Rodriguez v. Miami-Dade Cnty.

• Decision Date: 27 June 2013
• Docket Number: No. SC11–1913.,SC11–1913.
• Citation: 117 So.3d 400
• Parties: Jose Lazaro RODRIGUEZ, Petitioner, v. MIAMI–DADE COUNTY, Florida, Respondent.
• Court: Florida Supreme Court

117 So.3d 400

Jose Lazaro RODRIGUEZ, Petitioner,

v.MIAMI–DADE COUNTY, Florida, Respondent.

No. SC11–1913.

Supreme Court of Florida.

June 27, 2013.

Barbara A. Silverman, Curtis B. Miner, and Ervin A. Gonzalez of Colson Hicks Eidson, Coral Gables, FL, for Petitioner.

R.A. Cuevas, Jr., Miami–Dade County Attorney, and Erica S. Zaron and Albert D. Lichy, Assistant County Attorneys, Miami, FL, for Respondent.

Pamela Jo Bondi, Attorney General, and Louis F. Hubener, Chief Deputy Solicitor General and Diane G. DeWolf, Deputy Solicitor General, Tallahassee, FL, for Amicus Curiae State of Florida.

Thomas W. Poulton of DeBevoise & Poulton, P.A., Winter Park, FL, for Amicus Curiae the Florida Sheriffs Association, the Florida Association of Police Attorneys, the Miami–Dade County Association of Chiefs of Police, the Florida Police Chiefs Association. the Florida League of Cities, Inc., and the Florida Association of County Attorneys, Inc.

PARIENTE, J.

In this case, the Court once again addresses the proper use of the writ of certiorari when a governmental entity raises sovereign immunity as a basis for a motion for summary judgment, which the trial court denied. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344 (Fla.2012); Keck v. Eminisor, 104 So.3d 359 (Fla.2012). In the case before the Court, Miami–Dade County v. Rodriguez, 67 So.3d 1213, 1219 (Fla. 3d DCA 2011), Jose Lazaro Rodriguez, a business owner, filed suit against Miami–Dade County, alleging that he was negligently shot by a police officer responding to a burglary alarm at his place of business. Concluding that review by certiorari was appropriate and that the County was entitled to sovereign immunity as a matter of law, the Third District Court of Appeal certified that its decision was in direct conflict with the decisions of the Fifth District Court of Appeal in Florida A & M University Board of Trustees v. Thomas, 19 So.3d 445, 446 (Fla. 5th DCA 2009), and of the Second District Court of Appeal in Pinellas Suncoast Transit Authority v. Wrye, 750 So.2d 30, 30 (Fla. 2d DCA 1996), as to the scope of certiorari review. Rodriguez, 67 So.3d at 1223.¹

For the reasons that follow and in keeping with our recent precedent in Citizens and Keck, we hold that Miami–Dade County's claim that it is entitled to sovereign immunity is not reviewable by the appellate courts through a petition for writ of certiorari because there is no irreparable harm and because there are essential facts in dispute. We further hold that the Third District erred in concluding that a “police emergency exception” conferred planning-level sovereign immunity on the County in this case. Accordingly, we quash the Third District's decision.

FACTS

This case stems from an unfortunate factual scenario, where police officers and the business owner, Jose Lazaro Rodriguez, both responded to a burglary alarm at Rodriguez's business, and during this incident, Rodriguez was shot by one of the responding police officers. A video camera at the business recorded part of the incident but did not show the circumstances of the actual shooting because the police officer and Rodriguez were out of the view of the camera at that precise time.

Rodriguez filed a complaint against Miami–Dade County for negligence based on the wrongful shooting and for negligent retention and supervision of Officer Hernandez, one of the responding officers.² Officer Hernandez was not sued individually.³ In his complaint, Rodriguez asserted that after his alarm service informed him of the burglary, he drove to the business with his lawfully owned firearm. He alleged that after exiting his vehicle, he was shot from behind four times by Officer Hernandez, who failed to provide any prior warning before firing his gun.

After the County obtained a recording from security cameras that had captured the events surrounding the shooting, the County filed a motion for summary judgment, asserting that the video footage definitively established that Officer Hernandez was not negligent because it showed that before he fired his gun, Rodriguez pointed a firearm toward him. In addition to other defenses, the County argued that it had immunity because Officer Hernandez acted in self-defense and that it was entitled to sovereign immunity because the officer's actions were discretionary and fell under the police emergency exception.

Rodriguez opposed the motion for summary judgment, asserting that the video footage was inconclusive as to several key points and demonstrated that Officer Hernandez responded recklessly to the scene of the burglary alarm, violated basic safety procedures, and negligently created the situation where he shot an innocent civilian. Rodriguez contended that there was no emergency situation that required the officer to shoot anybody, until the officer himself recklessly created a dangerous situation by charging on the scene without providing any warning.

In support, Rodriguez relied on the affidavit of Michael Manning, a retired lieutenant from the City of Miami Police Department, who discussed numerous errors that he believed the responding officers committed, including his assertion that Officer Hernandez improperly rushed into the situation, separated from his partner, and placed himself in a dangerous position where he might need to use deadly force. Rodriguez also filed an affidavit to oppose the motion for summary judgment, in which he contested the facts. The affidavit stated that when Rodriguez drove to the store in response to the burglary alarm, he did not see any police. However, he did notice a person crawling into the store through a hole in the glass of the front door to his store. Rodriguez asserted that he had his gun in his hand and had planned to detain the robber from a distance until the police arrived. Rodriguez stated that after he exited his truck, he was shot in the left buttock from behind and the impact spun him around clockwise so that he was rotated in the direction of the shooter. He never heard anybody shout “Police” or “Freeze!”

At a hearing on the motion for summary judgment, the trial court indicated that it was troubled because the video did not “tell the entire story,” especially since the shooting itself was not visible on the video. Further, the trial court questioned whether it could determine as a matter of law that the officer was responding to an emergency, as the County asserted. The trial court denied the County's motion as to Count I (the negligence claim) and granted the County's motion as to Count II (the negligent retention claim).

The County filed a petition for writ of certiorari with the Third District, which the Third District granted. The district court recognized that generally it would not use its certiorari jurisdiction “to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable as alleged because no duty can be demonstrated” in a negligence action. Rodriguez, 67 So.3d at 1216. However, the Third District distinguished that type of case from those involving sovereign immunity, which traditionally prevented a sovereign from being sued in its own courts until the Legislature waived its sovereign immunity for torts. Id. at 1216–17. The Third District reviewed this Court's decision in Wallace v. Dean, 3 So.3d 1035, 1044–45 (Fla.2009), and concluded that “in those cases in which the conduct and function at issue clearly do not fall within the tort liability waiver, we believe that we should exercise our jurisdiction to preclude prosecution of an action where the sovereign remains immune from suit.” Rodriguez, 67 So.3d at 1219.

Finally, in its opinion, the Third District recognized that determining the applicability of sovereign immunity is often “inextricablytied to the underlying facts.” Id. (quoting Dep't of Educ. v. Roe, 679 So.2d 756, 758 (Fla.1996)). Nevertheless, the Third District characterized this case as “predicated on the doctrine of separation of powers” that it considered “distinct from immunity resting on the sovereign character of the state or municipality in the performance of its governmental functions.” Id. at 1221. The Third District invoked the “emergency exception” as a basis for essentially determining that the question in the case was a “nonjusticiable political question that is more appropriately committed to the resolution of a coordinate or constituent branch of government.” Id. at 1218 (quoting Wallace, 3 So.3d at 1053–54).

In invoking the police emergency exception, the Third District stated that this Court had “created a clear exception for police action in emergency situations.” Id. at 1221 (citing City of Pinellas Park v. Brown, 604 So.2d 1222, 1226–27 (Fla.1992) (citing Kaisner v. Kolb, 543 So.2d 732, 738 n. 3 (Fla.1989))). The Third District determined that the undisputed facts showed that “(a) a serious emergency existed, (b) the emergency was thrust upon the police by the acts of others, and (c) [the officers] were required to make split-second choices that could result in harm either way.” Id.

ANALYSIS

The certified conflict issue in this case is whether the Third District erred in holding that it had certiorari jurisdiction to review a non-final order denying the County's motion for summary judgment. However, because the Third District relied on the “emergency exception” as a basis for concluding that the County was immune from suit as a matter of law, we also must review the application of that doctrine to the facts of this case.

Certiorari Review

Subsequent to the Third District's decision in Rodriguez, we recently clarified the extremely narrow scope of a district court's ability to use its certiorari jurisdiction to address a non-final order where the trial court denied the defendant's claim that the suit was barred by sovereign immunity. Accordingly, we first review this Court's decisions in Citizens Property Insurance Corp. v. San...