold that Braelow has met the necessary requirements.

First, Braelow has shown a special and direct interest in the officer's performance of his duty in that the serious personal...