Department of Health & Rehabilitative Services v. Whaley

• Decision Date: 10 January 1991
• Docket Number: No. 73344,73344
• Citation: 16 Fla. L. Weekly 75,574 So.2d 100
• Court: Florida Supreme Court
• Parties: 16 Fla. L. Weekly 75 DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Petitioner, v. David WHALEY, etc., Respondent.

Page 100

574 So.2d 100

16 Fla. L. Weekly 75

DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Petitioner, v. David WHALEY, etc., Respondent.

No. 73344.

Supreme Court of Florida.

Jan. 10, 1991.

Rehearing Denied Feb. 20, 1991.

Michael B. Davis of Davis, Hoy & Diamond, P.A., West Palm Beach, for petitioner.

Richard A. Kupfer of Wagner, Nugent, Johnson, Roth, Romano, Eriksen and Kupfer, P.A., and Babbitt and Hazouri, P.A., West Palm Beach, for respondent.

McDONALD, Justice.

In State Department of Health & Rehabilitative Services v. Whaley, 531 So.2d 723, 730 (Fla. 4th DCA 1988), the district court affirmed a judgment holding the Department of Health and Rehabilitative Services (HRS) liable for negligently assigning alleged juvenile delinquents to a holding cell and certified the following question as being of great public importance:

IS THE ASSIGNMENT OR PLACEMENT OF ALLEGED JUVENILE DELINQUENTS IN A PARTICULAR ROOM OR LOCATION IN AN HRS DETENTION FACILITY AN INHERENTLY GOVERNMENTAL FUNCTION (ENFORCEMENT OF LAWS AND PUBLIC SAFETY PROTECTION) OR A DISCRETIONARY GOVERNMENTAL FUNCTION, WHICH IS PROTECTED BY SOVEREIGN IMMUNITY?

We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We hold that the assignment of juveniles to a particular room or location in an HRS detention facility is an operational function not protected by sovereign immunity and approve the district court's decision.

On March 15, 1982 police arrested Michael Whaley, a fourteen-year-old white youth, and two companions, John Ahrens and Thomas Parker, for burglary and took them to a juvenile detention center run by HRS around 6:00 p.m. Because the acts charged would have been felonies if committed by adults, the intake counselor had to obtain authorization for detention from the state attorney's office. The counselor received that authorization at 7:30 p.m. and contacted the boys' parents, reaching Ahrens' parents at 7:20 p.m., Whaley's stepmother at 7:50 p.m., and Parker's parents at 8:15 p.m. The intake counselor then notified the center's master control that the three youths were ready for admission and orientation, and master control processed Ahrens and Parker into the detention center. Whaley, however, remained in the intake unit, even though the intake counselor reminded master control several times that he could be moved to the detention center. Whaley stayed alone in holding cell number two, while the counselor placed two other youths, a thirteen-year-old with no violent background charged with burglary and a sixteen-year-old dependent, who was not charged with a crime, in the other holding cell, number one. The doors of these cells remained open, general practice in the intake unit so that the counselor could hear any noise from the cells located fifteen to twenty feet away from the counselor's office.

At approximately 11:00 p.m. Glenn Moore, a fifteen-year-old black youth, arrived at the intake unit. Documents accompanying Moore indicated that he had a prior criminal history involving assault. The counselor placed Moore, about six feet, two inches tall and about 160 pounds, in cell number two with Whaley. Whaley, five feet, four inches tall and 98 pounds, was asleep on the bench in the cell at that time.

At 11:20 p.m. Willie Jones, a sixteen-year-old black youth, came into the intake unit, having been arrested for armed robbery. Jones' interim placement report indicated that he previously had been charged with several violent crimes, most of which had been nolle prossed and none of which involved sexual assault. The counselor assigned Jones, six feet, two inches tall and 195 pounds, to cell number two with Moore and Whaley.

Shortly after 11:30 p.m., the night intake counselor arrived, was advised of the status of the youths in the unit, and checked on them while the intake counselor who had assigned the boys to their cells prepared to leave. The night counselor also called master control with a reminder that the youths were ready for processing. The counselor checked on the youths at midnight, but at 12:20 a.m. he heard a sound from the cells and went to investigate. Noticing that the door to cell number two was nearly closed, he opened the door and saw Whaley on his knees in front of Moore with Jones standing to the side; Moore had his hands around Whaley's neck, and Moore's pants were unzipped. When the counselor entered the room, the boys moved apart, and the counselor removed Whaley from the room and asked him if he had been hurt. According to the counselor, Whaley indicated that he was not hurt, but that he had been threatened. The counselor also testified that Whaley's face and neck were flushed but that he otherwise appeared unharmed.

The counselor kept the boys separated and again called master control, reporting that a situation had occurred and that the boys had to be moved immediately. Master control processed Whaley into the detention center shortly thereafter. HRS investigated the incident and ultimately concluded that Whaley had been the victim of a sexual assault.

Several months after the incident, Whaley began seeing a psychiatrist concerning his nightmares and his fear of blacks in groups. Whaley's psychiatrist and a psychologist testified that Whaley suffered from post-traumatic stress syndrome due to the incident at the detention center and from an adolescent conduct disorder which pre-existed the incident.

Whaley's initial complaint asserted a civil rights claim under 42 U.S.C. 1983 and several common law tort claims. The trial court struck the 1983 claims, and Whaley went to trial on the tort claims, arguing that sovereign immunity had been waived by section 768.28, Florida Statutes (1981). The jury returned a special verdict finding that: (1) HRS was negligent in placing Jones and Moore in the same holding cell as Whaley; (2) HRS was negligent in allowing Whaley to remain in a holding cell for an extended period of time; (3) HRS was not negligent in its supervision of the holding cells; and (4) HRS was negligent in failing to provide Whaley with immediate medical and psychiatric care. The jury awarded damages to Michael Whaley in the amount of $100,000 and to his father, David Whaley, in the amount of $10,000, of which the trial court ordered a remittitur of $4,415.

On appeal the district court found that HRS has a duty while detaining a juvenile to protect him from potential harm by third persons and that "it was proper to let the jury decide whether HRS was liable for assigning Whaley and the other boys to the same holding cell and for delay in processing Whaley into the dormitory section of the facility, given the actual or constructive knowledge of Jones's proclivity toward violence." 531 So.2d at 730. It concluded that sovereign immunity did not shield HRS from liability under the circumstances of this case. After so holding, the district court recognized that the primary issue in this case is whether HRS owes a common law duty of care in assigning to places of detainment juveniles charged with or convicted of criminal offenses and certified its question to us.

HRS argues that the holding cell assignments in this case constituted discretionary acts for which sovereign immunity has not been waived under the tests set out in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), and Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985). ¹ We considered a similar argument regarding so-called discretionary acts in Department of Health & Rehabilitative Services v. Yamuni, 529 So.2d 258, 260 (Fla.1988), and stated:

HRS nevertheless argues that the caseworkers were exercising discretion in handling the reported child abuse and that their actions were planning level activity under Commercial Carrier. This argument is grounded on the definitional approach to "discretion" which we ... rejected because "all governmental functions, no matter how seemingly ministerial, can be characterized as embracing the exercise of some discretion in the manner of their performance." [Commercial Carrier,] 371 So.2d at 1021. We have no doubt that the HRS caseworkers exercised discretion in the dictionary or English sense of the word, but discretion in the Commercial Carrier sense refers to discretion at the policy-making or planning level. We agree with the district court that the actions of caseworkers investigating and responding to reports of child abuse simply cannot be elevated to the level of policy-making or planning.

Operational level acts, therefore, are not necessary to or inherent in policy or planning, but, rather, reflect only secondary decisions for implementing discretionary plans and policies. Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). We went on in Yamuni to hold that the caseworker activities at issue constituted operational level acts for which immunity had been waived. 529 So.2d at 260. Similarly, the instant intake counselors' actions were operational level acts implementing HRS' discretionary policies.

A governmental employee's negligence that proximately causes injury to another entitles the injured party to redress. Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). Deciding whether to take someone into custody is a discretionary act for which sovereign immunity has not been waived. Everton v. Willard, 468 So.2d 936 (Fla.1985). A person taken into custody, however, "is owed a common law duty of care." Kaisner, 543 So.2d at 734. Numerous cases have recognized that this duty of exercising reasonable care exists and that it is an operational level function. E.g., Kaisner; Dunagan v. Seely, 533 So.2d 867 (Fla. 1st DCA 1988); Sanders v. City of Belle Glade, 510 So.2d 962 (Fla. 4th DCA 1987); Spann v. State, Department of Corrections, 421 So.2d 1090 (Fla. 4th DCA 1982), review denied, 430 So.2d 452 (Fla.1983); White v. Palm Beach County, 404 So.2d 123 (Fla. 4th DCA 1981). Accord Restatement (Second) of Torts § 320 (19...