Ondrey v. Patterson, 2D03-2338.

• Decision Date: 27 February 2004
• Docket Number: No. 2D03-2338.,2D03-2338.
• Citation: 884 So.2d 50
• Parties: Mark ONDREY, Petitioner, v. Florence PATTERSON, as Personal Representative of the Estate of John W. Patterson, deceased, Respondent.
• Court: Florida District Court of Appeals

884 So.2d 50

Mark ONDREY, Petitioner, v. Florence PATTERSON, as Personal Representative of the Estate of John W. Patterson, deceased, Respondent.

No. 2D03-2338.

District Court of Appeal of Florida, Second District.

February 27, 2004.

Rehearing Denied April 30, 2004.

Thomas E. Spencer, Sr. Assistant County Attorney, Clearwater, for petitioner.

Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Petersburg, for respondent.

SILBERMAN, Judge.

Florence Patterson, as the personal representative of the estate of her son, John W. Patterson, sued Mark Ondrey, a corrections officer with the Pinellas County Sheriff's Office, and others, for the wrongful death of Mr. Patterson. Mr. Patterson committed suicide while he was being held in the Pinellas County Jail. In a motion for summary judgment, Corporal Ondrey alleged that the principles of sovereign immunity and qualified immunity precluded suit against him. The trial court denied Corporal Ondrey's motion. We have certiorari jurisdiction to review the denial of a motion for summary judgment on the issue of immunity. See Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002); Stephens v. Geoghegan, 702 So.2d 517, 521 (Fla. 2d DCA 1997). Based on the record before us, we conclude that the trial court did not depart from the essential requirements of law; therefore, we deny Corporal Ondrey's petition.

Mr. Patterson turned himself in to the Pinellas County Jail after he learned that there was a warrant for his arrest for violation of probation. Booking officers were provided with various medications that had been prescribed to Mr. Patterson for depression and bipolar disorder with psychotic features. Mr. Patterson disclosed a prior suicide attempt, and a psychiatric assessment was performed. The assessment records reflect that Mr. Patterson was anxious, manic, and fearful and that he displayed some confusion. Prior to going to the jail, Mr. Patterson had been hospitalized for depressed mood and suicidal ideation, but the intake records noted that he was not demonstrating suicidal or violent ideation.

Mr. Patterson was held at the jail in a psychological observation unit from September 28, 1999, until his death on October 1, 1999. Corporal Ondrey was on duty in the unit between 3:30 p.m. and 11:45 p.m. on September 30, during which time he had contact with Mr. Patterson.

In his affidavit and deposition testimony, Corporal Ondrey acknowledged that he observed Mr. Patterson weaving something with a shoelace and that he asked Mr. Patterson what he was doing. Mr. Patterson told Corporal Ondrey that he was weaving a cross. Corporal Ondrey took the shoelace away as contraband. Corporal Ondrey testified that shoestrings and other items of clothing are used by inmates to try to commit suicide. He stated that he had been trained on how to assess inmates for suicidal ideation, plan, and execution. To prevent suicides, a detention officer monitors inmates and provides to them care, custody, and control. If an inmate posed a suicide risk or expressed suicidal thoughts, the officer would contact the medical staff and document the inmate's statements. Corporal Ondrey testified that Mr. Patterson gave no indication that he was contemplating suicide and that he was unaware of any information that Mr. Patterson was suicidal or had a history of psychological symptoms.

On September 30, 1999, Tajhon Wilson was an inmate in a cell neighboring Mr. Patterson's cell. Mr. Wilson testified in deposition that he saw Mr. Patterson using a rosary with very strong string to try to commit suicide. Mr. Patterson told Mr. Wilson that he "couldn't take it no more," and Mr. Wilson reported this to Corporal Ondrey. Mr. Wilson observed Corporal Ondrey go to Mr. Patterson's cell, and he heard Mr. Patterson tell Corporal Ondrey that he "can't take it" and that he was going to commit suicide. According to Mr. Wilson, Corporal Ondrey responded, "Don't tell me nothing like that. You ain't attempting suicide. Don't tell me nothing like that. You will be all right." Corporal Ondrey took the rosary, counseled Mr. Patterson for another minute, and left the area.

Mr. Wilson testified that Mr. Patterson then tied a shoelace to a towel rack. Mr. Wilson told Corporal Ondrey, who responded, "Don't worry about it, he will be all right." Mr. Wilson learned the next morning that Mr. Patterson had committed suicide by hanging himself with a shoelace tied to the towel rack during the early morning hours of October 1.

Corporal Ondrey disputed Mr. Wilson's testimony. He stated that he had no reason to believe that Mr. Patterson was suicidal and that he did not have any conversations with Mr. Wilson concerning Mr. Patterson.

In count two of its complaint, the estate alleged that Corporal Ondrey "was acting, or omitting to act in the scope of his employment or function" with the sheriff's office. The complaint asserted that Corporal Ondrey was liable for Mr. Patterson's wrongful death by willfully and wantonly disregarding Mr. Patterson's human rights and safety by, among other things, failing to act in a manner that would have prevented Mr. Patterson's suicide. In count eight, the estate brought a claim pursuant to 42 U.S.C. § 1983 and alleged that Corporal Ondrey violated Mr. Patterson's constitutional rights by being "reckless and deliberately indifferent," by ignoring that Mr. Patterson was "vulnerable and an obvious and imminent risk of suicide or harm to himself," and by failing to take action to prevent Mr. Patterson's suicide.

In his motion for summary judgment, Corporal Ondrey asserted that he was immune from suit. The trial court denied the motion, finding that Mr. Wilson's deposition testimony raised a substantial question of material fact as to the issues of qualified immunity under 42 U.S.C. § 1983 and sovereign immunity under section 768.28(9)(a), Florida Statutes (1999). In reviewing the trial court's ruling on Corporal Ondrey's motion we are required to view all of the facts and inferences in the light most favorable to the estate as the nonmoving party. See Stroud v. Strawn, 675 So.2d 646, 647 (Fla. 2d DCA 1996).

With respect to sovereign immunity, section 768.28(9)(a) provides the following:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. ... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. 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 her or 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.

(Emphasis added.) The issue for summary judgment with respect to Corporal Ondrey's defense of sovereign immunity was whether he showed as a matter of law that he did not act in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights or safety so that he could not be held personally liable for Mr. Patterson's death.

Because the trial court's order comes to this court on a petition for certiorari review, Corporal Ondrey must establish that the trial court departed from the essential requirements of law, resulting in material injury that cannot be corrected in a post-judgment appeal. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). The jurisdictional threshold of whether there is material injury that cannot be corrected in a later appeal has been met. See Bd. of Regents,826 So.2d at 387 (recognizing that a defendant claiming qualified or sovereign immunity would suffer material harm, irreparable on appeal after judgment, if the defendant were required to go to trial because the defendant could not later be reimmunized from suit). Thus, we must determine whether Ondrey has established that the trial court's order constitutes "a violation of a clearly established principle of law that resulted in a miscarriage of justice." Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639 (Fla. 2d DCA 2003) (citing Combs v. State, 436 So.2d 93, 96 (Fla. 1983)).

Pursuant to section 768.28(9)(a), an employee such as Corporal Ondrey does not have sovereign immunity protection if he acts in bad faith, with malicious purpose, or in wanton and willful disregard of human rights, safety, or property. This court has previously stated that an employee's conduct must be something greater than gross negligence in order to be actionable under section 768.28(9)(a). See Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 592-94 (Fla. 2d DCA 2003).

Mr. Wilson's testimony, even though disputed by Corporal Ondrey, is evidence that Corporal Ondrey disregarded the danger that Mr. Patterson posed to himself. According to Mr. Wilson, Mr. Patterson specifically told Corporal Ondrey that he was going to commit suicide; Corporal Ondrey offered Mr. Patterson a few words of comfort and took away a shoelace or rosary; Mr. Patterson then tied a shoelace to a towel rack, and Mr. Wilson...