Rabideau v. State
| Decision Date | 04 December 1980 |
| Docket Number | No. OO-341,OO-341 |
| Citation | 391 So.2d 283 |
| Court | Florida District Court of Appeals |
| Parties | Brigette RABIDEAU et al., and Monika F. Jennings et al., Appellants, v. The STATE of Florida and Oscar Sambrine, Appellees. |
Arnold R. Ginsberg, of Horton, Perse & Ginsberg, and Brumer, Cohen, Logan, Kandell & Redlus, Miami, for appellants.
Ronald W. Brooks and Mick Callahan of Brooks & Callahan, Tallahassee, for appellees.
This appeal is from a final summary judgment granted in favor of appellee, The State of Florida. We affirm.
On April 7, 1976, while operating a motor vehicle owned by appellee, The State of Florida, appellee, Oscar Sambrine, struck and killed Raymond Rabideau and Larry Jennings. Sambrine was employed as an investigator by the Secretary of State's Office and was supplied with an automobile for use in his work. On the day of the accident, after leaving work, he stopped at a bar and consumed six or seven drinks, leaving the bar at approximately 9:30 p. m. The accident occurred while he was driving home. This action for wrongful death was brought against the State and Sambrine by the survivors of Jennings and Rabideau. The State moved for summary judgment, asserting that at the time of the accident, Sambrine was outside the scope and course of his employment and, therefore, the State is protected from liability under the doctrine of sovereign immunity. In its order granting the State's motion, the trial court found no genuine issue of material fact as to the State's liability; that Sambrine was not acting within the scope of his employment when the accident occurred, and § 768.28, Florida Statutes, which waives sovereign immunity in certain instances, only waives it as to a state employee who is "acting within the scope of his office of employment"; that Sambrine was not so acting when the incident occurred. We agree.
Appellants contend (1) that since the State allowed Sambrine to use the car 24 hours a day as part of his employment, he was not outside the scope of his employment when using the car beyond working hours and (2) that under Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), sovereign immunity only exists as to planning activities of the State; that the act makes the State liable for tort claims in the same manner and to the same extent as a private individual under like circumstances; that the State having given this broad waiver of sovereign immunity, it is liable under the dangerous instrumentality doctrine for Sambrine's operation of the State's automobile.
As to appellant's contention that Sambrine was acting within the scope and course of his employment when the accident occurred, he testified in his deposition that although he was allowed to take the state-owned vehicle home with him, he was aware that it was intended for business use only and that he was not allowed to use the vehicle for personal use; that he understood that he was not allowed to use the vehicle after drinking and playing pool at a private club. In Burleson v. Stark, 357 So.2d 1038 (Fla. 4th DCA 1978), our sister court of the Fourth District, quoting from Morrison Motor Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 2d DCA 1977), said:
An employee's conduct is within the scope of his employment only if it is the kind he is employed to perform, it occurs substantially within the time and space limits of the employment and it was activated at least in part by a purpose to serve the master.
We agree with that statement. As applied to this case, Sambrine had left his employment and was not serving his master, the State, on his trip home via a bar and pool hall where he consumed a number of drinks.
Section 768.28, Florida Statutes, provides in pertinent part as follows:
(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by 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 in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
(2) * * *
(3) * * *
(4) * * *
(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, ... (Emphasis supplied.)
The foregoing statute waiving sovereign immunity contains the specific limitation that the State is only liable for the tort of its employee while he is acting within the scope of his office of employment under circumstances in which the State, if a private person, would be liable to the claimant. Since § 768.28 contains this specific limitation, we are unable to construe subsection (5), which does not contain the same statement relative to state employees, to nullify such qualification to the State's liability. Certainly the legislature did not intend in one breath to establish this qualification and in the next to extinguish it. This limitation on the State's liability for the torts of its employees is necessarily applicable to the dangerous instrumentality doctrine where someone is injured by a state employee who negligently operates an automobile entrusted to him by the State. Had the legislature intended to subject the State to liability...
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