Ellmer v. City of St. Petersburg, 79-448
| Decision Date | 12 December 1979 |
| Docket Number | No. 79-448,79-448 |
| Citation | 378 So.2d 825 |
| Parties | Joseph ELLMER, Appellant, v. The CITY OF ST. PETERSBURG, a Municipal Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Jay M. Thorpe, St. Petersburg, for appellant.
Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee.
This is an appeal from an order dismissing the plaintiff's complaint for damages against the City of St. Petersburg for failure to warn him of a riot.
According to the complaint, at 10:00 p. m. on August 20, 1978, riot conditions existed in certain localities of the city including the intersection of 16th Street South and 18th Avenue South. Unaware of the existence of the riot, the plaintiff drove through the intersection where he was stopped, attacked and robbed by a group of rioters. The complaint further asserted that despite having known of the dangerous condition for an hour and a half, the city failed in its duty to protect the safety of its citizens travelling upon the city streets by giving them appropriate warning or cordoning off the locale.
The court below predicated its ruling primarily upon the case of Wong v. City of Miami, 237 So.2d 132 (Fla.1970). That case resulted from riots which occurred in Miami while the 1968 Republican National Convention was taking place on Miami Beach. Merchants bordering an area in which a civil rights rally had been scheduled requested increased police protection against possible damages that might occur as a result of the assembly. The city at first stationed numerous police officers in the vicinity but later in the evening the mayor ordered them removed. Thereafter, some of the participants in the rally created a riot and caused substantial damage to the neighboring stores.
The merchants sued the city for damages. The trial court dismissed the complaint for failure to state a cause of action, and the district court of appeal affirmed but certified the case to the supreme court. The supreme court discharged certiorari thereby leaving intact the decision of the district court of appeal. In the course of its opinion, the supreme court said:
We agree with respondents' arguments and with the decision announced by the District Court majority. But we are somewhat disturbed with what we perceived to be inferences appearing in the majority opinion and in the brief of the County that the removal of the officers Was a negligent act and that respondents are shielded from liability merely because sovereign immunity has not been relaxed sufficiently by prior decisions. . . .
While sovereign immunity is a salient issue here, we ought not lose sight of the fact that inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers. . . . The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence. Here officials thought it best to withdraw their officers. Who can say whether or not the damage sustained by petitioners would have been more widespread if the officers had stayed, and because of a resulting confrontation, the situation had escalated with greater violence than could have been controlled with the resources immediately at hand? If that had been the case, couldn't petitioners allege just as well that That course of action was negligent?
The supreme court recently reaffirmed Wong's emphasis on governmental discretion in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). This case involved the extent to which Section 768.28, Florida Statutes (1975), did away with sovereign immunity. The court concluded that despite the absence of an express exception in the statute, certain policy making, planning, or judgmental governmental functions could not be the subject of traditional...
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Lewis v. City of St. Petersburg, 8:00-CV-00128-T-17A.
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