Everton v. Willard, s. 81-2081

• Decision Date: 05 January 1983
• Docket Number: 81-2085,Nos. 81-2081,s. 81-2081
• Citation: 426 So.2d 996
• Parties: Azor J. EVERTON, Jr., Appellant, v. Marion WILLARD, individually and d/b/a Willard's Painting Company, Pinellas County Sheriff's Department and Pinellas County, Appellees. Anton TRINKO, Personal Representative of the Estate of Renee Trinko, deceased, for the use and benefit of Anton Trinko and Phyllis Trinko, Appellant, v. Marion R. WILLARD, individually and d/b/a Willard Painting, State Automobile Mutual Insurance Company, Deputy C.W. Parker, Pinellas County Sheriff's Department and Pinellas County, Appellees.
• Court: Florida District Court of Appeals

Page 996

426 So.2d 996

Azor J. EVERTON, Jr., Appellant, v. Marion WILLARD, individually and d/b/a Willard's Painting Company, Pinellas County Sheriff's Department and Pinellas County, Appellees.

Anton TRINKO, Personal Representative of the Estate of Renee Trinko, deceased, for the use and benefit of Anton Trinko and Phyllis Trinko, Appellant, v. Marion R. WILLARD, individually and d/b/a Willard Painting, State Automobile Mutual Insurance Company, Deputy C.W. Parker, Pinellas County Sheriff's Department and Pinellas County, Appellees.

Nos. 81-2081, 81-2085.

District Court of Appeal of Florida,

Second District.

Jan. 5, 1983.

Rehearing Denied Feb. 21, 1983.

Rick A. Mattson of Mattson & McGrady, P.A., St. Petersburg, for appellant, Everton.

Joel P. Yanchuck and David Young of Yanchuck, Thompson & Young, P.A., St. Petersburg, for appellant, Trinko.

James B. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees, Deputy Parker and Pinellas County Sheriff's Dept.

CAMPBELL, Judge.

This is an appeal from the dismissal of the counts of appellants' complaints that sought damages in tort from C.W. Parker, a Pinellas County sheriff's deputy, the Pinellas County Sheriff's Department, and Pinellas County. The separate complaints were consolidated below and remain so on appeal.

The consolidated complaints present us with the issue of the scope of the sovereign immunity of those agencies for the actions of a deputy sheriff acting within the scope of his employment in exercising his discretion of whether or not to take an individual into custody. This issue is created by the application and interpretation of section 768.28, Florida Statutes (1979), and Commercial Carrier Corp. v. Indian River County 371 So.2d 1010 (Fla.1979), and its progeny.

The facts as they must be accepted for purposes of appellees' motions to dismiss are that Azor Everton was seriously injured and Anton Trinko's daughter Renee was killed in a two car collision at an intersection in Pinellas County in the early morning hours of June 22, 1979. Renee Trinko was the driver and Everton was a passenger in one of the vehicles, while Marion Willard drove the second vehicle. Approximately ten to twenty minutes before the accident, Pinellas County Sheriff's Deputy C.W. Parker stopped Willard and issued him a traffic citation or summons for making an improper U-turn at another intersection. While issuing the citation to Willard, Deputy Parker knew, by his own observations and by Willard's own admissions, that Willard had been drinking to some extent. However, Deputy Parker did not charge Willard with a driving offense related to intoxication but instead, having issued the citation and having observed him while doing so, Parker allowed Willard to drive away. Appellants allege that by allowing Mr. Willard to proceed without detaining or arresting him for intoxication, Deputy Parker violated a duty owed to them in particular and to the public in general. They further allege that this violation resulted in the subsequent collision causing the death of Renee Trinko and the injuries to Azor Everton.

The trial court granted appellees' motions to dismiss, explaining:

The motion to dismiss was granted because the law enforcement officer must be allowed the freedom to exercise his discretion, a discretion to enforce which lies at the very heart of the policy of law enforcement, without being subject to suit in tort if his decision in retrospect results in misfortune to innocent third parties.

We first observe that only Trinko's complaint seeks to hold Deputy Parker liable in tort for actions allegedly committed within the scope of his employment as a deputy sheriff. Section 768.28(9)(a), Florida Statutes (1979), protects such an officer from being personally liable or from being named as a party defendant unless the officer acted in bad faith, with malicious intent, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Appellant Trinko's complaint contains no such allegations regarding Deputy Parker and those counts of the complaint seeking damages from him should have been dismissed pursuant to section 768.28(9)(a).

If it were not for the subsequent enactment of section 768.28, Florida Statutes (1973), and the resulting decision in Commercial Carrier, we could simply affirm on the basis of Evett v. City of Inverness, 224 So.2d 365 (Fla. 2d DCA 1969), for the factual situations are amazingly similar. This court there found the City of Inverness not liable for the actions of its police officer on the "general duty"--"special duty" doctrine of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), because Modlin required a "special duty" to the injured party. This required the Evett court to affirm the dismissal of the complaint against the City of Inverness because any duty of the city's police officer was owed to the public in general and not specifically to the plaintiff in that case. However, in Commercial Carrier our supreme court has held that the subsequent enactment of section 768.28 abolished the Modlin "general duty"--"special duty" doctrine as it affects governmental immunity. Appellees argue, nevertheless, that even absent the Modlin doctrine they are immune from a tort action under the facts alleged by appellants because Deputy Parker's actions came within the discretionary function exception set forth in the four-pronged test of Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), as adopted by our supreme court in Commercial Carrier. The problem with appellees' position is that while adopting the discretionary function test of Evangelical, our supreme court also adopted the "planning" versus "operational" test of Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). Clearly, whether discretionary or not, Deputy Parker's acts were in the operational field of law enforcement for Pinellas County.

The Evangelical test adopted in Commercial Carrier is as follows:

Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.

371 So.2d at 1019, citing 407 P.2d at 445. The Johnson test also adopted in Commercial Carrier is as follows:

We recognize that this interpretation of the term "discretionary" presents some difficulties. For example, problems arise in attempting to translate this concern for the court's role in the governmental structure into an applicable touchstone for decision. Our proposed distinction, sometimes described as that between the "planning" and "operational" levels of decisionmaking (cf. Dalehite v. United States, supra, 346 U.S. 15, 35-36, 73 S.Ct. 956, [967-68, 97 L.Ed. 1427] ), however, offers some basic guideposts, although it certainly presents no panacea. Admittedly, our interpretation will necessitate delicate decisions; the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court's ability to reexamine it. Despite these potential drawbacks, however, our approach possesses the dispositive virtue of concentrating on the reasons for granting immunity to the governmental entity. It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.

371 So.2d at 1021, citing 73 Cal.Rptr. at 248-49, 447 P.2d at 360-61 (footnote omitted).

Before specifically analyzing the facts here in relation to those tests, we will reflect briefly on the history of the sovereign immunity problem that paradoxically seems to become more tangled each time the courts attempt to untangle it. Perhaps it is time, even past time, for the issue to be definitively and specifically addressed by the legislature so that the state, its agencies and subdivisions, can, with some degree of certainty, know the extent of their liability and guard against it. It is evident that they cannot now be certain when the courts themselves obviously continue to be uncertain as to the present extent of sovereign immunity, especially as each case and each factual situation seems to produce a new "test." It does not to us seem fair to drift toward the practice of allowing more and more cases to proceed to a jury determination on the question of...