Seguine v. City of Miami

• Decision Date: 12 October 1993
• Docket Number: No. 92-296,92-296
• Citation: 627 So.2d 14
• Parties: 18 Fla. L. Weekly D2212 William R. SEGUINE, Sr., as Personal Representative of the Estate of Wayne V. Seguine, Deceased, Appellant, v. CITY OF MIAMI, a Florida municipal corporation; Sergeant Fleming; Charles Wellons; George Cadavid; Walfrido Fonticiella; and John Aguiar, Appellees.
• Court: Florida District Court of Appeals

Page 14

627 So.2d 14

18 Fla. L. Weekly D2212

William R. SEGUINE, Sr., as Personal Representative of the Estate of Wayne V. Seguine, Deceased, Appellant, v. CITY OF MIAMI, a Florida municipal corporation; Sergeant Fleming; Charles Wellons; George Cadavid Walfrido Fonticiella; and John Aguiar, Appellees.

No. 92-296.

District Court of Appeal of Florida Third District.

Oct. 12, 1993.

Rehearing Denied Dec. 21, 1993.

Joe N. Unger, Arnold I. Levy, Miami, for appellant.

A. Quinn Jones, III, City of Miami Atty., and Charles C. Mays and Kathryn S. Pecko, Asst. City of Miami Attys., Miami, for appellees.

Before HUBBART, BASKIN and LEVY, JJ.

HUBBART, Judge.

This is an appeal by the plaintiff, William R. Seguine, Sr., as personal representative of the estate of Wayne V. Seguine, deceased, from an adverse final summary judgment entered in a wrongful death action. It was alleged in the action that City of Miami police officers were negligent in the method by which they attempted to arrest the plaintiff's decedent, an alleged suicide risk, and that, as a result, the decedent drowned himself in a canal rather than submit to arrest. We conclude that a police decision, as here, as to what precautions, if any, to employ in order to physically arrest an allegedly mentally disturbed or suicidal suspect is immune from tort liability because (1) such decision constitutes a discretionary police function, and (2) no special tort duty is owed by the police to such a potential arrestee under these circumstances. We accordingly affirm the final summary judgment under review.

I

Viewing the record in a light most favorable to the plaintiff, the following facts were shown below. On the evening of February 25, 1987, William Seguine, Jr. and his wife saw a television news report in Miami about a sexual assault on an elementary school girl. The report featured a composite drawing of a suspect Miami police were looking for in connection with this assault. Mrs. Seguine recognized the composite sketch as William's brother, the decedent in this case, Wayne Seguine, and called this to William's attention. The next day, William asked his brother Wayne about the attack at their construction job site. Wayne admitted that the police were looking for him in connection with the sexual assault, but denied any involvement in the crime. Wayne also stated that he would kill himself before going to jail because he had previously been in jail and had been molested there.

At first, William decided to help Wayne get out of town to avoid arrest. Fearing that Wayne might be recognized if he went home, William dropped Wayne off near the Tamiami Canal on S.W. 8th Street in Miami and told him to wait there until William returned with some clothes. When William arrived home, however, he had second thoughts about the plan and called his minister, Reverend Charles Robertson, for advice. William disclosed to Reverend Robertson that Wayne was currently being sought by the police for allegedly sexually assaulting a little girl, that Wayne was waiting for William at the canal, and that, in his opinion, Wayne was suicidal. After discussing the matter, the two men agreed that they should relay this information to the Miami police.

Pursuant to William's request, Reverend Robertson called the City of Miami Police Department and spoke to defendant Sergeant Fleming. Reverend Robertson told Fleming where Wayne was located, and that Wayne was considered suicidal. Reverend Robertson expressed great concern that special precautions be taken in approaching and apprehending Wayne, as Wayne might take his own life rather than go to jail. Sergeant Fleming assured Reverend Robertson that adequate precautions would be taken to protect Wayne and avoid any suicide.

The Miami Police Department, through its communication channels, relayed Wayne's location to three police officers in charge of the sexual assault investigation--defendants Walfrido Fonticiella, John Aguiar, and George Cadavid; these officers, however, were not informed that Wayne was represented to be a suicide risk. The three officers proceeded to the appointed location for the purpose of arresting Wayne on the sexual assault charge. Upon arrival, Fonticiella, while standing on the north bank of the Tamiami Canal, saw Wayne lying on his stomach on the south bank crawling toward the west. When Wayne stood up, Fonticiella drew his firearm and said, "Police, stop!" At that time, Wayne dove into the canal and disappeared beneath the surface. Fonticiella immediately called for Fire Rescue to come to the scene; he then tore off the rear cushion of his police car and threw it to Wayne in the canal. Officers Aguiar and Cadavid were also on the scene; Aguiar threw a nylon rope into the canal to pull Wayne out of the water. Wayne resurfaced several times, refused to grab either the flotation cushion or rope to save himself, smirked at the officers, and ultimately drowned. Officers Fonticiella and Aguiar stated that had they known that Wayne was an alleged suicide risk, they would have had Fire Rescue on hand before attempting to effect the arrest; Officer Cadavid stated that he would not have changed the procedures which were used even if he had known about Wayne's alleged suicidal tendencies.

The plaintiff William R. Seguine, Sr., Wayne's father and the personal representative of Wayne's estate, brought a wrongful death action against the defendant City of Miami and the defendant police officers claiming that the defendants' failure to take special precautions in arresting Wayne constituted negligence and resulted in Wayne's death. Based on the above-stated facts, the defendant City of Miami and the four individual defendant police officers moved for summary judgment on the ground of sovereign immunity. The trial court granted the motion and entered final summary judgment for the defendants. The plaintiff appeals.

II

The Florida law on sovereign tort immunity is immensely complex, has lent itself to multifaceted formulations and rules over the years, and has generally been developed by the courts on a case-by-case basis depending on the particular fact pattern and policy concerns presented. Frequently, the general rules announced in the cases do little in themselves to resolve particular cases and, consequently, it is often best to see how these rules have worked out in broad categories of cases so as to determine what the courts have actually done in such cases and for what reasons. See, e.g., Gerald T. Wetherington & Donald I. Pollock, Tort Suit Against Governmental Entities in Florida, 44 Fla.L.Rev. 1-105 (1992) [hereinafter Wetherington & Pollock ].

Generally speaking, the state and its subdivisions, including municipalities and counties, are sovereignly immune from tort liability unless such immunity is expressly waived by statute. See Art. X, Sec. 13, Fla. Const. Section 768.28, Florida Statutes (1985), ¹ in turn, expressly waives sovereign tort immunity and allows the maintenance of actions against the state and its subdivisions, including municipalities and counties,

"to recover damages in tort ... for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the [government entity] while acting within the scope of his office or employment under circumstances in which the [government entity], if a private person, would be liable to the claimant, in accordance with the general laws of this state...."

Id. Arguably, this statute, by its plain terms, could have been interpreted to mean that governmental and private tort liability are coextensive. Florida courts, however, have recognized two exceptions to this otherwise broad waiver of governmental tort immunity: (1) the discretionary function exception, and (2) the public duty doctrine exception. Although these exceptions are somewhat elusive and are not susceptible to neat formulations which fit all cases, the courts have nonetheless attempted to articulate these exceptions in general terms. Wetherington & Pollock, supra, at 30-31.

A

First, as to the discretionary function exception, it has been held that a governmental entity is not liable in tort when the governmental act being sued upon is "discretionary," as opposed to "operational," in nature. This exception is based on the separation of powers doctrine and recognizes that there are certain policy-making, planning, or judgmental governmental functions which are inherent in the act of governing and therefore ought not be subjected to scrutiny by judge or jury as to the wisdom of their performance because it would inappropriately entangle the courts in fundamental questions of planning and policy. On the other hand, governmental acts which attempt to implement policy at the operational level do not fall within this discretionary act exception. Kaisner v. Kolb, 543 So.2d 732 (Fla.1989); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

Second, as to the public duty doctrine exception, it has been held that a governmental entity is not liable in tort for breaching a duty which the government owes to the public generally, as opposed to a special tort duty owed to a particular individual. A plaintiff suing a governmental entity in tort must allege and prove that the defendant breached a common law or statutory tort duty owed to the plaintiff individually and not a tort duty owed to the public generally. This exception, which is hardly self-executing, is primarily based on the need to protect the government from excessive fiscal impact due to overburdensome tort liability; it also rests on the need to prevent the chilling of the law enforcement processes, as well as the availability of other remedies against private parties who initially created the danger which caused the damage. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985).

It is important to understand that if either exception to...