Pollock v. Florida Dept. of Highway Patrol

• Decision Date: 10 June 2004
• Docket Number: No. SC99-41., No. SC99-8
• Citation: 882 So.2d 928
• Parties: Steven POLLOCK, etc., et al., Petitioners, v. FLORIDA DEPARTMENT OF HIGHWAY PATROL, Respondent. Michael Leeds, etc., et al., Petitioners, v. Florida Department of Highway Patrol, Respondent.
• Court: Florida Supreme Court

882 So.2d 928

Steven POLLOCK, etc., et al., Petitioners, v. FLORIDA DEPARTMENT OF HIGHWAY PATROL, Respondent.

Michael Leeds, etc., et al., Petitioners, v. Florida Department of Highway Patrol, Respondent.

Nos. SC99-8, SC99-41.

Supreme Court of Florida.

June 10, 2004.

Rehearing Denied September 8, 2004.

Dan Cytryn, Tamarac, FL, on behalf of Steven Pollock; and Jay M. Levy, Miami, FL, on behalf of Michael Leeds and Barbara Leeds, for Petitioners.

Sheridan Weissenborn and Charles C. Papy, Jr. of Papy, Weissenborn, Poole & Vraspir, P.A., Coral Gables, FL, for Respondent.

PER CURIAM.

We have for review State Department of Highway Patrol v. Pollack, 745 So.2d 446 (Fla. 3d DCA 1999),¹ based upon certified conflict with the decisions in Hoover v. Polk County Sheriff's Department, 611 So.2d 1331 (Fla. 2d DCA 1993), and Cook v. Sheriff of Collier County, 573 So.2d 406 (Fla. 2d DCA 1991). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

BACKGROUND AND MATERIAL FACTS

The tragic facts of this unfortunate case were summarized by the Third District Court of Appeal in its opinion in Pollack² (consolidated with Leeds below) as follows:

[O]n September 5, 1993, at approximately 4:00 a.m., the decedents Suzanne Leeds and Elissa Pollack were instantly killed when the automobile that Suzanne was driving, and [in which] Elissa was a passenger, collided into the back of an unlit tractor-trailer which had stalled in the right-hand lane of the Palmetto Expressway.

Earlier that morning, at approximately 3:00 a.m., Daniel Baregas had been driving this tractor-trailer when it stalled on the Palmetto Expressway, about 1000 feet away from a crescent in the highway. At or about the same time, Raul Pedrero was driving home on the Palmetto when he suddenly encountered the stalled tractor-trailer in the right-hand lane which had no markers, lights, or flares. [Note 2] Mr. Pedrero had to slam on his brakes and veer into the adjacent lane to avoid hitting the tractor-trailer.

[Note 2] Moreover, the street lighting in the area was out, which made it all the more difficult to see the tractor trailer.

Mr. Pedrero exited the Palmetto, went to a gas station and telephoned 911. His call was transferred to FHP, where Mr. Pedrero informed the dispatcher that there was a stalled tractor-trailer on the Palmetto Expressway which had no lights and no warning signs. He also advised the FHP dispatcher that he had almost hit the truck. The dispatcher told Mr. Pedrero that he would "send a unit to check it out." Mr. Pedrero returned to the vicinity of the stalled tractor-trailer to await the arrival of FHP. He waited for twenty to twenty-five minutes, during which time he saw many vehicles take evasive action to avoid hitting the stalled tractor-trailer. When FHP did not show up after twenty-five minutes, Mr. Pedrero went home. Apparently, FHP's dispatcher had failed to enter Mr. Pedrero's call into the computer for assignment; consequently, no officer was dispatched to the scene. [Note 3] At the time, the FHP had internal operating rules requiring it to dispatch a trooper to the scene of stalled vehicles. [Note 4]

[Note 3] The evidence at trial showed that officers were available to answer the call had it gone out.

[Note 4] The FHP Communication Policy/Procedures Manual, Policy 12.04.03 General Information provides in relevant part:

All reports of vehicle crashes or incidents received in the communications center shall immediately be dispatched to the appropriate trooper. If the reported crash or incident is within a city limit, then it shall be reported to the local police department.

If there is going to be a delay in dispatching a crash or incident report due to manpower shortage, then the appropriate FHP supervisor shall be notified. This notification shall be documented on the dispatch card.

No matter how the information is received, a duty officer should learn how to quickly edit given information into the Official Standards, and then broadcast it.

In addition, Rule 12.00.00 entitled Crash Prevention, provides:

Crash prevention and crash investigation are the primary functions of the Florida Highway Patrol and the duty officer's role in these endeavors are of major importance. Strict adherence to this chapter will enable every officer to handle these responsibilities in an efficient and professional manner.

Pollack, 745 So.2d at 447-48 & nn. 2-4.

In both cases, the trial court, consistent with the jury verdicts, entered judgments for the plaintiffs. On appeal, the district court reversed and directed that final judgments be entered in favor of the Florida Highway Patrol (FHP), because "there was nothing to indicate that FHP's actions or inactions were operational in nature and ... FHP otherwise owed no special duty to the decedents, as a matter of law, so as to impose governmental tort liability." Id. at 447. Furthermore, in response to the contention that FHP's duty toward the decedents arose from its own policies and procedures governing incident response, the district court held that "a governmental agency's policy or procedure manual cannot, standing alone, create an independent duty to individual citizens." Id. at 450. The court below certified a conflict with Hoover and Cook, despite finding the cases to be "distinguishable from a procedural standpoint" from the instant case. Id. at 450-51. This review followed.

ANALYSIS

We begin by narrowing our focus to the issue squarely before us. We are not faced here with the question of whether, in a modern society led to rely upon the social compact with its protective network of safeguards against public harm, the public should not be entitled to rely upon that network, nor whether a governmental agency entrusted with implementation of one such safeguard should ever ignore its responsibility to respond when alerted to a potential crisis. The answers to these morally compelling questions are obvious. However, while our rule of law generally gives effect to its moral underpinnings, these are not the only concerns manifest in the area of the law we address today. There is also an august body of law which we must follow in determining those instances in which the sovereign will be liable for failings such as occurred here.³

In the cases before us, FHP has successfully invoked sovereign immunity at the district court level in defending against the wrongful death actions filed by the Pollocks and the Leeds. In reviewing the district court decision, it is useful to restate the analytical framework applied to questions of governmental tort liability. The State of Florida has waived sovereign immunity from liability in tort actions "for any act for which a private person under similar circumstances would be held liable." Henderson v. Bowden, 737 So.2d 532, 534-35 (Fla.1999) (citing Art. X, § 13, Fla. Const.; § 768.28 Fla. Stat. (1995)).⁴ Thus, "[t]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." Henderson, 737 So.2d at 535.

If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached. See Alderman v. Lamar, 493 So.2d 495, 497 n. 1 (Fla. 5th DCA 1986)

; see also Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) ("[C]onceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.") (quoting Williams v. State, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 139 (1983)). However, if a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty. See Henderson, 737 So.2d at 535. In making this assessment, it is necessary to ascertain the character of the allegedly negligent governmental act or omission. As this Court has determined, basic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity. See id. at 537-38.

Determination of Duty

In the instant case, the petitioners contend that the duty of care owed by FHP to the decedents arose from two separate sources. First, the petitioners assert that as the governmental entity with the ultimate responsibility to patrol the state highways, and to control and regulate traffic, FHP had a common law duty to maintain the highway in a reasonably safe condition, to warn of known dangers on the roadway, and to correct any dangerous conditions. Second, the petitioners argue that FHP's policies and procedures governing incident response created a duty to dispatch an officer to the scene of the stalled tractor-trailer.⁵ After a careful review of these contentions and controlling caselaw, we conclude that FHP had no such duty of care.

The contention that FHP's common law duty to maintain the roadway and keep it free of obstructions is an outgrowth of its duty to patrol the state highways and control the movement of traffic misconstrues existing principles of duty and tort law. It is well settled that a public or private entity which owns, operates, or controls a property, including a roadway, owes a duty to maintain that property, and a corresponding duty to warn of and correct dangerous conditions thereon. See, e.g., Bailey Drainage Dist. v. Stark, 526 So.2d 678, 681 (Fla.1988)

(holding that where a controlling governmental agency knowingly maintains an intersection it has a duty to warn of and make safe dangerous conditions that are not readily apparent); City of Orlando v. Heard, 29 Fla. 581, 11 So. 182, 184 (1892) (observing that the city must exercise due diligence in repairing defects after unsafe condition of the street or sidewalk is known or knowable); Jauma v. City of Hialeah, 758...