Pitts v. Metropolitan Dade County, 77-1091

• Decision Date: 17 October 1978
• Docket Number: No. 77-1091,77-1091
• Parties: Janet PITTS, Appellant, v. METROPOLITAN DADE COUNTY, Florida, d/b/a Jackson Memorial Hospital, Appellee.
• Court: Florida District Court of Appeals

Page 996

374 So.2d 996

Janet PITTS, Appellant, v. METROPOLITAN DADE COUNTY, Florida, d/b/a Jackson Memorial Hospital, Appellee.

No. 77-1091.

District Court of Appeal of Florida, Third District.

Oct. 17, 1978.

On Rehearing Sept. 6, 1979.

Spence, Payne & Masington, Podhurst, Orseck & Parks and Robert Orseck, and Joel Eaton, Miami, for appellant.

Fowler, White, Burnett, Hurley, Banick & Knight and James L. Hurley, Miami, for appellee.

Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.

PER CURIAM.

Appellant, plaintiff below, appeals from a summary final judgment entered in favor of appellee, defendant below. We affirm.

Appellant, an associate professor at the School of Nursing at the University of Miami, filed a personal injury action against appellee, Dade County, d/b/a Jackson Memorial Hospital, for alleged negligence in the maintenance, operation and supervision of a parking lot at the hospital complex. The action was bottomed upon an incident in which appellant suffered permanent injuries as a result of a daylight robbery committed by a knife wielding assailant in one of the hospital's parking lots. The parking lot was owned by appellee and patrolled by its employee-security guards.

Appellee filed a motion to dismiss the complaint, which was denied, filed its answer, and, subsequent to discovery, moved for summary judgment. A hearing on the motion was held in which legal memoranda were submitted by the parties following oral argument. Thereafter, the trial judge determined that pursuant to Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) and other authorities, appellant had failed to establish a special duty owed to her by appellee, and entered summary final judgment in favor of appellee.

On appeal, appellant's primary contention is that pursuant to Section 768.28, Florida Statutes (1977), the limited waiver of sovereign immunity statute, the special duty requirement is no longer applicable. As the incident in question occurred after the effective date of the statute, January 1, 1975, appellant argues that facts giving rise to a breach of a general duty is sufficient to sustain a cause of action against appellee. We disagree. The above statutory section waiving sovereign immunity (in limited circumstances) in tort actions for the state, its agencies or subdivisions, is a separate concept from the special duty requirement as expressed in the Modlin decision. While a county may no longer be immune from liability for its tortious conduct, a plaintiff is still saddled with the burden of alleging and proving facts which amount to tortious conduct of a county. As established in Florida, these facts must be such that the negligent breach of duty alleged is something more than the duty owed to the public generally. Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977). This showing of special duty has not been abrogated by the waiver of sovereign immunity statute. Cheney v. Dade County, supra. Our view of the record is in accord with the view of the trial judge in that we likewise find no breach of a special duty owed to appellant by appellee from the facts giving rise to the incident. As no breach of a special duty has been shown, as a matter of law, appellee cannot be found negligent. Cheney v. Dade County, supra.

Accordingly, appellee being entitled to summary judgment as a matter of law, the judgment appealed is hereby affirmed.

Affirmed.

HENDRY, Judge, dissenting.

I must respectfully dissent. In my opinion Section 768.28, Florida Statutes (1977) abrogates the necessity of showing a special duty owed by Dade County to appellant. Accordingly, I would reverse the summary judgment for further proceedings.

ON PETITION FOR REHEARING

HENDRY, Judge.

This cause was considered upon the petition for rehearing filed on behalf of the appellant, Janet Pitts.

Since the Supreme Court of Florida has recently determined the scope of the waiver of sovereign immunity resulting from the enactment of Chapter 73-313, as amended by Chapter 74-235, Laws of Florida, Section 768.28, Florida Statutes (1975) ¹, in its combined opinion in Commercial Carrier Corporation v. Indian River County and Cheney v. Dade County, 371 So.2d 1010 ² we now address that issue in the cause Sub judice and find it incumbent upon us, as a matter of law, to reverse the trial court order appealed from.

Janet Pitts has appealed from a summary final judgment in favor of Dade County d/b/a Jackson Memorial Hospital, contending, Inter alia, that pursuant to Section 768.28, the limited waiver of sovereign immunity statute, the "special duty" requirement is no longer applicable.

Appellant, an associate professor at the School of Nursing at the University of Miami, filed a personal injury action against the Defendant, Dade County, for alleged negligence in the maintenance, operation and supervision of a parking lot at the hospital complex. The action was bottomed upon an incident in which appellant suffered permanent injuries as a result of a daylight robbery committed by a knife-wielding assailant in one of the hospital's parking lots. The parking lot was owned by appellee and patrolled by its employees-security guards. Appellee filed a motion to dismiss the complaint, which was denied, filed its answer, and subsequent to discovery, moved for summary judgment, which was granted.

In Commercial Carrier Corporation/Cheney, our Supreme Court, in the form of a survey of law, discussed at length the concept, constructions and interpretations of the federal and various states' sovereign immunity statutes and the numerous bases and holdings dealing with waiver thereof.

The Court, after tracing the history of the Florida precedent-setting cases (both pre- and post- § 768.28) ³ and the specific cases under review, concluded that while the Court was not prepared to embrace the notion that all acts or omissions by governmental authorities will subject them to liability in tort under the statute, it nevertheless determined that too narrow a field of operation to § 768.28 has been ascribed. The opinion sets forth that a plain reading of the statute refutes the proposition that the Legislature intended to codify the rules of sovereign immunity by predicating municipal liability upon "governmental" versus "proprietary" functions and the "special duty" versus the "general duty" dichotomy, when the legislators enacted § 768.28. Further, the court states that municipalities are included within the definition contained in § 728.25(2); for if the Legislature had intended to make the law of municipal sovereign immunity applicable to the state, its agencies and political subdivisions only, there would have been no need to include municipalities within the operation of the waiver of the statute. We note that the Court is adamant in emphasizing that not all governmental functions are exempt from waiver by the wording of the subject statute, and points to the Supreme Court of the United States' holding in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), ⁴ wherein it recites the rationale for refusal to emasculate the sovereign immunity act and its intended purpose.

"The Government in effect reads the statute (§ 2674) as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the 'non-governmental' 'governmental' quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight states will disclose an irreconcilable conflict. More than that, the decisions in each of the states are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cut the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts."

Now we turn to the Court's view on the question of whether "discretionary acts" or "judgmental acts" by governmental officials or employees are exempt from operation of the subject Florida statute. Basing its decision on the authority of holdings in some Florida cases, ⁵ as well as some from other jurisdictions, it was determined that absent an express exception in the waiver statute for discretionary functions, such governmental functions cannot be the subject of traditional tort liability. This is so because it is felt that certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance. ⁶ Thus, the Court, in order to identify said discretionary functions, has adopted the analysis as discussed in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447...