Parrotino v. City of Jacksonville

• Decision Date: 15 December 1992
• Docket Number: No. 89-3210,89-3210
• Parties: 18 Fla. L. Weekly D61 Tina PARROTINO, as Personal Representative of the Estate of Diana L. McFarland, Appellant, v. The CITY OF JACKSONVILLE, Florida, a Municipal Corporation, and the Office of the State Attorney, Fourth Judicial Circuit of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 586

612 So.2d 586

18 Fla. L. Weekly D61

Tina PARROTINO, as Personal Representative of the Estate of Diana L. McFarland, Appellant, v. The CITY OF JACKSONVILLE, Florida, a Municipal Corporation and the Office of the State Attorney, Fourth Judicial Circuit of Florida, Appellees.

No. 89-3210.

District Court of Appeal of Florida First District.

Dec. 15, 1992.

Rehearing Denied Jan. 20, 1993.

Darryl D. Kendrick, Jacksonville, for appellant.

James L. Harrison, Gen. Counsel and David C. Carter, Asst. Gen. Counsel, Jacksonville, for City of Jacksonville.

Robert E. Warren of Taylor, Moseley & Joyner, Jacksonville, for Office of the State Atty.

ALLEN, Judge.

The appellant, as personal representative of the estate of Diana L. McFarland, challenges the dismissal of her complaint against the appellees, the City of Jacksonville and the Office of the State Attorney, Fourth Judicial Circuit. The appellant alleged in her complaint that the appellees had a duty to protect McFarland from attack by James Wilson, and that their breach of that duty proximately caused McFarland's death. In dismissing the complaint with prejudice for failure to state a cause of action, the court found that the appellees' acts and omissions were discretionary and that McFarland was a member of the general public to whom the appellees owed no duty of care. We agree that the allegations in the complaint do not establish any duty of care owed by the City of Jacksonville, but we find the facts sufficient to allege a duty on the part of the Office of the State Attorney. Because the challenged acts of the Office of the State Attorney were operational in nature, we conclude that it enjoys no immunity from suit, and, therefore, we reverse the judgment entered in its favor.

In considering the appellees' motions to dismiss, the trial court was required to accept as true the factual allegations of the complaint. See Hochman v. Lazarus Homes Corp., 324 So.2d 205 (Fla. 3d DCA 1975). The complaint relates that McFarland terminated a personal relationship with James Wilson in the summer of 1986. Wilson, who has an extensive criminal history including acts of violence, then began to harass and threaten McFarland and her family. Between July and November of 1986, the City of Jacksonville police were summoned three times after Wilson attacked, harassed, or threatened McFarland or her family. On each occasion, the police were provided information concerning Wilson. Wilson publicly threatened McFarland's life during one of these incidents. The police advised McFarland to make a report through the Domestic Violence Program of the Office of the State Attorney and explained that such a report was necessary before they could protect her from Wilson.

McFarland contacted the Office of the State Attorney but was told that her dispute with Wilson was a police matter. On a later visit to the Office of the State Attorney in November, McFarland made a report through the Domestic Violence Program as she had been advised to do. Upon her request for protection from Wilson, she was assured that the Office of the State Attorney would act on her behalf to obtain a restraining order and assist the police in protecting her from further harassment or violence. McFarland relied upon these assurances and did not seek other legal action or means of protection. The Office of the State Attorney subsequently misplaced or misfiled the documents relating to her difficulties with Wilson. Consequently, no court order was sought and no action was taken in McFarland's behalf.

On four occasions between December of 1986 and March of 1987, Wilson again attacked, harassed, or threatened McFarland or her family. As before, the Jacksonville police were summoned each time and provided information concerning Wilson. On one occasion, Jacksonville police officers accompanied McFarland while she retrieved items of personal property from Wilson's residence. Wilson threatened her life in the officers' presence. In May of 1987, Wilson shot and killed McFarland. Thereafter, the appellant sued the appellees, alleging that their negligence was the proximate cause of McFarland's death.

In determining the sufficiency of the appellant's complaint, the initial question is whether the appellees owed a duty of care to McFarland. See City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992); Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). In Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), the court explained that governmental officials and employees responsible for the "enforcement of laws and protection of the public safety" usually owe no duty of care to an individual member of the general public. Trianon, 468 So.2d at 919-20. That is so because

there is not now, nor has there ever been, any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals. In addition, there is no common law duty to prevent the misconduct of third persons.

Trianon, 468 So.2d at 918.

Despite this general proposition, the court in Trianon recognized that, under certain circumstances, a governmental entity engaged in law enforcement and public safety functions will owe a duty of care to a member of the public. Specifically, if there is an underlying common law or statutory duty of care with respect to the alleged negligent conduct, a governmental entity engaged in law enforcement and public safety functions will be charged with a duty of care. Trianon, 468 So.2d at 917. For example, governmental entities engaged in law enforcement have always owed a common law duty of care in the operation of motor vehicles and the handling of firearms in connection with their law enforcement activities. Trianon, 468 So.2d at 920.

In Everton v. Willard, 468 So.2d 936 (Fla.1985), the court recognized that while a police officer engaged in making arrests and enforcing the law will not ordinarily owe a duty of care to any particular member of the public, if a special relationship exists between an individual and a governmental entity engaged in a police function, there may be a duty of care owed to the individual. Such a special relationship exists, for example, when police accept the responsibility to protect a person who has assisted them in the arrest or prosecution of criminal defendants and that person is in danger due to his assistance. Everton, 468 So.2d at 938. As explained in the Restatement (Second) of Torts Sec. 315(b) (1965),

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

(emphasis added).

The Jacksonville police and the Office of the State Attorney were performing law enforcement and public safety functions at all relevant times herein, so the foregoing principles concerning duties of care are applicable to them. See State, Office of the State Attorney v. Powell, 586 So.2d 1180, 1183 (Fla. 2d DCA 1991) (applying the Trianon analysis to prosecutors who, like arresting officers, are law enforcement officials). We conclude that the factual allegations in the complaint do not provide a basis for finding a common law or statutory duty owed by the Jacksonville police to McFarland. In the absence of allegations supporting such a duty, the general rule discussed in Trianon is applicable, and, thus, the trial court correctly dismissed the complaint against the City of Jacksonville.

The allegations relating to the Office of the State Attorney, however, are different. The appellant alleged that the Office of the State Attorney promised to render services to McFarland, or, more specifically, that it agreed to secure a restraining order and assist the police in protecting her from further violence. Although the promise to assist the police was somewhat nebulous, the promise to secure a restraining order was a specific undertaking to render services to McFarland. Significantly, the appellant also alleged McFarland's reliance upon these promises, her failure to seek protection elsewhere, the misplacing of the documents by the Office of the State Attorney, and McFarland's resulting death.

The common law duty alleged in the complaint is set out in the Restatement (Second) of Torts Sec. 323 (1965);

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

This duty of care and theory of recovery is recognized and applied in Florida. See, e.g., State, Dept. of Highway Safety & Motor Vehicles v. Kropff, 491 So.2d 1252 (Fla. 3d DCA 1986); Blackmon v. Nelson, Hesse, Cyril, Weber & Sparrow, 419 So.2d 405 (Fla. 2d DCA 1982); Padgett v. School Bd. of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981); and Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1981).

In Hartley v. Floyd, 512 So.2d 1022 (Fla. 1st DCA), rev. denied, 518 So.2d 1275 (Fla.1987), we implicitly applied the above-quoted principles in affirming a final judgment entered against a county sheriff. There, the plaintiff's husband, James Floyd, drowned in the Gulf of Mexico after remaining afloat beside the hull of his capsized fishing boat for approximately sixty hours. Almost seventeen hours before Floyd drowned, the plaintiff telephoned the Levy County Sheriff's Office to report that her husband had not returned when...