Jetton v. Jacksonville Elec. Authority

• Decision Date: 29 May 1981
• Docket Number: No. VV-212,VV-212
• Citation: 399 So.2d 396
• Parties: Jerry JETTON, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, Appellee.
• Court: Florida District Court of Appeals

Page 396

399 So.2d 396

Jerry JETTON, Appellant, v.JACKSONVILLE ELECTRIC AUTHORITY, Appellee.

No. VV-212.

District Court of Appeal of Florida, First District.

May 29, 1981.

Rehearing Denied July 1, 1981.

Robert L. Cowles and James R. Barfield, of Cowles, Coker & Myers, Jacksonville, for appellant.

Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Gen. Counsel, City of Jacksonville, Jacksonville, for appellee.

ROBERT P. SMITH, Jr., Judge.

Jetton, injured when building materials he was carrying touched a JEA electrical transmission line, appeals a circuit court decision that Section 768.28(5), Florida Statutes(1977), constitutionally imposes a monetary limit on governmental tort liability.Appellant argues that the statute violates constitutional guaranties of redress for injury, ¹ equal protection, ² and due process, ³ among others.We find no unconstitutional infringement of these rights in a statute altering the common law to enhance the overall protection available now to victims of governmental torts.We affirm.

Section 768.28 waives sovereign immunity to tort claims against the state and its subdivisions in cases where a private person would be liable.⁴While exposing those governmental units to substantially broadened liability for their torts, the legislature at the same time placed limits on recovery of $50,000 per individual and $100,000 per incident and noted that claimants remain free to seek legislative relief bills, as they did during days of complete sovereign immunity.⁵In 1977, the legislature further amended Section 768.28(5) to make clear that the waiver and new recovery limits applied to tort actions growing out of "proprietary" as well as "governmental" functions of municipalities.⁶Traditionally, no sovereign immunity attached to proprietary functions; a municipal corporation, like any other corporation, was deemed to act in proprietary matters for private, not public, benefit.E. g., Chardkoff Junk Co. v. City of Tampa, 102 Fla. 501, 135 So. 457(Fla.1931).Use of the "proprietary function" test to determine the existence of municipal sovereign immunity, long subject to criticism, ⁷ was laid to rest in Florida by Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010(Fla.1979).

We cannot accept appellant's threshold contention that JEA is not entitled to the Section 768.28(5) limitation on recovery because it is not a municipal agency.We agree with JEA that it is a governmental unit, an electric utility operated by the City of Jacksonville.Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81(Fla. 3d DCA1975);Amerson v. Jacksonville Electric Authority, 362 So.2d 433(Fla. 1st DCA1978).The waiver of sovereign immunity under the statute clearly extends to units that, like JEA, are "primarily acting as instrumentalities or agencies of ... municipalities."Fla.Stat. § 768.28(2)(1977).

Mindful of the presumption that legislative enactments are constitutional, e. g., Cilento v. State, 377 So.2d 663(Fla.1979), we turn to appellant's argument that the legislature impermissibly abolished rights to redress under Article I, Section 21 of the Florida Constitution when it limited the amount he may recover to $50,000.Prior to enactment of Section 768.28, appellant argues, his recovery would have been unlimited because operating an electric plant is a proprietary function.On the basis of Kluger v. White, 281 So.2d 1(Fla.1973), appellant would have us find that this legislative alteration of his prior right interferes unconstitutionally with his redress for injuries, absent any adequate substitute remedy.

While we may agree with appellant that municipal electrical operations were proprietary functions under the now discarded test for municipal sovereign immunity, we disagree with his assertion that Kluger dictates the result he desires.In Kluger, the Supreme Court held only that the complete abolition of a prior common law right to recover for automobile accident property damages violates the right to redress provision, absent either a substitute remedy "to protect the rights of the people of the State to redress for injuries" or a legislative demonstration of "overpowering public necessity."281 So.2d at 4.

Guided by case law subsequent to Kluger, we narrowly construe the instances in which constitutional violations will arise.The Constitution does not require a substitute remedy unless legislative action has abolished or totally eliminated a previously recognized cause of action.

As discussed in Kluger and borne out in later decisions, no substitute remedy need be supplied by legislation which reduces but does not destroy a cause of action.The Court pointed out that legislative changes in the standard of care required, making recovery for negligence more difficult, impede but do not bar recovery, and so are not constitutionally suspect.Kluger, 281 So.2d at 4, discussingMcMillan v. Nelson, 149 Fla. 334, 5 So.2d 867(Fla.1942)(automobile guest statute).Accord, Abdin v. Fischer, 374 So.2d 1379(Fla.1979)(limiting liability of owners of public recreational areas).Similarly, shortening the period in which a litigant may sue, as opposed to barring his cause of action entirely, does not trigger the substitute remedy requirement.⁸Nor does elimination of one possible ground for relief require the legislature to provide some replacement.⁹

In contrast to Kluger and other cases¹⁰ involving complete abolition of an established cause of action, appellant's cause of action has only been limited by the imposition of a dollar cap on the available recovery.Moreover, appellant frames the constitutional question too narrowly when he complains that those injured by governmental negligence in proprietary functions have by this statute been deprived of access to their previous remedies.In identifying the cause of action arguably abolished or limited, we need not myopically concern ourselves only with that discrete class of persons who are injured by municipal negligence in performing a proprietary function.Appellant and others so injured are properly viewed as among all victims of tort committed by municipalities or other governmental agencies affected by the statute in question.To benefit that larger class the legislature waived government's tort immunity and created general liability where there was none previously, eliminating arbitrary distinctions between tort victims.

Consider White v. Clayton, 323 So.2d 573, 575(Fla.1975), in which the Court found no constitutional infirmity in changes to the wrongful death statute which "increase(d) damages in some circumstances and decrease(d) them in others."The class of persons whose access to remedies the Court examined in White included all those family members who are financially injured by the wrongful death of another.Here, similarly, we are concerned with the access rights of all those injured by governmental negligence.Finding that the class as a whole retains access to prior remedies or achieves access to greater remedies, as a result of the legislation, ends the constitutional inquiry, regardless of limitations placed on the recoveries of some within the class.Any rule preventing the legislature from decreasing the remedies of some within the affected class, while increasing the remedies of others, would appear to commit Florida constitutionally to an ever expanding tort liability system.By no means is that a recognized constitutional principle.See alsoEstate of Cargill v. City of Rochester, 119 N.H. 661, 664-65, 406 A.2d 704, 706(1979)($50,000 statutory limit on municipal tort liability does not violate state constitution's right to certain remedy clause);Stanhope v. Brown County, 90 Wis.2d 823, 844-45, 280 N.W.2d 711, 720(1979)($25,000 limit does not violate similar clause).

Appellant also argues that Section 768.28 is unconstitutional because it violates the due process and equal protection clauses.As to due process, we are not prepared to find that the legislature had no rational basis for imposing a $50,000 recovery limit if that limit was considered sufficient to permit full recovery in the vast majority of the cases.¹¹Such a limit also permitted governmental units to order their fiscal planning.Accord, State v. Silva, 86 Nev. 911, 478 P.2d 591(1971).For the same reasons we find no violation of equal protection, there being a rational relationship between the statutory classifications of tort victims and the object of the legislation.E. g., Lasky v. State Farm Ins. Co., 296 So.2d 9, 18-20(Fla.1974).Here the classifications were designed to enable enhanced recoveries in most cases while recognizing that requiring local governments to protect themselves against full liability could impose too heavy a financial burden on local taxpayers.SeeStanhope, supra.

Since Section 768.28 neither abolished any common law rights to redress nor irrationally impinged other constitutional guarantees, we find its limits on tort liability constitutional.Absent any finding of arbitrariness, it is the legislature that must determine periodically whether such limits on recovery should be adjusted for inflation or, as some suggest, to reflect differing abilities to pay between major state agencies and minor hamlets.¹²The decision of the trial court is AFFIRMED.

SHAW, J., and RUDD, JOHN A., Associate Judge, concur.

1Article I, Section 21 of the Florida Constitution provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

See generally, Note, Article I, Section 21: Access to Courts in Florida, 5 Fla.St.U.L.Rev. 871(1977).

2U.S.Const. amend. XIV§ 1;Art. I, § 2,Fla.Const.

3U.S.Const. amend. XIV§ 1;Art. I, § 9,Fla.Const.

4Section 768.28(5),Fla.Stat.(1977), in pertinent part provides:

The state and its agencies and subdivisions shall be liable for tort claims in the same...