State, Office of State Attorney for Thirteenth Judicial Circuit v. Powell, 90-02517

• Decision Date: 11 September 1991
• Docket Number: No. 90-02517,90-02517
• Citation: 586 So.2d 1180
• Parties: 16 Fla. L. Weekly D2396 STATE of Florida, OFFICE OF the STATE ATTORNEY FOR the THIRTEENTH JUDICIAL CIRCUIT, Appellant, v. Ruby Whylly POWELL, Appellee.
• Court: Florida District Court of Appeals

Page 1180

586 So.2d 1180

16 Fla. L. Weekly D2396

STATE of Florida, OFFICE OF the STATE ATTORNEY FOR the THIRTEENTH JUDICIAL CIRCUIT, Appellant, v. Ruby Whylly POWELL, Appellee.

No. 90-02517.

District Court of Appeal of Florida Second District.

Sept. 11, 1991.

Rehearing Denied Oct. 15, 1991.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Louis F. Hubener, Asst. Atty. Gen., Tampa, for appellant.

Joel D. Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, Brown, Terrell, Hogan & Ellis, P.A., Jacksonville, and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for appellee.

Barbara Green and Dawn Euringer of Freidin, Hirsh & Green, Miami, and Karen J. Haas, Miami, amicus curiae/The Academy of Florida Trial Lawyers and Florida Ass'n for Women Lawyers, Dade County Chapter.

PARKER, Judge.

The State of Florida, Office of the State Attorney for the Thirteenth Judicial Circuit, appeals a final judgment entered against the state attorney and in favor of Ruby Whylly Powell. Powell filed a negligence claim against the state attorney, based upon the fact that she was set on fire by her husband when she appeared in court in response to a state attorney subpoena. The jury assessed damages of $2,300,000 and found Powell fifty percent negligent. We reverse, concluding that the office of the state attorney owed Powell no statutory duty of care and that no special relationship existed to create a common law duty of care.

Ms. Powell was married to Jerome Whylly. In 1981, she returned to their apartment after work and discovered bite marks and cigarette burns on their baby. Whylly, who was on probation for aggravated assault, threatened Ms. Powell with a knife and told her not to take the baby to the hospital. She slipped away with her two children, telephoned the sheriff's office, and took the baby to an emergency room. Ms. Powell then moved into a cousin's home.

When Ms. Powell returned to the apartment for clothes, she found a note and letter from Whylly in which he threatened her. She took the note and letter to an assistant state attorney who told her that nothing could be done. A few days later, she returned to the apartment and found more threatening letters from Whylly. After presenting these to the sheriff's office, they directed Ms. Powell to the state attorney's office. At that time, the state attorney's office initiated an investigation to determine whether charges should be filed against Whylly. In the same month, the state attorney's office received the report concerning the child, determined that Whylly was on probation, and obtained an arrest warrant for Whylly for violation of probation. Whylly was arrested on the probation violation charge. Subsequently, he was released on his own recognizance.

One month later, the state attorney's office served Ms. Powell with a subpoena to appear at Whylly's violation of probation hearing. She arrived at the courthouse to attend the hearing and found her husband waiting in the courtroom. Whylly threatened to hurt Ms. Powell if she stayed in the courtroom. She became frightened and returned home. When telephoned by Rick Schultz, an assistant state attorney, Ms. Powell explained that she had not attended court because she did not receive a subpoena. A few days later, Ms. Powell called Schultz to say that she had lied about not receiving the subpoena and that she had gone to court but her husband would not let her in the courtroom. Ms. Powell stated Schultz's only response was that his office would reschedule the hearing. Schultz testified he had no recollection of this conversation. The state attorney's office again subpoenaed Ms. Powell to appear at the violation of probation hearing, which was rescheduled for July 9, 1981.

On July 4, at Whylly's request, Ms. Powell took both children to visit Whylly. During this visit, she told Whylly she intended to testify at the hearing scheduled for July 9, 1981.

In the early morning of July 9, 1981, Whylly telephoned Ms. Powell and told her that he would hurt her if she appeared at court that day to testify. Ms. Powell called the police department and the sheriff's office; both refused her request for an escort. Ms. Powell testified:

After that I called the State Attorney's Office. I called and talked to Mr. Schultz, and the lady told me he was in a meeting. So I told her that I was Ruby Whylly, and I needed to talk to him because it was important because my husband called me and threatened me. And she told me, well, I'm sorry, he still can't talk to you. And I said I got to come to court and I'm scared. She said do you have a subpoena? And I said, yes, Ma'am. And she said if you have a subpoena, you better come on to court.

Armed with a pistol and a can of mace, Ms. Powell left for court with a neighbor. Upon arriving at the courthouse, she went directly to the courtroom and found Whylly sitting on a bench outside the courtroom. Ms. Powell testified that Whylly pulled her outside the building by tugging at her pants. A witness, sitting nearby, testified that Ms. Powell and Whylly were talking before they went outside, but not loudly. The witness stated that Whylly did not appear to use any force to get Ms. Powell outside, although Whylly used a finger to grab for her pocket. When Ms. Powell left the courthouse with Whylly, an armed security guard was standing close-by in the hallway. Both the witness and the security guard testified that uniformed deputies, officers, and bailiffs were in the area. ¹

Once outside, Ms. Powell and Whylly spoke for a moment, and Whylly tried to persuade Ms. Powell to go home. Ms. Powell refused, and as she turned to re-enter the courthouse, Whylly poured gasoline onto her and set her ablaze. She was severely burned. As a result, she was unable to work for thirteen months and has Ms. Powell's action against the state attorney proceeded to a jury trial. At the close of Ms. Powell's case, the state attorney moved for directed verdict upon several grounds, one of which was that Ms. Powell failed to present any evidence from which the jury could find the existence of a "special relationship" creating a duty of care on the part of the state attorney's office. The motion was renewed at the close of all the evidence. On both occasions, the trial court denied the motions. We conclude those rulings were in error.

scars on her face, arms, chest, stomach, and right thigh.

"[A] court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim." Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (emphasis in original). The state's waiver of sovereign immunity in section 768.28, Florida Statutes, does not create new duties of care. Kaisner, 543 So.2d at 733 (citing Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985)). Thus the initial issue for this court's determination is whether the state attorney's office owed a common law or statutory duty of care to an individual under these or similar circumstances.

COMMON LAW DUTY OF CARE

Ms. Powell argues that because the state attorney's office had advance knowledge of her need and repeated requests for protection and because they compelled her, by subpoena, to be in the same place at the same time as Whylly, the evidence was sufficient to demonstrate a special relationship giving rise to an actionable duty of care to assure Ms. Powell's safety. We disagree because we discern no duty, under the circumstances of this case, that required personnel in the state attorney's office to undertake any affirmative steps to protect Ms. Powell when she appeared at the courthouse pursuant to a subpoena.

Prosecutors, like judges and arresting officers, are law enforcement officials. Trianon Park Condo. Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985). It is well established that a law enforcement officer's duty to protect citizens is a general duty owed to the public as a whole. Everton v. Willard, 468 So.2d 936 (Fla.1985). A common law duty of care owed to an individual, however, arises in certain circumstances where a special relationship exists between the governmental unit and...