Gualtieri v. Pownall, 2D20-3315

CourtCourt of Appeal of Florida (US)
Writing for the CourtSTARGEL, JUDGE.
PartiesBOB GUALTIERI, Sheriff of Pinellas County, Appellant, v. RONALD J. POWNALL and G4S SECURE SOLUTIONS (USA) INC., Appellees.
Docket Number2D20-3315
Decision Date30 March 2022

BOB GUALTIERI, Sheriff of Pinellas County, Appellant,


No. 2D20-3315

Florida Court of Appeals, Second District

March 30, 2022

Appeal pursuant to Fla. R. App. P. 9.130 from the Sixth Judicial Circuit Court for Pinellas County; Amy Williams, Judge.

Anne F. McDonough, Senior Associate Counsel of Pinellas County Sheriff's Office, Largo, for Appellant.

Kristen Collins Ware, Marc Matthews, and Sean T. Becker, of McIntyre Thanasides Bringgold Elliot Grimaldi Guito & Matthews, PA, Tampa, for Appellee Ronald J. Pownall.

No appearance for Appellee G4S Secure Solutions (USA) Inc.



Bob Gualtieri, in his official capacity as Sheriff of Pinellas County (the Sheriff), appeals from a nonfinal order denying his motion to dismiss in this negligence action brought by Ronald J. Pownall. Because we conclude that Pownall's negligence claim against the Sheriff is barred by the doctrine of sovereign immunity, we reverse.


On November 30, 2016, Pownall was detained, placed in arrest restraints, and placed in the rear compartment of a prisoner transport van (the vehicle). The vehicle, which was owned and maintained by the Sheriff, was not equipped with seatbelts or other restraining devices for riders in the rear compartment. On the date of the incident, the vehicle was operated by an employee of G4S Secure Solutions (USA) Inc., an independent contractor. During transport, Pownall alleges that he was injured when the driver slammed on the brakes, causing him to be thrown from his seat and strike his body against the metal interior of the rear compartment.


The operative complaint includes claims for negligence against G4S (count one) and the Sheriff (count two).[1] Count two alleges that the Sheriff negligently removed all restraining devices and safety belts from the rear compartment and, in doing so, breached a duty to safely transport Pownall in the vehicle. The Sheriff moved to dismiss, arguing, among other things, that count two failed to state a claim for relief and was barred by sovereign immunity. After a hearing, the trial court denied the Sheriff's motion, finding that "based on the allegations that . . . [the] Pinellas County Sheriff is the owner of the vehicle, and that the seat belts had been removed, and that there is a negligence claim here, on that basis, the Court will deny the motion to dismiss."[2]



The Sheriff argues that the trial court's ruling was erroneous insofar as it rejected his claim that count two was barred by sovereign immunity. Our standard of review for this issue is de novo. See Lee Mem'l Health Sys. v. Hilderbrand, 304 So.3d 58, 60 (Fla. 2d DCA 2020). And because this issue was decided on a motion to dismiss, we must take the facts as set forth in the operative complaint as true. See Clerk of Cir. Ct. & Comptroller of Collier Cnty. v. Doe, 292 So.3d 1254, 1255-56 (Fla. 2d DCA 2020).

"The State of Florida has waived sovereign immunity from liability in tort actions 'for any act for which a private person under similar circumstances would be held liable.'" Pollock v. Fla. Dep't of Highway Patrol, 882 So.2d 928, 932 (Fla. 2004) (quoting Henderson v. Bowden, 737 So.2d 532, 534-35 (Fla. 1999)); see also


§ 768.28(1), Fla. Stat. (2016). "[T]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." Henderson, 737 So.2d at 535. Thus, in order to determine whether count two is barred by sovereign immunity, we must first determine whether the Sheriff owed Pownall a duty of care.

"If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached." Pollock, 882 So.2d at 932; see also Kaisner v. Kolb, 543 So.2d 732, 734 (Fla. 1989) ("[C]onceptually, the question of the applicability of [sovereign] immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." (quoting Williams v. State, 664 P.2d 137, 139 (Cal. 1983))). However, if a duty of care is owed, we must then determine whether sovereign immunity bars an action for a breach of that duty. Pollock, 882 So.2d at 933.


A. Duty

The Florida Supreme Court has recognized that a special tort duty arises "when law enforcement officers become directly involved in circumstances which place people within a 'zone of risk' by creating or permitting dangers to exist, by taking persons into police custody, detaining them, or otherwise subjecting them to danger." Pollock, 882 So.2d at 935. In accordance with the principles of ordinary negligence, this analysis "focuses on whether the defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others." Henderson, 737 So.2d at 535 (quoting McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992)).

In this case, Pownall argues that a duty of care arose because the Sheriff's decision to remove seatbelts from the rear compartment of the vehicle in which he was later transported created a foreseeable zone of risk. Taking the allegations in the operative complaint as true, it was foreseeable that Pownall, who was wearing arrest restraints and had no ability to brace himself inside the rear compartment of the vehicle, would be at risk of injury in the event of a collision or sudden stop. See, e.g., Woods v.


Ohio Dep't of Rehab. & Corr., 721 N.E.2d 143, 146 (Ohio Ct. App. 1998) (holding that it was reasonably foreseeable that a...

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