Kaisner v. Kolb, 85-2507

• Citation: 509 So.2d 1213,12 Fla. L. Weekly 1623
• Decision Date: 01 July 1987
• Docket Number: No. 85-2507,85-2507
• Parties: 12 Fla. L. Weekly 1623 Glenn KAISNER and Barbara Kaisner, his wife, Appellants, v. Gary Joseph KOLB, Dale Robert Jones, Pinellas County Sheriff's Department, and American Druggist Insurance Company, foreign corporation, and Dale Robert Jones, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1213

509 So.2d 1213

12 Fla. L. Weekly 1623

Glenn KAISNER and Barbara Kaisner, his wife, Appellants, v. Gary Joseph KOLB, Dale Robert Jones, Pinellas County Sheriff's Department, and American Druggist Insurance Company, foreign corporation, and Dale Robert Jones, Appellees.

No. 85-2507.

District Court of Appeal of Florida Second District.

July 1, 1987.

Rehearing Denied Aug. 12, 1987.

Daniel C. Kasaris of Yanchuck, Thompson, Young, Berman & Latour, P.A., St. Petersburg, for appellants.

Jeffrey R. Fuller and Rex E. Delcamp of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for appellees.

Robert King High, Jr., and Robert M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, amicus curiae by Academy of Florida Trial Lawyers, for appellants.

DANAHY, Chief Judge.

This is a tort action brought by Mr. and Mrs. Kaisner against two sheriff's deputies, the deputies' employer (Pinellas County Sheriff's Department), and the department's insurance carrier. The Kaisners' allegations of negligence were founded on conduct of the deputies which occurred while they were engaged in the stop of the Kaisner vehicle for an investigation of a violation of Florida's traffic laws. The trial court granted summary judgment upon the motion of the defendants which urged that, on the authority of Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983), the police conduct constituted a basic discretionary governmental function and was, therefore, immune from tort liability. We affirm after an analysis of the case law on sovereign immunity, particularly the cases of Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979), Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla. 1985), Everton v. Willard, 468 So.2d 936 (Fla.1985) (approving the decision of this court), and Avallone v. Board of County Commissioners, 493 So.2d 1002 (Fla.1986).

Mr. and Mrs. Kaisner were driving their pickup truck along a major street in St. Petersburg in clear weather at approximately 5:30 p.m. on June 29, 1979. The two deputies were following the Kaisners. The deputies pulled the Kaisners over and stopped them in the curb lane of the street because the deputies suspected them of violating a traffic law. Deputy Kolb, the driver of the sheriff's patrol car, stopped his vehicle in the curb lane, approximately one to one-and-a-half car lengths behind appellants' vehicle. The deputy, who had used his siren and flashing lights to indicate to Mr. Kaisner to pull over, left the lights on top of his vehicle flashing throughout the stop and ensuing investigation. When he was stopped, Mr. Kaisner, without an order to do so, exited his truck and walked between the two vehicles. At the same time, the other officer in the patrol car, Deputy Jones, exited from the passenger side and after receiving the registration and license from Mr. Kaisner, indicated to him that he was not to approach any closer. Deputy Jones got back into the passenger side of the patrol car and handed the license and vehicle registration to Deputy Kolb who started to check them on his onboard computer. At that point, Deputy Jones again exited the patrol car moving toward Mr. Kaisner as Mr. Kaisner began again moving toward the deputy to ask why he had been stopped. At that moment, no more than three minutes after the stop, the patrol car was struck from the rear by another vehicle. The force of the crash propelled the patrol car forward, causing it to strike Mr. Kaisner and Deputy Jones, who were between the two vehicles.

In their complaint Mr. and Mrs. Kaisner alleged that the deputies were negligent while acting within the course and scope of their employment in their use and operation of the police patrol car, as well as in their failure to use proper police procedure in conducting a nonemergency traffic stop. ¹ The trial court granted summary judgment in favor of all defendants based upon the doctrine of sovereign immunity. We find that, because of the nature of the police conduct, the defendants in this suit were absolutely immune from tort liability. Because that is so, no cause of action was stated against them; thus, the trial court lacked subject matter jurisdiction in this case. ²

Dealing as we do with the issue of sovereign immunity, we follow the dictates of our supreme court in Trianon Park. There the court directs us to apply the operational/planning analysis and the principles of Evangelical Brethren [Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965) ] as adopted in Commercial Carrier. 468 So.2d at 917-18. The court reminds us that it has not receded from Commercial Carrier. 468 So.2d at 923. Evangelical Brethren provides us four questions to aid us in determining whether a particular act, omission or decision of a governmental entity is discretionary. But, before we need even consider these four questions, Trianon Park reminds us of certain fundamental principles regarding governmental tort liability. Among these principles is that the enactment of section 768.28, Florida Statutes (1975), created no new duty of care for governmental entities. Rather, the statute merely waived the immunity which prevented recovery for breaches of existing common law duties of care to the end that the identical existing duties of care for private persons apply to governmental entities. Id. at 917. Moreover, the court's decision in Commercial Carrier

did not discuss or consider conduct for which there would have been no underlying common law duty upon which to establish tort liability in the absence of sovereign immunity. Rather, we were dealing with a narrow factual situation in which there was a clear common law duty absent sovereign immunity. We expressly recognized that there were areas of governmental activity where "orthodox tort liability stops and the act of governing begins," 371 So.2d at 1018 citing Evangelical Brethren, 67 Wash.2d at 253, 407 P.2d at 444, as well as the "distinct principle of law ... which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing". 371 So.2d at 1020.

Trianon Park, 468 So.2d at 918 (emphasis added).

In deciding the threshold question whether there is an existing duty on the part of the governmental entity, the breach of which might impose liability (and, therefore, to which the affirmative defense of sovereign immunity might be addressed), Trianon Park, adding to the Commercial Carrier analysis, provides us with a framework of four categories in which to place governmental functions and activities. These four categories are:

I. Legislative, permitting, licensing and executive officer functions.

II. Enforcement of laws and protection of the public safety.

III. Capital improvement and property control functions.

IV. Providing professional, educational and general services.

Trianon Park, 468 So.2d at 919-921. As the court teaches us, the functions in the first category never carried a common law duty because these actions are inherent in the act of governing. Id. at 919 and cases cited therein. In the second category, the court gave as the most notable example of this discretionary power: that given to judges, prosecutors, arresting officers, and other law enforcement officials, as well as the discretionary authority given fire protection agencies. Id. (emphasis added). Within the second category the court further distinguished activities such as the "existing common law duties of care applicable to the same official or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law." Id. at 920. With the waiver of sovereign immunity, persons injured by alleged negligent acts of government employees in the performance of these latter acts may sue the governmental entity employing the alleged negligent actor. Id.; City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla.1985) (decision on how to fight a fire is discretionary, nontortious immune activity; conduct in driving fire-fighting equipment to scene of fire or personal injury to spectator from negligent handling of equipment at scene is actionable).

Categories III and IV, on the other hand, said the court, may carry liability depending on the nature of the act, not the status of the actor. It is when the act falls within either category III or IV that resort to the test of Evangelical Brethren is appropriate. This test is used

to determine what conduct constitutes a discretionary planning or judgmental function and what conduct is operational for which the governmental entity may be liable. Prior to the enactment of section 768.28, sovereign immunity for all governmental entities, including the state and all of its agencies and subdivisions, remained in full force except for the proprietary and special duty exceptions carved out by this Court. Section 768.28 waived governmental immunity for most government activities where there had been an underlying common law duty of care. The waiver was intended to be broad in its coverage, but clearly was not intended to create causes of action for activities that are inherently governmental in nature.

Trianon Park, 468 So.2d at 921.

According to this analysis, our first task is to determine into which of the above four categories the acts in the instant case fall. The answer is category II, enforcement of laws and protection of the public safety. There is no dispute that the deputies had reason to believe that a state traffic law was being violated. It was appropriate police work to then investigate further, which they did by pulling appellants over. The stopping of appellants' truck in the curb lane of the roadway, and the placement of their own vehicle to the rear of the truck were tactical decisions made by the deputies based on their training and experience as law enforcement officers. We...