Rupp v. Bryant, 60826

CourtUnited States State Supreme Court of Florida
Citation417 So.2d 658
Docket NumberNo. 60826,60826
Parties, 5 Ed. Law Rep. 1309 Robert E. RUPP, Ray R. Stasco, and the School Board of Duval County, Florida, a body corporate, Appellants, v. Glenn K. BRYANT and Leroy Bryant, Appellees.
Decision Date15 July 1982

William G. Cooper and John F. MacLennan of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for Robert E. Rupp and Ray R. Stasco.

Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for School Bd. of Duval County, Florida.

Wm. M. Howell of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellees.

SUNDBERG, Justice.

This cause comes before us to review the decision of the District Court of Appeal, First District, which declared unconstitutional the amended version of Florida's sovereign immunity statute and also found that a cause of action for negligent conduct had been stated against the school board, a high school principal and teacher, and a cause of action for willful negligence against the latter two, for their failure to supervise extracurricular student activity during which personal injury occurred. Bryant v. School Board, 399 So.2d 417 (Fla. 1st DCA 1981). Review is mandatory because of the declaration of statutory invalidity. Art. V, § 3(b)(1), Fla.Const. (1980). Although our reasoning is quite different, we agree with the conclusions of the district court, other than those concerning the willful negligence claim.


Glenn Bryant, a student at Forrest High School in Jacksonville, and his father brought a negligence action against Ray R. Stasco, the school's principal, Robert E. Rupp, the faculty adviser for the Omega Club, and the School Board of Duval County. The Bryants complained that injuries severing Glenn's spinal cord, which resulted in permanent paralysis from the neck down, were caused by the defendants' negligence.

The complaint alleged that a school-sanctioned organization, the Omega Club, was reputed for conducting activities which violated school board regulations. Because of this reputation, the school board was required to closely monitor the club's activities. The club was required to obtain Principal Stasco's approval for extracurricular outings and was prohibited by school regulation from conducting hazing at initiation ceremonies. Appellee Rupp was assigned as faculty adviser to the club, and his presence was required at all club activities.

In October, 1975, the Omega Club decided during a meeting, unattended by Rupp, to conduct a hazing ceremony as part of an initiation. Rupp was also absent from the ensuing hazing ceremony during which Glenn Bryant received his injuries.

The first two counts of the Bryants' amended complaint, filed on February 9, 1979, allege negligence against the school board through its agents. The third count is against Rupp and Stasco individually. Count IV seems to be directed against Rupp and Stasco individually for gross and reckless negligence. The fifth count claims consequential damages of the father. The trial court dismissed the complaint with prejudice for failing to state a cause of action. The District Court of Appeal, First District, reversed the trial court, finding that the 1980 amendments to the sovereign immunity statute, section 768.28(9), Florida Statutes (1979), were unconstitutional as retroactively destroying vested rights of the Bryants to sue Rupp and Stasco. Bryant v. School Board. The amendments grant immunity from suit to state agents for ordinary negligence within the scope of duty, and apply to all pending cases as of the effective date (June 30, 1980). The court further held that the amended complaint stated a cause of action against the school board, Rupp and Stasco for ordinary negligence and against Rupp and Stasco for wanton and willful misconduct.


The first issue we confront is whether Chapter 80-271, Laws of Florida, 1 which

relieves state officers, employees and agents from personal liability for their negligent acts and which is made applicable to all pending suits as of June 30, 1980, 2 is an unconstitutionally retroactive law because violating either article I, section 9 3 or ARTICLE I, SECTION 21 OF THE FLORIDA CONSTITUTION4 and the dictates of Kluger v. White, 281 So.2d 1 (Fla.1973)

Our first step, and the heart of this issue, is to determine what legal rights the Bryants had prior to the 1980 amendments. At first glance, the issue would appear to be easily answered by our recent decision in District School Board v. Talmadge, 381 So.2d 698 (Fla.1980), which specifically stated that victims of governmental negligence had always been able to sue the employee individually, and that the waiver of sovereign immunity by section 768.28(9), Florida Statutes (1975), 5 had not altered this right. But appellants urge that Talmadge was based on an incorrect premise, and claim that public officers and employees were not subject to personal liability for their torts prior to enactment of the sovereign immunity statute. Upon examination of the law, we must concede that appellants are in part correct, and the statement that public employees were liable under all circumstances for their tortuous acts is regrettably overbroad. 6

The early Florida cases did impose an extremely broad tort liability on officers and employees for negligent conduct occurring in the course of their duties. The position of these cases was that such conduct was effectively outside the scope of the officer's or employee's authority, and was thus not protected by sovereign immunity. See Hampton v. State Board of Education, 90 Fla. 88, 102, 105 So. 323, 328

(1925). 7 This position was consistent with the prevalent view among American jurisdictions at that time which imposed personal tort liability on public servants based on the English common-law rule which had traditionally held public servants accountable for their own torts. See 2 F. Harper & F. James, The Law of Torts § 29.8 (1956); Vaughn, The Personal Accountability of Public Employees, 25 Am.U.L.Rev. 85, 87 (1975). 8

This broad liability began to be reduced during the 1930's which coincided with the massive expansion of governmental agencies and services, as well as with the beginning of governments waiving sovereign immunity. 9 The seminal Florida case of this era is First National Bank v. Filer, 107 Fla. 526, 145 So. 204 (1933), which defined the personal liability of public servants:

[W]here the law imposes upon a public officer the performance of ministerial duties in which a private individual has a special and direct interest, the officer will become liable to such individual for any injury which he may proximately sustain in consequence of the failure or neglect of the officer either to perform the duty at all, or to perform it properly. In such a case the officer is liable as well for nonfeasance as for misfeasance or malfeasance.

Id. 107 Fla. at 535, 145 So. at 207.

In 1966, the liability rule of Filer was again narrowed when this Court adopted Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and granted an absolute privilege to lower executive officials as to defamatory publications. McNayr v. Kelly, 184 So.2d 428 (Fla.1966).

The principles of Filer were developed and again focused in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). That case held that a building inspector's negligence in inspecting a building which collapsed causing a death was not actionable because his duty was owed only to the general public. Modlin developed the "special duty" requirement decreasing officer tort liability, and concomitantly decreasing governmental liability. A second limitation on liability inherent in Filer was also developed in a later case. City of Homestead v. International Association of Firefighters, 291 So.2d 38 (Fla. 3d DCA), cert. denied, 298 So.2d 414 (Fla.1974), found that a city councilman could not be personally liable for conduct during labor negotiations since such bargaining was a discretionary act of the councilman, and was not merely ministerial.

Both of these limitations were severely questioned in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), a case which overruled Modlin to some extent in rejecting the "special duty" requirement as well as the governmental/proprietary distinction. Commercial Carrier, however, specifically did not deal with personal liability and immunity of officers and employees. Id. at 1012 n.1. 10 That case dealt only with the extent to which governmental immunity had been waived. The Filer-Modlin legal standards for officers and employees thus survive Commercial Carrier, and are the standards

by which the Bryants' rights are to be measured

The Filer-Modlin standard is also the view which is prevalent in other jurisdictions:

As a rule a public officer is answerable to private persons who sustain special damage resulting from the negligent performance of the officer's imperative or ministerial duties, unless the wrong done is a violation of a duty which he owes solely to the public.

63 Am.Jur.2d Public Officers and Employees § 293 (1972) (footnotes omitted). See, e.g., Spillman v. Beauchamp, 362 S.W.2d 33 (Ky.1962) (officers and employees of a state department personally liable for negligence); Davis v. Little, 362 So.2d 642 (Miss.1978) (official immunity does not protect public officer for negligent driving in scope of duties as non-discretionary act); Oyler v. State, 618 P.2d 1042 (Wyo.1980) (public officer not entitled to per se immunity for negligence in offer of employment, but must be ascertained that actions were discretionary not ministerial; cases cited at 618 P.2d 1048 which follow this reasoning). Although federal courts have generally afforded broad immunity to officials and employees in the past, there is some tendency to qualify this official immunity and limit it to discretionary functions. Compare Barr v. Matteo; Norton v. McShane, 332 F.2d 855 (5th Cir. 1964)...

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