District School Bd. of Lake County v. Talmadge
| Decision Date | 14 February 1980 |
| Docket Number | No. 53716,53716 |
| Citation | 381 So.2d 698 |
| Parties | DISTRICT SCHOOL BOARD OF LAKE COUNTY, Sonny Walters, and Auto Owners Insurance Company, Petitioners, v. Robert TALMADGE, by his next friend and natural guardian, Billy Talmadge, andBilly Talmadge, Individually, Respondents. |
| Court | Florida Supreme Court |
Monroe E. McDonald, of Sanders, McEwan, Mims & McDonald, Orlando, for petitioners.
David M. Hammond, of Meyers, Mooney & Adler, Orlando, for respondents.
Michael P. McMahon, of Akerman, Senterfitt & Eidson, Orlando, and Jim Smith, Atty. Gen., and Horace Schow II, Asst. Atty. Gen., Tallahassee, for Jerome L. Barber, amicus curiae.
Stuart Simon, Dade County Atty., and Mark A. Dresnick, Asst. County Atty., Miami, for Dade County, Florida, amicus curiae.
Mel R. Martinez, of Billings, Frederick, Wooten & Honeywell, Orlando, for Bane Cheek and Fred Cheek, amicus curiae.
Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
George Stelljes, Jr., President for Florida Defense Lawyers Association, Jacksonville, amicus curiae.
We here interpret one aspect of the state's waiver of sovereign immunity statute, against a background of conflicting district court decisions. Donner v. Hetherington, 370 So.2d 1225 (Fla. 3d DCA 1979); Talmadge v. District School Board, 355 So.2d 502 (Fla. 2d DCA 1978); Paul v. Heritage Insurance Co. of America, 363 So.2d 563 (Fla. 3d DCA 1978); Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977); Pennington v. Serig, 353 So.2d 107 (Fla. 3d DCA 1977). The issue presented is whether under subsection 768.28(9), Florida Statutes (1975), a state employee may be made a party defendant in an action for personal injuries allegedly occasioned by the employee's negligence while acting in the scope of his employment.
Robert Talmadge was a student at Tavares Middle School, a public school operated by the District School Board of Lake County, Florida. Talmadge brought suit against the Board, its insurance company, and Sonny Walters, a physical education instructor at the school, seeking damages for injuries he received while performing on a trampoline. The complaint alleged that during a physical education class, Walters ordered Talmadge to perform certain acrobatics on the trampoline. When Talmadge refused, Walters physically picked him up, placed him on the trampoline, and twice more ordered him to perform. It is alleged that Talmadge then attempted a flip, during which he injured his knee and teeth. Talmadge allegedly had minimal instruction regarding acrobatics and safety on the trampoline, and was not prepared to perform such activities safely.
Walters filed a motion to dismiss himself as a defendant, contending that subsection 768.28(9) immunized him from suit. The trial court granted the motion. On appeal, the second district court of appeal reversed, holding that the statute "acts only to indemnify an employee of the state for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment, but does not operate as a bar against suing such an employee as a party defendant." 355 So.2d at 503. Walters and the other petitioners now challenge the district court's ruling on that point.
Article X, section 13 of the Florida Constitution states that "(p)rovision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating." Pursuant to this authorization, the legislature enacted section 768.28, waiving the state's sovereign immunity in tort actions within certain express limitations. Prior to the enactment of the waiver statute, of course, Florida's public employees had been liable for their tortious acts. See, e. g., Davis v. Watson, 318 So.2d 169 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976). Consequently, section 768.28 led to the coexistence of both governmental and employee liability, creating what has been termed a new "problem of coordination." 1 Subsection 768.28(9) is the legislature's attempt to treat this problem, since it addresses the effect which the introduction of governmental liability has on the liability or immunity 2 of the individual state employee.
Unfortunately, the language of subsection 768.28(9) appears on its face to be inconsistent. The first sentence reads:
(9) No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort 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. (emphasis added).
The second sentence, which the legislature added one year after the first, 3 provides:
Subject to the monetary limitations set forth in subsection (5), the state shall pay any monetary judgment which is rendered in a civil action personally against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function. (emphasis added).
Facially at least, the first sentence seemingly declares that public employees are not personally liable for employment negligence, while the second sentence seemingly provides that the state will pay (up to a stated amount) after personal liability has been determined. 4
Petitioners attempt to reconcile the apparent inconsistency, contending that the two sentences of subsection (9) deal with two distinct situations. They argue that the first sentence makes public employees immune from suit, except in those instances where they act in bad faith, with a malicious purpose, or in a manner exhibiting wanton or willful disregard of human rights, safety or property. Only in these latter situations, they suggest, is the second sentence triggered, thus permitting the employee to be sued and obligating the state to indemnify him from any judgment. 5 This reading of the statute apparently was adopted both in Metropolitan Dade County, where the court held that a Dade County bus driver's motion to dismiss should have been granted because the claim against him individually did not allege that he had acted in bad faith, 6 and in Pennington, where the court held that "(i)n the absence of any allegation or proof of bad faith or malicious purpose on their part, defendants are immune from personal liability under Section 768.28(9), Florida Statutes (1975)." 7
Respondents, on the other hand, ask us to adopt an interpretation of subsection (9) to the effect that the provision acts only to indemnify public employees for monetary judgments entered against them, but does not render them immune from suit. They argue that it would be impossible for judgments to be rendered personally against public employees, in accordance with the second sentence, if the first sentence immunized those employees from suit. Moreover, the legislature would have declared unequivocally if it intended that public employees be given immunity from suit. This rationale is supported by the Talmadge decision below and by the Paul and Donner cases. 8
Neither the parties nor amici 9 have brought to our attention any statutory or case authority in this state which reconciles the conflicting provisions of subsection 768.28(9). A survey of comparable statutes in other jurisdiction provides limited assistance in this regard, but is relevant for the contrasts it provides.
We have, on occasion, looked to the Federal Tort Claims Act and its applicable precedents for guidance in the area of sovereign immunity, 10 but the federal act contains no provision comparable to subsection (9). 11 That portion of the act which immunizes federal employees from liability for the negligent operation of motor vehicles while acting within the scope of their employment is not sufficiently similar to warrant any conclusion regarding the operation of subsection (9). 12
An analysis of legislation in other jurisdictions is likewise nonconclusive, 13 as none contains a provision quite like subsection (9). Most state statutes are more specific regarding the proper relationship between governmental and employee tort liability.
For example, Connecticut's sovereign immunity statute has a provision very similar to the seemingly immunizing first sentence of subsection (9). It provides that "(n)o state officer or employee shall be personally liable for damage or injury, not wanton or wilful, caused in the performance of his duties and within the scope of his employment." 14 It then provides, however, that "(a)ny person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." Thus, the Connecticut statute is internally consistent by first providing state employees with immunity from liability and then explicitly directing that tort claims are to be filed against the state. 15 Subsection (9), of course, does not specify whether claims should be filed against the state, the employee, or both.
Tennessee takes a slightly different approach. It allows its public employees to be sued but only when the action may aid in compensating the plaintiff. It limits tort actions against government employees to those cases where the damages sought, or judgment entered, exceeds minimum statutory limits of insurance coverage or the actual amount of such coverage, whichever is greater. In those cases, the governmental entity must be made a party defendant to the action. 16
Statutes limiting or preventing suits against public employees under some circumstances can be found in other states, 17 but virtually every American jurisdiction permits tort suits against both the government and its employees. 18 This incidence is relevant to our interpretation of section...
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