Evett v. City of Inverness

• Decision Date: 02 July 1969
• Docket Number: No. 68--442,68--442
• Citation: 224 So.2d 365
• Parties: Ida Lee EVETT, Appellant, v. CITY OF INVERNESS, a municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 365

224 So.2d 365

Ida Lee EVETT, Appellant, v. CITY OF INVERNESS, a municipal corporation, Appellee.

No. 68--442.

District Court of Appeal of Florida, Second District.

July 2, 1969.

Ray Graham, Sarasota, for appellant.

Lucius M. Dyal, Jr., Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.

HOBSON, Chief Judge.

Plaintiff-appellant, a widow, appeals a final order granting a motion to dismiss her complaint as against the City of Inverness, appellee herein, for the wrongful death of her husband which was alleged to have been caused by the negligence of a police officer of the City of Inverness.

The plaintiff's complaint alleged the following:

The plaintiff's husband was killed when an automobile operated by him on U.S. Highway 41 was struck on its own side of the road by an automobile negligently operated by an intoxicated driver.

A short time prior to the collision, a police officer of the City of Inverness stopped this intoxicated driver for speeding on U.S. Highway 41 within the municipal limits of the City of Inverness. At that time, the officer knew or should have known that the operator was intoxicated to the extent that his normal faculties were impaired and that his continued operation of the vehicle would injure persons or property upon the public highways. Notwithstanding this the police officer negligently permitted him to continue driving upon the public highways.

The question which is determinative of this appeal is whether the City's police officer owed any duty to the plaintiff's deceased husband, as an individual, which would support a cause of action in which the City may be found liable under the doctrine of respondeat superior.

The answer to the above question is found in the decision of the Supreme Court of Florida in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), wherein the court speaking through Mr. Justice O'Connell stated at page 75:

'It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. 23 Fla.Jur., 'Negligence,' Sec. 10. However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally. Mechem, Public Offices and Officers (1890), Secs. 598, 672, 673, and 674; 43 Am.Jur., 'Public Officers,' Secs. 272 and 279; 27 Fla.Jur., 'Public Officers,' Sec. 120; 67 C.J.S. Officers § 127(b); First National Bank of Key West v. Filer, 1933, 107 Fla. 526, 145 So. 204, 87 A.L.R. 267; Larson v. Marsh, 1944, 144 Neb. 644, 14 N.W.2d 189, 153 A.L.R. 101, Mechem states the rules as follows:

"Sec. 598. * * * public officers, in respect of the person or persons to whom their duty is owing, are divided into two classes,--those whose duty is owing solely to the public, and those whose duty is owing in some degree to individuals. The first question for determination, therefore, in considering the liability of a public officer to private action is whether that officer owes any duty to the individual complaining. If he does not, then the individual has no right of action, even though he may have been injured by the action or non-action of the officer. * * *"

"Sec. 674. * * * It is largely a restatement of the same rule...