White v. Palm Beach County

• Decision Date: 18 March 1981
• Docket Number: Nos. 80-640,80-1360,s. 80-640
• Citation: 404 So.2d 123
• Parties: Robert Arnold WHITE, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees. Brian LINSEN, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees.
• Court: Florida District Court of Appeals

Page 123

404 So.2d 123

Robert Arnold WHITE, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees.

Brian LINSEN, Appellant, v. PALM BEACH COUNTY, Florida et al., Appellees.

Nos. 80-640, 80-1360.

District Court of Appeal of Florida, Fourth District.

March 18, 1981.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, West Palm Beach, for appellant.

Melanie C. Jacobson, Asst. County Atty., West Palm Beach, for appellees.

Jeff Tomberg, Boynton Beach, for appellant.

BERANEK, Judge.

These appeals seek reversal of the trial courts' dismissals of two separate complaints with prejudice based on a finding that neither complaint stated a cause of action. We affirm in part and reverse in part.

The White complaint alleged that Robert White, while a prisoner in the Palm Beach County Jail, was the victim of physical violence and sexual abuse by fellow prisoners. The complaint contained three counts, one each against the prisoners, the Sheriff and the County. The latter count generally alleged that Palm Beach County, as owner of the jail, had failed to use reasonable care in construction and maintenance of the jail thus causing the assaults upon plaintiff. The specific allegations can be divided into two categories. First, the physical configuration of the cells was such that jail guards could not exercise adequate surveillance. Second, the various facilities within the jail were alleged to be improperly constructed and maintained creating a substantial dehumanizing influence upon the prisoners. The facilities alleged to be inadequate were toilets and showers, food, recreation, and floor space.

The Linsen complaint similarly alleged that Brian Linsen was assaulted while a prisoner in the Palm Beach County Jail. This complaint contained counts against the County and the Sheriff. The County was alleged to own, maintain and be responsible for the condition of the jail. The County's alleged negligence included provision of an inadequate facility, insufficient funding, failure to separate dangerous inmates, and no surveillance system. The complaint contended the County had knowledge of the unsafe condition and assaults upon plaintiff.

Based upon Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), the trial court in each case found that the alleged acts of the County were within the still protected sphere of the sovereign immunity doctrine as set forth by the Florida Supreme Court and dismissed the County as a defendant. Commercial Carrier holds that although the Legislature has waived sovereign immunity on a broad basis, certain discretionary governmental functions remain immune from tort liability. The Court discarded the general duty special duty test in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967) and adopted the operational/planning analysis in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968) in identifying those discretionary governmental acts which remain immune. Under this analysis operational level decisions and actions are not immune while decisions at the planning level remain immune.

We conclude that the trial court here erred in dismissing both complaints with prejudice because in each complaint allegations are present to the effect that Palm Beach County was involved in the actual operation of the jail. It is alleged that both the Sheriff and the County engaged in actual joint operation of the facilities. We conclude that the trial court erred because, if the County was involved in the actual operation of the jail, this conduct is not protected by the sovereign immunity doctrine enunciated in Commercial Carrier Corporation v. Indian River County, supra. This conduct would be an...