Henderson v. City of St. Petersburg

• Decision Date: 07 April 1971
• Docket Number: No. 70--626,70--626
• Parties: Matthew M. HENDERSON, Appellant, v. CITY OF ST. PETERSBURG, Appellee.
• Court: Florida District Court of Appeals

Page 23

247 So.2d 23

Matthew M. HENDERSON, Appellant, v. CITY OF ST. PETERSBURG, Appellee.

No. 70--626.

District Court of Appeal of Florida, Second District.

April 7, 1971.

Rehearing Denied May 7, 1971.

Daniel B. Schuh, of Schuh, Schuh & Woodard, St. Petersburg, for appellant.

Carl R. Linn, Asst. City Atty., St. Petersburg, for appellee.

PIERCE, Chief Judge.

Matthew M. Henderson, plaintiff below, seeks review of an order dismissing his amended complaint with leave to amend. He elected to stand on his amended complaint and appealed after the time for amending had expired.

After Henderson's original complaint had been dismissed, he filed his amended complaint, alleging, inter alia:

'2. That on or about May 9, 1969, the plaintiff came to the City of St. Petersburg, Florida, for the purpose of making business deliveries, which he has done on prior occasions and because of prior criminal attacks made on him in the above city, during the process of his work as alleged above, the plaintiff went to the Police Department of the defendant City, and by specific arrangements with the officers, agents and employees of the defendant City acting within the scope of their employment, created a privity for specific police protection while he was making his deliveries in a very dark and secluded part of the town, namely at the United Produce Company, 1830 33rd Avenue South, St. Petersburg, Florida.

3. Pursuant to the instructions given to him as a result of this direct contact between the City's agents in the course of their employment and the plaintiff, the plaintiff proceeded to the above said address where he was assured officers would be there to protect him. When the plaintiff arrived at the above address, he was accosted by unknown assailants, who shot him, causing him serious and permanent injury, pain and suffering, requiring him to undergo medical care and treatment, and causing him to suffer permanent injury which reduced his earning capacity and caused him to lose time from his work, all of which injuries and losses are permanent and are continuing in the future.

4. That the aforesaid injuries and losses to the plaintiff were the result of the carelessness and negligence of the defendant City, through it's Police Department, officers and agents, in failing to properly protect the plaintiff as they had specifically undertaken through the direct contact between the City's agents and plaintiff, and upon which he had relied, to the extent that the 'special duty' created by such specific relationship and dealing was not performed but was negligently breached.'

The lower Court was of the opinion that the theories of action as set out in the complaint fall within an area of remaining municipal immunity, and that a city is not liable for failure to provide special police protection under the principles of law set out in Steinhardt v. Town of North Bay Village, Fla.App.1961, 132 So.2d 764; Wong v. City of Miami, Fla.App.1969, 229 So.2d 659; and Riss v. City of New York, Ct.App.1968, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860. Since the trial Court's order dismissing the amended complaint the Supreme Court has affirmed Wong v. City of Miami, supra, holding that the City was immune on the grounds of executive discretion, Fla.1970, 237 So.2d 132.

Henderson contends that his complaint alleged the negligence of a municipal employee in a direct transaction with appellant, relying on City of Tampa v. Davis, Fla.App.1969, 226 So.2d 450. But the complaint reveals that he is not complaining...