Relyea v. State, s. 76-1619
| Citation | 385 So.2d 1378 |
| Decision Date | 23 July 1980 |
| Docket Number | Nos. 76-1619,76-1620,s. 76-1619 |
| Parties | Pearl Dorothea RELYEA, Individually and as Administratrix of the Estate of Donna J. Fink, deceased, Appellants, v. STATE of Florida; The Board of Regents of the State of Florida; the Chancellorof the State University System of Florida and Pacific Indemnity InsuranceCompany, Appellees. George A. MAHNKE and Arlanda Mahnke, Individually and as Administratrix of theEstate of Marlene Mahnke, deceased, Appellants, v. STATE of Florida et al., Appellees. |
| Court | Florida District Court of Appeals |
Donald F. Geffner, Miami, Carl W. Taylor, Fort Lauderdale, and Harry A. Wilson and John M. Choplin, II of Wilson & Tabor, Indianapolis, Ind., for appellants.
Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
Robert L. Shevin, Atty. Gen., Tallahassee and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee, State of Florida; Winifred L. Wentworth, Gen. Counsel, for State Board of Education, Tallahassee.
This case involves a tragic incident which occurred on the campus of Florida Atlantic University (FAU) on May 14, 1970. The plaintiffs, as parents and administrators of their respective children's estates, appeal from adverse final judgments entered subsequent to a jury trial in two consolidated wrongful death actions. Prior to trial the court denied motions for judgment on the pleadings, and during trial, reserved ruling on motions for directed verdict at the close of all of the evidence. The jury was unable to reach a verdict, after which the court declared a mistrial and immediately informed counsel of the pending motions for directed verdict, requesting counsel to set the motions for hearing. Counsel were also requested to submit appropriate "judgment orders" in connection with the motions. Renewed motions for judgment on the pleadings and for directed verdict were then granted and final judgments were entered accordingly for the defendants-appellees. We affirm.
Appellants initially contend that the court erred in entertaining the post-trial motions because they were not filed timely as required by Fla.R.Civ.P. 1.480(b). For the reasons expressed below we reject this contention.
Appellants next contend that the appellees had a duty to exercise reasonable care to protect the deceaseds from foreseeable criminal conduct by third persons, and that that duty was breached by the failure to provide adequate security. Thus, it is argued that the court erred in granting the motions for judgment on the pleadings because their complaints stated a cause of action sounding in negligence. They also contend that the directed verdicts were erroneous because their proof established issues of fact for the jury. The appellees argue that, not only did the complaint fail to state a cause of action and the proof at trial fail to support a finding of duty or a breach thereof, but that they are immune from suit under the doctrine of sovereign immunity. We accept the appellees' position in each respect.
In essentially identical complaints the appellants alleged that on May 14, 1970, Donna Fink and Marlene Mahnke were seniors at FAU, enrolled in a course which was taught from 4:30 P.M. to 7:20 P.M. in a building located in a remote, outlying area on the northeast corner of the campus, approximately three quarters of a mile from the main complex of buildings. Both young ladies drove in Miss Fink's car to the building and parked near the building entrance. After class they proceeded to the car where they were assaulted by three men who abducted them, drove them to a secluded area, and murdered them. The complaint further alleged that the appellees (except for Pacific Indemnity Insurance Company) had a mandatory, non-discretionary duty to provide reasonable security for all persons lawfully on the campus, particularly for persons enrolled in classes at the University. Specific allegations of negligence attributed to the defendants were:
(1) By failing to provide an adequate number of security patrols along the roadways, land areas, and buildings on the campus of Florida Atlantic University, and in the parking areas in the vicinity of Building T-6 on said campus;
(2) By failing to provide security guards and security guard stations or gates to control the entrance and egress roadways to said Florida Atlantic University;
(3) By failing to have parking attendants at the remote facility of Building T-6;
(4) By failing to have adequate lighting in the area of Building T-6;
(5) By scheduling late afternoon and evening classes in this building remote from the central complex of Florida Atlantic University, and enrolling students, particularly female students, to attend such classes in a remote area, without adequate police or other security protection for said students;
(6) By failing to provide adequate protection for persons attending classes at said remote building;
(7) By failing to take such other measures which were necessary or reasonable to protect and safeguard the persons and lives of persons lawfully upon the campus, attending said classes; and
(8) By failing to provide a reasonably safe place upon said campus in which the decedents could attend classes and proceed to and from said classes.
We first consider whether the court erred in considering the motions for judgment on the pleadings and for directed verdicts. Fla.R.Civ.P. 1.140(c) provides:
Motion for judgment on the pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.
Here, the jury's inability to reach a verdict resulted in a mistrial. After a mistrial is declared the action remains pending in the same respect as though the trial had never occurred. Thus, the renewed motion was made within such time as not to delay the trial, and therefore, it was made in compliance with the Rule. Even though the court had previously denied the motion it retained the authority to modify or correct its interlocutory ruling.
The motion for directed verdict presents a more difficult situation. Fla.R.Civ.P. 1.480(b) provides that if a verdict is not returned, a party who has previously moved for a directed verdict at the close of all of the evidence may move for judgment in accordance with that motion within ten days after the jury has been discharged. The post-discharge motion, not having been filed within ten days, ordinarily could not be considered by the trial court. However, under the unusual circumstances of this case we find that the motion was properly considered. This is so because: (1) the trial court specifically reserved ruling on the appellees' motions for directed verdict at the close of all of the evidence; (2) immediately after the jury was discharged the court informed counsel that the reserved motions were pending and requested that they be set for hearing; (3) the court specifically requested that appropriate judgment orders in connection with the motions be submitted; and (4) all parties overtly or impliedly agreed to this procedure. Consequently, we hold that the court correctly considered the renewed motions for directed verdicts. See, 6551 Collins Avenue Corporation v. Millen, 104 So.2d 337 (Fla.1958); Dent v. Casale, 358 So.2d 1101 (Fla. 3rd DCA 1978).
We turn now to the issue of sovereign immunity. Absent statutory authorization, the State, its counties, agencies and instrumentalities, are immune from tort liability. Florida Atlantic University, the Board of Regents and the Chancellor of the State University System are agencies and instrumentalities of the State of Florida. In addition to the allegations previously noted, the appellants alleged that the State of Florida had waived sovereign immunity in this case pursuant to Section 768.15, Florida Statutes (1969) which provides:
(1) WAIVER OF IMMUNITY The State, for itself and its counties, agencies and instrumentalities, waives immunity for liability for the torts of officers, employees or servants committed in the State. The State and its counties, agencies, and instrumentalities shall be liable in the same manner as a private individual, but no...
To continue reading
Request your trial
-
Peterson v. San Francisco Community College Dist.
...9 Ariz.App. 61, 449 P.2d 78, Jesik v. Maricopa County Community College District (1980) 125 Ariz. 543, 611 P.2d 547 and Relyea v. State (Fla.App.1980) 385 So.2d 1378, students were characterized as invitees to whom a duty was owed to make the premises reasonably safe. In both Jesik and Rely......
-
Patsy v. Board of Regents of State of Florida
...a systemwide personnel classification and pay plan. Ibid. The Board is an agency of the State of Florida. § 216.011. See Relyea v. State, 385 So.2d 1378 (Fla.App.1980). It may claim the defense of sovereign immunity in suits under state law. See ibid. Numerous Courts of Appeals have held st......
-
Avallone v. Board of County Com'rs of Citrus County
...v. Butler, 476 So.2d 216 (Fla. 2d DCA 1985); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); and Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980). In each of these cases, the district courts held that the decision not to provide supervisory personnel at government faci......
-
Nero v. Kansas State University
...Cal.3d 799, 205 Cal.Rptr. 842, 685 P.2d 1193 (1984); Furek v. University of Delaware, 594 A.2d 506, 520-21 (Del.1991); Relyea v. State, 385 So.2d 1378 (Fla.Dist.App.1980), disapproved on other grounds Avallone v. Bd. of County Com'rs Citrus Cty., 493 So.2d 1002 (Fla.1986); Setrin v. Glassbo......