McGhee v. Volusia County

• Decision Date: 03 July 1996
• Docket Number: No. 85695,85695
• Citation: 679 So.2d 729
• Parties: 21 Fla. L. Weekly S293 Morris H. McGHEE, II, Petitioner, v. VOLUSIA COUNTY, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 729

679 So.2d 729

21 Fla. L. Weekly S293

Morris H. McGHEE, II, Petitioner, v. VOLUSIA COUNTY, etc., et al., Respondents.

No. 85695.

Supreme Court of Florida.

July 3, 1996.

Rehearing Denied Sept. 12, 1996.

Elizabeth H. Faiella of Elizabeth H. Faiella, P.A., Winter Park; and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Orlando, for Petitioner.

Tura Schnebly Broughton, Assistant County Attorney, DeLand, for Respondent.

Barbara Green, Coral Gables; and Roy Wasson, Miami, for Academy of Florida Trial Lawyers, amicus curiae.

William J. Roberts and William Paul Huey of Roberts & Egan, P.A., Tallahassee, for Florida Association of Counties, Inc., amicus curiae.

KOGAN, Chief Justice.

We have for review McGhee v. Volusia County, 654 So.2d 157 (Fla. 5th DCA 1995), which expressly and directly conflicts with the opinion in Swenson v. Cahoon, 111 Fla. 788, 152 So. 203 (1933). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The plaintiff Morris McGhee was arrested by Volusia County Deputy George T. Hernlen in September 1990. During booking procedures, McGhee was in handcuffs. McGhee testified that, at some point, he told Hernlen that "you all" were no longer welcome in his father's saw shop, where deputies apparently had come on occasion. According to McGhee, Hernlen asked if McGhee was threatening him, and Hernlen then lunged at McGhee, grabbed him by the throat, and began kicking McGhee with force. McGhee later sued Hernlen and the county. The trial court dismissed the action as it pertained to Volusia County. The Fifth District sitting en banc affirmed five-to-three on grounds Hernlen acted beyond the scope of his duties in attacking McGhee.

Section 768.28(9)(a), Florida Statutes (1989), provides that Florida's waiver of sovereign immunity does not apply to, and governmental employees may be personally liable for, acts beyond the scope of their duties, committed in bad faith or with malicious purpose, or that exhibited wanton and wilful disregard of human rights, safety, or property. This exception to the waiver must be read in pari materia ¹ with the general waiver statute, which states simply that the governmental agency is liable for

the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant.

§ 768.28(1), Fla. Stat. (1989) (emphasis added). The instant dispute centers on whether the allegations against Officer Hernlen, if true, constituted conduct falling outside the waiver of liability. If they did, then the sheriff cannot be held liable and summary dismissal was appropriate. If not, the sheriff may incur liability, and the trial and district courts erred in approving a summary dismissal.

The law governing liability of police agencies for the improper acts of their employees dates from the earliest years of Florida law. As Justice Glen Terrell noted, the early common law of Florida made sheriffs liable for the acts--as opposed to omissions--of deputies performed within the scope of their legal authority. Swenson v. Cahoon, 111 Fla. 788, 789, 152 So. 203, 203 (1933). In 1834, the territorial council of Florida codified the common law as it then existed in chapter 744, Laws of Florida Territory (1834). ² Subsequently, the 1868 legislature refined the statute, but once again it did so without repealing the common law doctrine. Swenson, 111 Fla. at 790, 152 So. at 203. Instead, the legislature simply added a new liability sheriffs would assume for certain omissions of their deputies. ³ The resulting effect was succinctly described by Justice Terrell when he noted that, by this statute, a sheriff now would be held liable "for the neglect and default of his deputies in the execution of their office." Swenson, Id. at 789, 152 So. at 203.

After making this observation, Justice Terrell stated that the statute in question continued to coexist with the common law rule pertaining to acts (but not omissions) of deputies. This case law illuminates the question of when a jury question exists as to the sheriff's liability. Justice Terrell described this liability in the following terms:

[O]nly those acts of a deputy that involve an abuse of power reposed in him and not those involving a usurpation of power will the sheriff be required to answer for.

Id. at 790, 152 So. at 204. Terrell further stated:

To abuse power is to use it in an extravagant manner, to employ it contrary to the law of its use, or to use it improperly and to excess. The usurpation of power has reference to the unlawful assumption, or seizure and exercise of power not vested in one, or where one interrupts another in the exercise of a right belonging to him.

Id. at 792-93, 152 So. at 204 (on rehearing). Later cases have explained the distinction in similar fashion: Acts conducted by virtue of office may result in liability for the sheriff, ⁴ whereas acts that are merely by color of office would not. ⁵ Malone v. Howell, 140 Fla. 693, 700-01, 192 So. 224, 227 (1939).

We therefore must take note that in 1981 the Court, speaking through Justice Overton, held that the waiver of sovereign immunity contained in section 768.28, Florida Statutes (Supp.1974), did not at that time alter the common law definition of "scope of employment" outlined above. Beard v. Hambrick, 396 So.2d 708, 712 (Fla.1981). This holding rested in part on the long-established rule that no change in the common law is intended unless the statute either speaks plainly in this regard or cannot otherwise be given effect. Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362 (Fla.1977).

The Beard Court, however, did limit its holding to cases arising prior to the amendments to section 768.28 contained in chapter 80-271, section 1, Laws of Florida. Id. We have not revisited the question in the interim. To these amendments we now must turn, since their language forms the core of the present dispute.

As codified at the relevant times, the 1980 amendments stated:

The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

§ 768.28(9)(a), Fla. Stat. (1989). The district courts have had occasion to interpret this statutory language on only a few occasions since its passage.

Though these opinions dealt with law enforcement agencies other than sheriffs, we find nothing in Florida law indicating that different police agencies should be subjected to differing standards in tort actions. Accordingly, these cases have persuasive value.

In Hennagan v. Department of Highway Safety & Motor Vehicles, 467 So.2d 748 (Fla. 1st DCA 1985), the court confronted a situation in which a Highway Patrol officer allegedly had "arrested" a minor child pretextually so that he later could sexually molest her. The trial court dismissed the complaint against the department on grounds the officer had exceeded the scope of his employment thereby rendering the department immune. The district court reversed on the following rationale:

Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee's act, rather than the method of performance thereof, is said to be the important consideration.

Id. at 751. We agree that this analysis would be equally true under the law as it exists today. The officer's misconduct, though illegal, clearly was accomplished through an abuse of power lawfully vested in the officer, not an unlawful usurpation of power the officer did not rightfully possess.

A second case is Richardson v. City of Pompano Beach, 511 So.2d 1121 (Fla. 4th DCA 1987), review denied, 519 So.2d 986 (Fla.1988). There the court confronted a situation in which a city police officer allegedly used excessive force in committing a false arrest. Like Hennagan, the court concluded that earlier principles defining the "scope of employment" test remained good law. Applying them to the case, the Richardson court concluded that acts did not fall beyond the scope of the officer's employment merely because they were intentional. Instead, the employing agency could assume liability in that situation, and summary dismissal was not proper. Id. at 1123-24. Once again this showed a case of lawful power abused, not of an unlawful usurpation of authority.

Our research also has disclosed a relevant summary prepared on May 2, 1980, for the House Committee on Governmental Operations by then-staff attorney Carol M. Browner. In pertinent part it states:

The Florida Supreme Court recently held that subsection (9) of Section 768.29[sic], Florida Statutes (1975), did not prevent a state officer, employee or agent from being made a party defendant in an action for injuries or damages suffered as the result of an act, event, or omission of action in the scope of his employment. Moreover, the court held, that the employee would be personally liable for that portion of a judgment rendered against him which exceeded the state's liability limits.

While this case was pending, the 1979 Legislature passed SB 474, which amended subsection (9) of Section 768.29[sic], Florida Statutes, in an attempt to clearly prevent personal liability of public employees. Although the Supreme Court did not address the 1979 legislation, there is some concern in light of their recent opinion, that the 1979 legislation does not in fact achieve the results intended, to wit: no personal liability for employees acting within the scope of their employment.

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The need for such a clear statement preventing personal liability of...