White v. City of Waldo

• Decision Date: 28 August 1995
• Docket Number: No. 93-2975,93-2975
• Citation: 659 So.2d 707
• Parties: 20 Fla. L. Weekly D2000 Matthew WHITE, Appellant, v. CITY OF WALDO and Lu Hindery, as Sheriff of Alachua County, Appellees.
• Court: Florida District Court of Appeals

Page 707

659 So.2d 707

20 Fla. L. Weekly D2000

Matthew WHITE, Appellant, v. CITY OF WALDO and Lu Hindery, as Sheriff of Alachua County, Appellees.

No. 93-2975.

District Court of Appeal of Florida First District.

Aug. 28, 1995.

Richard B. Davis, Jr., and Marianne S. Huestis of Davis & Register, P.A., Gainesville, for appellant.

Jeptha F. Barbour and M. Scott Thomas of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for appellee City of Waldo.

Julius F. Parker, Jr., of Parker, Skelding, Labasky & Corry, Tallahassee, for appellee Lu Hindery.

BENTON, Judge.

Matthew White brought suit on account of injuries he sustained when the motorcycle he was riding collided with a horse. On the fourth day, the trial was cut short when a verdict was directed in favor of the City of Waldo and Lu Hindery, sued in his official capacity as Sheriff of Alachua County. Appellant contends that a City policeman's efforts to capture the animal proximately caused the accident. He also faults the sheriff's office for dispatching the policeman into unincorporated Alachua County alone, and for not sending help when asked. We believe the sheriff's office's allocation of manpower is a discretionary policy decision which is not open to question in a suit for personal injuries. But we conclude that neither the Sheriff of Alachua County nor the City of Waldo enjoys sovereign immunity for an employee's active, hazard-generating "operational misfeasance," and reverse with directions for a new trial.

With the case in this posture, the standard of review is clear. Granting a motion for directed verdict is "proper only if there was no evidence upon which a jury could find," Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995), against the party for whom the verdict is directed.

It is appropriate to direct a verdict for the defendant only when the evidence considered in its entirety and the reasonable inferences to be drawn therefrom fail to prove the plaintiff's case under the issues made by the pleadings. Golden v. Morris, Fla.1951, 55 So.2d 714.

Hartnett v. Fowler, 94 So.2d 724, 725 (Fla.1957).

[A] party who moves for a directed verdict admits for the purpose of testing the motion the facts in evidence and in addition admits every reasonable and proper conclusion based thereon which is favorable to the adverse party. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903 [1943].

Id.

In reviewing the propriety of the trial court's directed verdict, this court must review the facts and inferences to be drawn in a light most favorable to appellant, the nonmoving party. Gant v. Lucy Ho's Bamboo Garden, Inc., 460 So.2d 499 (Fla. 1st DCA 1984).

Jones v. Heil Co., 566 So.2d 565, 566-67 (Fla. 1st DCA 1990). We therefore review and recount "the facts and inferences to be drawn" giving the benefit of any doubt to the plaintiff, against whom the verdict was directed.

Before light on the morning of November 5, 1988, appellant White was northbound on U.S. Highway 301. A few miles north of the limits of the City of Waldo, without warning, a palomino galloped into White's field of vision and his motorcycle's path. White and his motorcycle collided with the horse. Appellant was flung through the air seventy-five feet into a ditch. In landing, he sustained permanent, disabling injuries.

That a horse was loose first came to Officer McGrath's attention when a trucker used a citizens' band radio frequency to report the fact. Officer McGrath radioed a report in turn to the Alachua County Sheriff's Office dispatcher and asked for help. (Officer McGrath's employer, the City of Waldo, with a population of approximately 1,300, did not have its own police dispatcher.)

The dispatcher asked him to proceed to the site to verify the trucker's account. Officer McGrath found the horse standing in the median eating grass. When he told the dispatcher the situation, the dispatcher informed him that no deputies were available and asked him to handle the matter himself. Officer McGrath, who had received no special training in managing stray livestock, did not have a bridle, halter, lasso, rope, or any other pertinent gear.

He first approached the horse on foot. When he got within perhaps five feet, the horse shied and fled, leaving the grassy median and traveling along the line dividing the southbound lanes. Officer McGrath followed in his patrol car. As he got closer, he decided the car's blue lights were spooking the horse. About this time Frank Murry, a truck driver, stopped and offered his assistance. All lights were turned off. At the moment Mr. White appeared on his motorcycle, Officer McGrath was driving the patrol car, chasing the horse, with Mr. Murry seated on the patrol car's hood. Except for the motorcycle's headlight, it was pitch dark.

The trial court granted a directed verdict in favor of both defendants on grounds each had sovereign immunity. ¹ "Under the common law, law enforcement officers were considered arms of the King and while an officer might be held liable for his wrongful acts the Government or that branch of the Government for which he acted, could not be held liable on the theory that 'The King can do no Wrong', or the theory of Governmental or sovereign immunity." Kennedy v. City of Daytona Beach, 132 Fla. 675, 677, 182 So. 228, 229 (1938). Article X, Section 13 of the Florida Constitution (1968) recognizes sovereign immunity of this kind which, however, it authorizes the Legislature to waive by making "[p]rovision ... by general law for bringing suit against the state." "Section 768.28, Florida Statutes (1993), waives governmental immunity from tort liability 'under circumstances in which the state or [an] agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state.' Sec. 768.28(1), Fla.Stat. (1993)." Department of Health and Rehabilitative Servs. v. B.J.M., 656 So.2d 906, 911 (Fla.1995) For purposes of the statute, " 'state agencies or subdivisions' include ... counties and municipalities." Sec. 768.28(2), Fla.Stat. (1993).

A preliminary inquiry where one or more tort defendants raise sovereign immunity as a defense is whether the conduct complained of is tortious. "First, for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct." Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). "[T]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989).

As the California Supreme Court noted, " '[c]onceptually, 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.' " Williams v. State, 34 Cal.3d 18, 22, 192 Cal.Rptr. 233, 235, 664 P.2d 137, 139 (1983) (quoting Davidson v. City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (1982)).

Ibid. The threshold question then is what duty, if any, Officer McGrath would have owed Mr. White, if Officer McGrath had been--as Mr. Murry was--a private citizen who voluntarily set out to capture the horse. Any such duty would, of course, have been owed not to Mr. White alone but to all foreseeably imperilled users of the highway, if any there can be said to have been.

Officer McGrath and Mr. Murry did not own the horse and were not, therefore, under the duty owed by owners of domestic animals to exercise ordinary care to prevent their animals' doing harm. See Restatement of Torts, Second Sec. 518, Comment i (1977) ("If a horse is turned loose in a field that abuts upon a public highway, it may reasonably be anticipated that he will wander onto it, and that, particularly in the night time, his presence there may constitute an unreasonable danger to traffic."); Loeffler v. Rogers, 136 A.D.2d 824, 523 N.Y.S.2d 660, 661 (App.Div.1988) (horses on highway justified application of res ipsa loquitur in suit against owner).

That Mr. Murry and Officer McGrath, if he had been a private citizen, might be said to have acted as "good Samaritans" does not preclude tort liability.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm....

Restatement of Torts, Second Sec. 323 (1965). Even where there is no duty to act, the law imposes a general duty "that the actor, if he acts at all, must exercise reasonable care to make his acts safe for others." Restatement of Torts, Second Sec. 547, Comment b (1965).

If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.

Restatement of Torts, Second Sec. 321(1) (1965). Here plaintiff maintains Officer McGrath ought at least to have turned on his headlights to illuminate the horse as it galloped into the motorcycle's path. "The duty element of negligence focuses on whether the defendant's conduct foreseeably created a ... 'zone of risk' that poses a general threat of harm to others." McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992). If Officer McGrath had been "a private person, [he could have been found to] be liable to the claimant, ² in accordance with the general laws of this state." Sec. 768.28(1), Fla.Stat. (1993).

A recent decision by our supreme court in an analogous case supports this...