Storm v. Town of Ponce Inlet

• Decision Date: 02 January 2004
• Docket Number: No. 5D02-3555.,5D02-3555.
• Citation: 866 So.2d 713
• Parties: Richard A. STORM, Appellant, v. The TOWN OF PONCE INLET, Appellee.
• Court: Florida District Court of Appeals

866 So.2d 713

Richard A. STORM, Appellant, v. The TOWN OF PONCE INLET, Appellee.

No. 5D02-3555.

District Court of Appeal of Florida, Fifth District.

January 2, 2004.

Rehearing Denied March 2, 2004.

Robert L. McLeod II of McLeod, Canan, LLC, St. Augustine, for Appellant. Michael J. Roper and Ernest H. Kohlmyer, III, of Bell, Leeper & Roper, P.A., Orlando, for Appellee.

SHARP, W., J.

Storm appeals from an order which dismissed his complaint filed against the Town of Ponce Inlet for failure to state a cause of action based on sovereign immunity grounds. At the time the dismissal occurred, the Town was the only defendant left in the lawsuit. The original complaint also pled a cause of action against Gordis Preston, the chief building official for the Town, for supplying false information to Storm, either negligently or maliciously, concerning the proper building elevation upon which his residence needed to be built to comply with the Town's ordinances and the National Flood Insurance Program, his reasonable reliance on those misrepresentations, and the resulting damages to his property because, among other things, Storm was unable to obtain flood insurance. However, Storm dismissed Preston from the lawsuit with prejudice.

The count Storm pled against the Town based on the same facts, alleged that the Town had a common-law duty to supervise its chief officials, and that it had negligently retained Preston as its chief building official after knowing of his incompetence, misfeasance in office, and refusal to properly enforce compliance with the Town's building codes. This allegedly resulted in damage to Storm's property because of Preston's malfeasance in repeatedly misinforming Storm of the required building elevations, failure to enforce the Town's building codes, and Storm's reliance on Preston's express misrepresentations. Storm was a resident of the Town, subject to the Town's building code and regulations, obligated to obtain a building permit from the Town, through Preston, and he complied with Preston's directions and requirements to his detriment and damage. We affirm.

The standard for appellate review of a trial court's order dismissing a complaint for failure to state a cause of action is de novo.¹ The pleader is entitled to have the reviewing court accept as true all facts pled, and any inferences which may reasonably arise therefrom.² Only if, as a matter of law, the reviewing court determines no cause of action has been pled should it affirm.³

The Town relied on Trianon Park Condominium Assoc. v. City of Hialeah, 468 So.2d 912 (Fla.1985) as precedent for its position that sovereign immunity bars any remedy against the Town. The trial court agreed. Trianon decreed that there was no waiver of sovereign immunity for damages caused to individuals when building officials negligently enforced provisions of a municipal building code. The court held there could be no governmental tort liability to persons thereby because these functions fall within the first two categories of government operations (which Justice Overton defined in that case for the first time), which are immune from tort liability. Writing for a small majority, Justice Overton said:

The government clearly has no responsibility to protect personal property interests or ensure the quality of buildings that individuals erect or purchase. The proper remedy for faulty construction lies in an action against the contractor, developer, or seller.

Trianon, 468 So.2d at 923. He also cautioned that the Trianon decision "addresses only the narrow issue of exercising basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county or municipal governmental entity." Id.

Other cases decided since Trianon uniformly hold sovereign immunity bars tort liability on the part of the state or its agencies for state agents who negligently misinform members of the public about the issuance of a building permit,⁴ provide an incorrectly labeled county utility map showing an existing water main where none existed,⁵ and provide incorrect information regarding the requirements for federal flood insurance and negligently issue a building permit.⁶ The rationale for these cases is that the government owes no duty to individual members of the public for giving out accurate information or properly enforcing building codes. As one writer commented: "A duty to all is a duty to no one."⁷

However, as Storm points out in his brief, Trianon does not address the same duty issue that is raised in this case: Can a municipality be held liable in tort for negligently hiring, supervising or retaining an employee-agent, after knowing of or being put on full notice of his or her incompetence, malfeasance, and likelihood of injuring individuals in the performance of his or her designated responsibilities? Nor is Trianon the last word by the Florida Supreme Court on the difficult and, to say the least, convoluted doctrine of sovereign immunity in Florida.⁸

Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989) is a more recent effort by the court to clarify how section 768.28, Florida's waiver of sovereign immunity statute,⁹ should be interpreted in view of the somewhat disparate approaches of Trianon and Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In Kaisner, the court directed that the sovereign immunity analysis should begin with whether there is a common law or statutory duty of care that would have been applicable to an individual under similar circumstances. The court quoted from Williams v. State of California, 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d 137, 139 (1983), quoting another California case:

Conceptually, the question of the applicability of ... immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.

543 So.2d at 734 (quoting Williams, 192 Cal.Rptr. 233, 664 P.2d at 139, quoting Davidson v. City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894, 896 (1982). After determining that a common law duty exists, then the court must consider whether the doctrine of governmental immunity bars the claim under principles stated in Commercial Carrier and Avallone v. Board of County Commissioners, 493 So.2d 1002, 1005 (Fla.1986).

Many decisions by courts after Kaisner have employed this two-step approach. See Henderson v. Bowden, 737 So.2d 532 (Fla.1999)

; Vann v. Dept. of Corrections, 662 So.2d 339 (Fla.1995); Austin v. Mylander, 717 So.2d 1073 (Fla. 5th DCA 1998),

rev. denied, 729 So.2d 389 (Fla. 1999); Sams v. Oelrich, 717 So.2d 1044 (Fla. 1st DCA),

rev. denied, 725 So.2d 1109 (Fla.1998); Garcia v. Reyes, 697 So.2d 549 (Fla. 4th DCA 1997); White v. City of Waldo, 659 So.2d 707 (Fla. 1st DCA 1995),

rev. denied, 667 So.2d 774 (Fla.1996); State By and Through Office of State Attorney v. Kowalski, 617 So.2d 1099 (Fla. 5th DCA),

rev. denied, 626 So.2d 1367 (Fla.1993); Farabee v. Rider, 995 F.Supp. 1398 (M.D.Fla.1998); Johnson v. Cannon, 947 F.Supp. 1567 (M.D.Fla.1996).

1. Existence of a Common Law Duty.

The negligent retention or supervision of an incompetent, dangerous agent or servant under circumstances which establish that the employer knew or should have known of the agent's or servant's incompetence and dangerousness, and the likelihood or foreseeability that such agent or servant would injure a third person, growing out of the employment status has long been recognized as a basis for tort liability in Florida. See Mallory v. O'Neil, 69 So.2d 313 (Fla.1954)

; Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991),

rev. denied, 595 So.2d 558 (Fla.1992). This common law duty is set forth in Restatement (Second) of Torts § 317¹⁰ and Restatement (Second) of Agency 2d § 219(2) and § 213.¹¹

In Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295 (7th Cir.1991), the court said:

The tort of negligent supervision of employees enjoys a secure position in the mainstream of American common law.

950 F.2d at 1298. Only because the state involved in that case (Wisconsin) did not recognize that tort, where only economic damages were involved, did the court rule that a suit brought by a manufacturer against the Small Business Administration under the Federal Tort Claims Act should not proceed.

Florida courts have also recognized this tort in cases involving the state or one of its agencies, as a defendant. In Metropolitan Dade County v. Martino, 710 So.2d 20 (Fla. 3d DCA 1998) and Watson v. City of Hialeah, 552 So.2d 1146 (Fla. 3d DCA 1989), both decisions recognize that negligent retention or supervision of police officers or deputies is a viable tort which could be brought against the state or a municipality in a proper case.

In Martino, the court concluded that the evidence in the record was insufficient to establish negligence in hiring and supervision. And in Watson, the court ruled that the element of causation had not been proven. However, regarding this tort, it said that liability arises when an employer has a legal duty arising out of the relationship between the employment in question and the particular plaintiff, which is owed to the plaintiff if he or she is in the zone of foreseeable risks created by the employment. See also Russ v. Jacksonville, 734 So.2d 508 (Fla. 1st DCA 1999)

; Farabee v. Rider, 995 F.Supp. 1398 (M.D.Fla.1998); Johnson v. Cannon, 947 F.Supp. 1567 (M.D.Fla.1996).

This common law duty has been also recognized in the context of school boards and injury to students caused by school board employees. In School Board of Orange County v. Coffey, 524 So.2d 1052 (Fla. 5th DCA), rev. denied, 534 So.2d 401 (Fla.1988), this court said:

The retention and supervision of a teacher by a school board are not acts covered with sovereign immunity. The school board has a common law duty to protect others from the result of negligent

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