State, Dept. of Health and Rehabilitative Services v. Yamuni

• Decision Date: 08 July 1986
• Docket Number: No. 85-730,85-730
• Citation: 498 So.2d 441,11 Fla. L. Weekly 1495
• Parties: 11 Fla. L. Weekly 1495, 11 Fla. L. Weekly 2231 STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Stella YAMUNI, as adoptive mother, next friend and guardian of Sean Yamuni, a minor, Appellee.
• Court: Florida District Court of Appeals

Page 441

498 So.2d 441

11 Fla. L. Weekly 1495, 11 Fla. L. Weekly 2231

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Stella YAMUNI, as adoptive mother, next friend and guardian of Sean Yamuni, a minor, Appellee.

No. 85-730.

District Court of Appeal of Florida,

Third District.

July 8, 1986.

Certification Granted Oct. 21, 1986.

Walton, Lantaff, Schroeder & Carson and George W. Chesrow and Joan S. Buckley and Denise Stewart, Miami, for appellant.

George, Hartz & Lundeen, Daniels & Hicks and Ralph O. Anderson, Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

NESBITT, Judge.

The only point raised by this appeal that merits consideration is whether the trial court erred in denying the motion made by the Department of Health and Rehabilitative Services (HRS) for a directed verdict at the close of Stella Yamuni's (Yamuni) case-in-chief. We find it did not and affirm.

This action was instituted by Sean Yamuni's (Sean) adoptive mother, next of friend and guardian, Yamuni. HRS was sued for its alleged negligence in: a) the investigation of the reported abuse of Sean, and b) failing to seek a protective custody petition for Sean. It was alleged that this negligence resulted in Sean's further abuse, leading to his sustaining a broken arm which ultimately required amputation.

The jury returned a verdict for Yamuni in the amount of $3,100,000.00, which was reduced, pursuant to section 768.28, Florida Statutes (1979), to $50,000.00, and judgment was entered.

A review of the facts is unnecessary. Suffice it to say that the jury found that the HRS's caseworkers were negligent and that the verdict is supported by competent evidence.

HRS contends that the trial court erred in denying its motion for directed verdict because, as an agency of the sovereign, it is immune from liability. ¹

In a sovereign immunity case, the first step is to determine if there is a statutory or common law duty owed by the governmental entity to individual citizens with respect to the alleged negligent conduct. Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985).

Yamuni contends that HRS owed Sean a statutory duty. We agree. In Trianon, our supreme court held that a statute enacted for the protection of the general public does not give rise to a duty to individual citizens. 468 So.2d at 921-23. However, the court did not reach the question of whether a statute which is intended to protect individuals, or a class of individuals, gives rise to a duty. We find that where, as here, the express intention of the legislature is to protect a class of individuals from a particularized harm, the governmental entity entrusted with the protection owes a duty to individuals within the class. See Newsome v. Department of Corrections, 435 So.2d 887 (Fla. 1st DCA 1983) (section 945.11, Florida Statutes (1979), imposes upon the Department of Corrections a duty to supervise inmates even while "on loan" to another agency), review denied, 459 So.2d 314 (Fla.1984). The intent of the legislature in enacting section 827.07, Florida Statutes (1979), was "to provide for comprehensive protective services for abused or neglected children found in the state." § 827.07(1). This statute singles out a class of people for protection from a particularized harm. Since Sean was a member of the class protected by section 827.07, HRS owed a statutory duty to protect him from abuse and neglect.

In Trianon, the court held that a common law duty may be imposed upon a governmental entity for the way in which professional and general services are performed. 468 So.2d at 921. The services performed by HRS for abused children can only be characterized as professional, educational and general services for the health and welfare of the citizens, a category which may subject a governmental entity to liability, see Trianon at 921; Miller v. Department of Health and Rehabilitative Services, 474 So.2d 1228 (Fla. 1st DCA 1985) (HRS has underlying common law duty to mental patients, as HRS's activity is within a category which may subject HRS to liability). Thus, HRS owed a common law duty to Sean.

Having found an underlying duty owed to Sean by HRS, we next consider whether the alleged negligent conduct was discretionary, and thus excepted by implication from the waiver of sovereign immunity in section 768.28, Florida Statutes (1979). Trianon, 468 So.2d at 918; Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

The four-question test espoused in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965), was adopted by our supreme court in Commercial Carrier as an aid in determining whether the alleged negligent conduct is operational or discretionary. If all of the following questions can be answered unequivocally in the affirmative, then the conduct is discretionary, but if one or more calls for a negative response then the governmental entity may be subject to liability:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Commercial Carrier, 371 So.2d at 1019.

It is conceded by HRS that the acts, omissions or decisions of its...