Hollis v. School Bd. of Leon County

• Decision Date: 19 May 1980
• Docket Number: No. JJ-496,JJ-496
• Parties: Marsha HOLLIS, as Personal Representative for the Estate of Tiffany Helina Hollis, Appellant, v. The SCHOOL BOARD OF LEON COUNTY, Florida, Ned B. Lovell, as Superintendent of the School Board of Leon County, Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 661

384 So.2d 661

Marsha HOLLIS, as Personal Representative for the Estate of Tiffany Helina Hollis, Appellant, v. The SCHOOL BOARD OF LEON COUNTY, Florida, Ned B. Lovell, as Superintendent of the School Board of Leon County, Florida, et al., Appellees.

No. JJ-496.

District Court of Appeal of Florida, First District.

May 19, 1980.

Rehearing Denied June 27, 1980.

Edward S. Jaffry of Horne, Rhodes, Jaffry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellant.

J. Lewis Hall, Jr., Michael L. Granger of Keen, O'Kelley, Field & Ellis, Tallahassee, for appellees.

ERVIN, Judge.

This is an appeal from a final summary judgment absolving the Superintendent of Leon County ¹ from any liability to the estate of Tiffany Hollis, aged five, arising from her death, caused by the alleged negligence of a school bus driver whose bus ran over her while she was crossing in front of it. ² The court held that the record, including the estate's two-count complaint charging generally the superintendent with (1) vicarious negligence, and (2) active negligence in failing to have the school bus properly inspected or examined, showed only that the superintendent's activities pertained "to governmental discretionary functions which do not give rise to tort liability." We agree with appellant that genuine issues of material fact remain undecided and so reverse and remand.

I. SUMMARY JUDGMENT AS TO COUNT I, ALLEGING THE SUPERINTENDENT'S LIABILITY UNDER RESPONDEAT SUPERIOR

The superintendent's vicarious responsibility for the bus driver's negligence is determined by an answer to the following questions: Was the bus driver the employee of the superintendent as well as of the school board? If so, for purposes of suit under Section 768.28, is the superintendent an agency or subdivision of the state?

Section 768.28(1) permits actions against the state, its agencies or subdivisions for injuries, death, etc., caused by the negligent "employee of the agency or subdivision while acting within the scope of his . . . employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant . . . ." (emphasis supplied)

In the private sector, if the person actively responsible for an injury was in the employment of two or more persons as joint employers, both or all of them may be held liable. 53 Am.Jur.2d, Master and Servant, § 412, at 420 (1970). The general rule is that persons who combine to commit a wrong are joint tortfeasors ³ and are responsible for the acts of each other. Therefore, if both the superintendent and the board are considered joint employers of the driver, both may be vicariously liable to the same extent as private employers. We find the superintendent is an employer of the driver.

In cases involving interpretations of the Federal Tort Claims Act, after which the Florida act is modeled, ⁴ federal courts have held the primary test as to whether a person causing an injury is an employee of the government is who controls or has the right to control that person's work. See, e.g., Logue v. United States, 412 U.S. 521, 527-528, 93 S.Ct. 2215, 37 L.Ed.2d 121, 128 (1973); Gowdy v. United States, 412 F.2d 525, 534 (6th Cir. 1969); Eutsler v. United States, 376 F.2d 634 (10th Cir. 1967); Yates v. United States, 365 F.2d 663 (4th Cir. 1966); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Lavitt v. United States, 177 F.2d 627 (2d Cir. 1949). The rule in Florida as to non-public employers is the same. See, e.g., Mumby v. Bowden, 25 Fla. 454, 6 So. 453 (1889); St. Johns & H.R. Co. v. Shalley, 33 Fla. 397, 14 So. 890 (1894); Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927).

Applying the same test here, ⁵ we find abundant statutory authority placing control of the bus driver under the board and the superintendent. While the board is given "organization and control of the public schools of the district . . .", Section 230.03(2) (emphasis supplied), we consider that within the broad statutory scheme, control is in fact diffused between both the school board and the superintendent. The superintendent, as the executive officer of the school board, Section 230.03(3), has responsibility for the administration of the schools and the supervision of instruction. Id. He has the right to exercise general oversight over the district school system in order to determine problems and needs, to recommend improvements, and to recommend to the school board the adoption of policy. Section 230.32(1), (3). Additionally, he recommends in writing to the board the employment of all instructional and non-instructional personnel. Section 230.33(7)(b). He recommends plans and procedures for providing facilities for the economical and safe transportation of pupils, Sections 230.33(1), 234.01, and he notifies the board of any school bus which does not meet all requirements of law. Section 234.02(2). Only after recommendations have been proposed by the superintendent does the board exercise its option either to reject or adopt them. See, for example, Section 230.23(8). Finally the board may not reject the recommended employment of school bus drivers except for good cause. Section 230.23(5)(b).

We conclude the district school system is a hydra-headed organization whose day-to-day operations are overseen by its chief administrator, the school superintendent, but whose control is technically vested in the school board. Dual control, then is placed in both the superintendent and the school board for the operation and administration of the district school system in Florida. It necessarily follows that both the superintendent and the board controlled the actions of the bus driver, and both must be considered his joint employers.

This conclusion is supported by our previous examinations of the superintendent's and the board's shared responsibilities. For example, we have refused to hold a school board immune from an unfair labor practice when it argued it acted in good faith on a superintendent's recommendation not to rehire a non-tenured refrigeration mechanic, Columbia Cty. Bd., etc. v. Public Emp. Rel. Comm., 353 So.2d 127 (Fla.1st DCA 1977). We there observed that when the board routinely accepted the superintendent's hiring recommendations, it was sufficient proof of an unfair labor practice if the recommendations were tainted by the impermissible motives of the superintendent or other subordinate. More recently we sustained a trial court's order allowing a blind person the opportunity to demonstrate that he could function as a teacher in physical education at a public school. Zorick v. Tynes, 372 So.2d 133 (Fla.1st DCA 1979). And, in rejecting the board's argument that its refusal to hire the applicant was justified because the superintendent's subordinate had not recommended his employment to it, we concluded that both "the board and the superintendent . . . share . . . vicarious responsibility for any unlawful purpose of the subordinate." Id. at 142.

It remains to be determined, however, whether the superintendent, under the provisions of Section 768.28(2), ⁶ may be considered an agency or subdivision of the state. The answer to this question once more is resolved by examining those federal cases which have addressed the question whether the employer of the negligent employee is an agency within the meaning of the Tort Claims Act. The cases generally state that the immediate employer of the allegedly negligent employee is a federal agency if the employer is an integral part of the government. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942); United States v. Holcombe, 277 F.2d 143 (4th Cir. 1960).

We think it is obvious the superintendent is an integral part of the state government. The district school superintendent, like members of the school board, is a constitutional officer. Article IX, § 5, Florida Const. (1968). While the superintendent may be appointed by the school board in a district in which the people by resolution approve the appointive system, Section 230.24, the Leon County School Superintendent has at all times been elected by the people of Leon County. Since he acts as administrator and chief executive officer of the board, who recommends the adoption of policy to the board, the board could not effectively function without his assistance. The superintendent then is an integral part of the government and must be considered an agency as that term is defined in Section 768.28(2). ⁷

We conclude that a public school bus driver serves two masters: the school board and the superintendent, and any negligent act committed by him within the scope of his employment subjects both to liability.

II. SUMMARY JUDGMENT AS TO COUNT II, ALLEGING THE SUPERINTENDENT'S NEGLIGENT FAILURE TO INSPECT OR MAINTAIN ADEQUATELY A SCHOOL BUS

We cannot accept the lower court's conclusion that the superintendent is absolved from any liability because he acted within the appropriate limits of his discretion. The discretionary function exception to tort claims against the state, judicially adopted in Florida, ⁸ Commercial Carrier Corp. v. Indian River Cty., supra, n.5, is limited to functions occurring only at the planning level, not at the operational level, defined as the level at which policy is implemented. Id. at 1021. Thus when plans are completed and carried into effect, the operations implementing such plans are not immune from tort claims. Examples of such functions include the maintenance of traffic signal lights and stop signs, id. at 1022, and of a roadway and its shoulders. Wojtan v. Hernando Co., 379 So.2d 198 (Fla.5th DCA 1980). A more analogous situation to the issue before us occurred in Seaboard Coastline Railroad Co. v. United States, 473 F.2d 714 (5th Cir. 1973), where the government raised the discretionary function defense to a tort claim filed against it by a railroad whose complaint alleged that the...