Davis v. Baez

• Decision Date: 09 November 2016
• Docket Number: No. 3D16–13.,3D16–13.
• Citation: 208 So.3d 747
• Parties: Londan DAVIS, Appellant, v. Neftali BAEZ, Appellee.
• Court: Florida District Court of Appeals

208 So.3d 747

Londan DAVIS, Appellant,

v.Neftali BAEZ, Appellee.

No. 3D16–13.

District Court of Appeal of Florida, Third District.

Nov. 9, 2016.

Brill Rinaldi Garcia and David W. Brill, Weston; Joel S. Perwin, for appellant.

Walter J. Harvey and John–Philip M. Iafelice ; Haliczer Pettis & Schwamm and Debra P. Klauber and Eugene K. Pettis, Fort Lauderdale, for appellee.

Before SALTER, EMAS and FERNANDEZ, JJ.

EMAS, J.

INTRODUCTION

Londan Davis, the plaintiff below, appeals from the trial court's entry of final summary judgment in favor of Neftali Baez, the defendant below and an employee of the Miami–Dade County School Board. The trial court determined that sovereign immunity barred Davis' claim against Baez for individual negligence, as pleaded in Count II of the operative complaint. We reverse, and hold that the trial court erred in entering summary judgment on Davis' individual negligence claim, as there remain disputed issues of material fact as to whether Baez acted in a manner that would place him beyond the protection of sovereign immunity and render him individually liable to Davis.

FACTS

At all relevant times, Londan Davis was an eighteen-year-old student at Sunset Senior High School in Miami–Dade County. She was struck by a car while crossing from the west side of the street to reach the school bus stop on the east side of the street. At the time of the accident (5:50 a.m.) it was dark outside, and the bus had not yet arrived at the bus stop on the east side of the street. Davis suffered serious injuries and she sued, among others, the Miami–Dade County School Board and Neftali Baez, a school bus driver employed by the School Board.

In her operative complaint, Davis alleged, inter alia, that Baez and the School Board were negligent for failing to instruct Davis and her brother¹ to wait on the west side of the street (the street being Northeast 18th Avenue) until the bus arrived at the designated bus stop, halted traffic, activated its red flashing lights and extended its "STOP" arm, thereby allowing Davis and her brother to safely cross from the west side of the street to east side of the street. The issue on appeal involves only Count II of the complaint, which sets forth a claim of individual negligence against Davis only. Count II alleged, in pertinent part, that:

• Baez, the school bus driver, "on his own initiative, took it upon himself to advise the Davis children that he was going to be picking them up ... on the east side of the road way, necessitating Plaintiff ... to cross NE 18th Avenue."

• Baez failed to instruct Plaintiff and her brother to wait on the west side of the street for the bus to arrive and to cross only after the bus arrived, stopped, and activated its red flashing lights and extended its stop arm.

• Baez required Davis and her brother to cross the street before the bus arrived, even though Baez knew or should have known that it would be dangerous for Davis to do so.

In his discovery deposition, Baez acknowledged that he affirmatively told Davis and her brother that they could not wait on the west side of the street; that he told them they were required to cross the street and be waiting on the east side of the street before the bus arrived; and that if Davis and her brother were not already waiting on the east side of the street when the bus arrived, Baez would not wait for them to cross and would not pick them up.

Ms. Kathryn Beasley is the Bus Route Manager for Miami–Dade County Public Schools, and is in charge of establishing and reviewing bus stops, bus routes, and overseeing bus drivers. She testified in deposition that the Davis children were not only permitted to wait on the west side of the street until the bus arrived, but that the proper procedure is that the Davis children are supposed to wait on the west side of the street until the bus arrived. Only after the bus arrived and stopped, with its red lights flashing and its STOP arm extended, should the Davis children cross to the east side of the street. Ms. Beasley testified that Baez's instructions to Davis and her brother was contrary to School Board policy and contrary to bus driver training.

Ms. Theodosia Davis is a Field Operations Specialist for Miami–Dade County Public Schools, and is a first-level supervisor for bus drivers and for receiving and resolving complaints from parents and school personnel. Ms. Davis agreed with Ms. Beasley that students are permitted to wait on the other side of the street for the bus to arrive and should cross the street to get to the bus stop only after the bus has arrived and activated its lights and STOP arm to permit safe crossing. Ms. Davis testified that she would not tell a student (as Baez did) that they are required to cross the street and be waiting at the stop before the bus arrives; that there is no reason to tell a student this; and that if she became aware of such a practice, she would take the necessary steps to correct it. Ms. Davis testified she could not think of any action that would be more dangerous to the students than telling them that they were required to cross the street before the bus arrived.

During her deposition, Ms. Davis was shown a copy of the Miami–Dade County Public Schools' "Handbook for School Bus Drivers, Aides and Operations Staff" and affirmed that this Handbook provided in part: "Students must cross the road only in front of the bus when traffic has been halted by means of the flashing red lights and stop arm extended." She indicated that this procedure should be followed when students are waiting on one side of the street and the bus arrives on the opposite side of the street.

Another bus driver, Ms. Monica Smith, testified that the students are not supposed to cross the street until the bus arrives and turns on its lights and extends the STOP arm. Ms. Smith testified that she has never instructed students to cross the street before the bus arrives at the stop.

The Prior Appeal of the Order Dismissing the School Board

The School Board moved to dismiss the counts against it and Baez, asserting that both were sovereignly immune from tort liability and that the complaint failed to state a cause of action against the School Board because the School Board did not owe a duty of care to Davis at the time of the injury, nor a duty to warn her of the roadway's dangerousness. The trial court granted the motion to dismiss, but only as to the School Board, and only on the issue of duty. All claims against the School Board (both direct and vicarious) were dismissed with prejudice and Davis appealed that decision to this court. Davis v. City of Homestead, 154 So.3d 443 (Fla. 3d DCA 2014) (Davis I ). The only issue on appeal in Davis I was whether the trial court erred in ruling that the School Board owed no duty to Davis. This court affirmed the trial court's decision per curiam, citing to Francis v. School Board of Palm Beach County, 29 So.3d 441 (Fla. 4th DCA 2010).²

Baez answered Davis' complaint below, asserting several affirmative defenses, including sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes. Thereafter, Baez moved for summary judgment, arguing he was entitled to summary judgment because the appellate court in Davis I had affirmed the trial court's determination that the School Board, and by extension, Baez, owed no duty to Davis, and also argued that he was immune from liability under the sovereign immunity statute because (1) the location of the bus stop was a planning-level decision of the School Board; (2) Baez did not "undertake" a duty to Davis while she was within Baez's physical custody or control; and (3) Baez was acting in the course and scope of his employment and Davis cannot show bad faith, malicious purpose, or willful and wanton disregard.

After a hearing, the trial court granted Baez's motion for summary judgment on both the duty and the sovereign immunity issues, and entered judgment. This appeal followed, and we review de novo the trial court's granting of summary judgment. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). In doing so, we must view the record and reasonable inferences therefrom in a light most favorable to the nonmoving party, and any doubt concerning the existence of a disputed issue of material fact must be resolved against the moving party. Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000) ; Colon v. Outback Steakhouse of Fla., Inc., 721 So.2d 769 (Fla. 3d DCA 1998).

Law of the case

The trial court determined that Davis could not proceed on Count II alleging individual negligence against Baez, under the apparent belief that such a conclusion was compelled by our decision in Davis I. Baez urges us to affirm this determination, contending that our decision in Davis I constitutes law of the case and forecloses Davis' negligence action against Baez individually. While Davis I is indeed law of the case, we do not agree that our decision in that prior appeal forecloses the individual negligence claim against Baez, which is premised upon allegations that Baez acted outside the scope of his employment or acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the safety of Davis. These allegations, if proven, would constitute an exception to the sovereign immunity afforded to employees and agents of the School Board, permitting personal liability against Baez.

Davis I did not involve the question of sovereign immunity; instead the trial court's order (affirmed by us) was based solely on a finding that the School Board owed no duty to Davis. The reason no duty was owed is that, as the Fourth District held in Francis, 29 So.3d at 444, the "school board does not have custody or control over students while they are en route to their bus stops" and thus "the school board does not have any duty to its students during this time."³ Because Davis was not on the bus or within the custody or control of the School Board (or its employees) at the time...