Huhn v. Dixie Ins. Co.

• Decision Date: 17 May 1984
• Docket Number: No. 82-1150,82-1150
• Citation: 453 So.2d 70
• Parties: Laura HUHN, Appellant, v. DIXIE INSURANCE COMPANY, etc.; the Insurance Company of North America; City of Daytona Beach, etc.; Timmy Lynn Collins and Elaine Black, a/k/a Remonie Black, Appellees.
• Court: Florida District Court of Appeals

Page 70

453 So.2d 70

Laura HUHN, Appellant, v. DIXIE INSURANCE COMPANY, etc.; the Insurance Company of North America; City of Daytona Beach, etc.; Timmy Lynn Collins and Elaine Black, a/k/a Remonie Black, Appellees.

No. 82-1150.

District Court of Appeal of Florida,

Fifth District.

May 17, 1984.

Mark A. Olewinski and Dennis P. Dore of Haas, Boehm, Brown & Rigdon, P.A., Daytona Beach, for appellant.

Alfred A. Green, Jr., Daytona Beach, for appellees City of Daytona Beach and Ins. Com. of North America.

No appearance for appellees Collins and Black.

ORFINGER, Chief Judge.

Appellant Laura Huhn, plaintiff below, seeks reversal of an order of the trial judge granting the city's motion and dismissing her action against the City of Daytona Beach for damages sustained when she was struck by an allegedly intoxicated driver while walking along the Ocean Beach in Daytona Beach. We reverse.

We are called on to determine whether the City of Daytona Beach should enjoy sovereign immunity for the actions of its police officers who stop a visibly intoxicated driver who is operating his motor vehicle in a careless and reckless fashion, but who do not arrest or otherwise detain the driver but permit him to continue operating the motor vehicle so that shortly thereafter and while still so intoxicated, he runs into and causes injury to an innocent third party. For the reasons set forth, we hold that the complaint does state a cause of action against the city under the facts presented here.

Because the instant case was decided on a motion to dismiss, for the purposes of this discussion we must assume that all well pleaded allegations of the plaintiff's complaint are true. Hylazewski v. Wet 'N Wild, Inc., 432 So.2d 1371 (Fla. 5th DCA 1983). The complaint states that on the evening of June 8, 1979 appellee Timmy Lynn Collins was negligently and carelessly driving his automobile while under the influence of alcohol. He was stopped by police officers of the City of Daytona Beach who observed "that ... Collins was operating [his] motor vehicle while intoxicated and otherwise physically unfit, due to alcohol consumption, to be operating a motor vehicle." The complaint goes on to allege that "despite such observations and knowledge on the part of the police officers, ... Collins was not detained, arrested ... or otherwise prevented from continuing to operate his motor vehicle while in an intoxicated state and shortly thereafter, at a time contemporaneous to the release of Collins by the ... officers, ... Collins while in his intoxicated state" operated his vehicle in a reckless manner on the ocean beach and struck plaintiff who was legally walking thereon. Huhn sustained extensive injuries and filed suit against appellee City of Daytona Beach, and its insurer, Insurance Company of North America. ¹

The City of Daytona Beach and its insurance company filed a motion to dismiss the complaint, stating that the city had no duty to the plaintiff any different from that owed to any member of the public and therefore it was not liable as a matter of law. As well, the motion stated that any negligent act or omission by the city in establishing when and under what circumstances motor vehicles may travel on the Atlantic Ocean Beach at Daytona Beach was a governmental decision for which the city could not be held accountable in tort. The trial court accepted the appellee's arguments and dismissed the action with prejudice as to the city and its insurer.

In order to understand why we find the trial court's decision to be in error, it is necessary to review the history of sovereign immunity in Florida. Such inquiry naturally commences with the seminal case of First National Bank v. Filer, 107 Fla. 526, 145 So. 204 (1933) in which our supreme court defined the scope of personal liability for public servants:

[W]here the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will become liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all, or to perform it properly. In such case the officer is liable as well for nonfeasance as for misfeasance or malfeasance. Id. at 535, 145 So. at 207.

The Filer standard suggested that the plaintiff was obligated to demonstrate that the officer was engaged in a ministerial function, and that the injury suffered at the hands of the officer was the proximate result of the failure or neglect of the officer to perform the non-discretionary duty. This standard was later refined in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). In Hargrove the plaintiff alleged that her husband was incarcerated in a town jail and that during the evening, when no guard or other attendant was on duty, the cell became filled with smoke resulting in the husband's fatal suffocation. The complaint averred that the city was negligent in leaving the jail unattended and the prisoner unprotected against fire, and that such negligence caused his death. The supreme court, in analyzing the history of sovereign immunity, noted that a distinction had traditionally been made by the courts between so-called governmental functions, for which immunity was the rule, and proprietary functions, for which the municipality had been held responsible for the torts of its agents. In holding that a municipal corporation could be held liable for the torts of police officers where the individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee, the Hargrove court addressed the immunity issue in this manner:

We therefore now recede from our prior decisions which hold that a municipal corporation is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior. We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla.1953, 65 So.2d 54.

Subject to the limitations above announced, we here merely hold that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done. To support the rule we hearken back to our original Florida precedent, City of Tallahassee v. Fortune , supra. Our judicial forebears there held that where an individual suffers a special personal damage not common to the community but proximately resulting from the negligence of the municipal corporation acting through its employees, such individual is entitled to redress.

Hargrove at 133, 134. Although the Hargrove decision eroded the traditional rule of immunity and held that an individual could recover when he directly and proximately was injured at the hands of a negligent municipal employee, acting within the scope of his employment, the opinion failed to indicate explicit distinctions between legislative and executive functions.

The shortcomings in the Hargrove analysis were recognized by the Florida supreme court in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). The court there stated that although Hargrove specified that legislative and judicial functions would constitute the area of continued immunity, no definition was offered of the distinction between legislative and judicial functions, on the one hand, and executive or administrative functions on the other. In the aftermath of Hargrove, the courts and litigants were left without guidance to determine whether particular actions would fall on one side or the other of the boundary line between immunity and liability.

Modlin attempted to establish a new standard for liability by applying a bright-line general duty/special duty test. The facts in Modlin were undisputed: the petitioner's wife was crushed to death by an overhead mezzanine which collapsed while she was shopping in a retail store. The complaint against the city alleged the negligent performance of a construction inspection with the resulting failure to discover the defect that eventually caused the collapse of the mezzanine. Although the Modlin court analyzed at length the distinction between legislative and executive actions the case hinged on the more rudimentary tort law principle of duty; the duty of the officer or employee to the injured citizen had to be something more than that owed to the public generally. Because the building inspector had no duty to Mrs. Modlin in any way different from that owed to any other member of the public, the court reasoned that the city could not be liable under the rule of respondeat superior. But see Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975); writ discharged, 339 So.2d 632 (Fla.1976).

In 1975 the Florida Legislature significantly modified the common-law standards for immunity by enacting section 768.28, Florida Statutes. ² The statute was intended to waive sovereign immunity for liability for torts on a broad, but qualified, scale.

In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979) the supreme court applied section 768.28 to an action against Indian River County for failure to maintain a stop sign at an intersection and for the negligent failure of the Department of Transportation to paint or replace on the pavement the word "STOP" in advance of the entrance to the intersection. The trial court dismissed the complaint and the Third District Court of Appeal affirmed.

The court analyzed the continuing...