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July 2, 2012


This summary will discuss the evolution of F.S. § 768.28, which concerns sovereign immunity for tort damage caused by the negligent or wrongful act or omission of an employee of an agency or subdivision while acting within the scope of the employee's office or employment.

Prior to the enactment of F.S. § 768.28, the Florida Supreme Court decided issues of governmental liability in two key cases: Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla. 1967) and Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957). Modlin provided a test which was to determine whether a duty owed to the plaintiff was a "special" duty or a "general" duty owed to the public as a whole. This doctrine was criticized as impractical to apply.

In Hargrove, the Supreme Court held that a municipal corporation may be held liable for the torts of a police officer under the doctrine of respondeat superior. Later, the Supreme Court refined its rulings in two more cases: Commercial Carrier v. Indian River County, 371 So. 2d 1010, 1022 (Fla. 1979) and Trianon Park Condominium Ass'n v. Hialeah, 468 So. 2d 912 (Fla. 1985). In Commercial Carrier, the Supreme Court held that policy-making, planning or judgmental governmental functions remain immune from tort liability. The Supreme Court did not intend to waive immunity for those discretionary, policy or planning-level decisions, which are inherent in the act of governing.

The Florida Supreme Court in Trianon Park reiterated the general rule that there is no duty to prevent the misconduct of a third person. Further, the Supreme Court held that legislative enactments for the protection of the community as a whole create no governmental duty or liability. To this end, the Florida Supreme Court created five basic principles, which combined the rules in Modlin and Commercial Carrier.

First, in order to find governmental tort liability, there must be either an underlying common law or statutory duty with respect the allegedly negligent conduct. Second, the enactment of F.S. § 768.28 did not create a new duty of care for governmental entities. Third, there has never been a common law duty for either a private person or a governmental entity to enforce the law for the benefit of any particular individual. Fourth, the judiciary must not interfere with their discretionary power given to the legislative and executive branches of government. Finally, those discretionary functions of government, which are inherent in governing, are immune from suit.

In Trianon Park the Supreme Court identified four categories of governmental functions to provide courts with guidance as to which governmental activities will give rise to a duty of care. These functions are as follows:

    1. Legislative, permitting, licensing and executive officer functions

    2. Enforcement of the law and protection of public society

    3. Capital improvements in property control operations and

    4. Providing professional, educational and general services for the health and welfare of the citizens.

The next issue to arise in interpretation of F.S. § 768.28, is in the case of McGhee v. Volusia County, 679 So. 2d 729, 733 (Fla. 1996). The question arose as to whether a governmental entity is liable for the acts of its police officer whose intentional acts are committed beyond the scope of his official duties.

In McGhee, the plaintiff alleged that during booking procedures, a deputy grabbed him by the throat and kicked him. The court held that even though a deputy may have intentionally abused his office by grabbing the throat of and kicking the plaintiff, the Sherriff is not automatically shielded from liability. The jury must decide whether the deputy's intentional conduct was in bad faith, with malicious purpose, or in a manner exhibiting wonton or willful disregard of human rights, safety or property.

After McGhee, the next question to arise is whether a governmental entity can be liable for the common law tort of negligent supervision and training. Employers' negligent supervision or training of an employee has long been recognized as a basis for tort liability in Florida; however, the courts have not uniformly held whether sovereign immunity has been waived for liability for governmental negligence in the supervision and training of employees.

Some cases suggest that governmental liability for negligent supervision and training is barred because such activities amount to enforcement of a police power function for which no common law duty has ever existed. Other courts focus on the discretionary/operational nature of the alleged wrongful act in order to determine liability. The outcome is split among the courts with some finding activities of supervision and training of employees amounting to operational functions for its sovereign immunity has been waived while others hold that the employment of police officers is a discretionary planning level function immune from judicial scrutiny.

In Maybin v. Thompson, 679 So. 2d 729 (Fla. 2d DCA 1987) plaintiff brought suit against a police officer in his individual capacity as well as against the City of Ft. Myers as a result of a physical altercation between the plaintiff and the officer. The 2d DCA affirmed summary judgment in favor of the city holding that the employment of the police officer is considered to be an immune policy making activity.

In 2009, the U.S. District Court for the Southern District of Florida took the same approach in Jackson v. Montesino (2009 WL 1515511 S.D. Fla. 2009), where summary judgment was granted in favor of a municipality because the decision of a municipality to hire, fire or retain a police officer involves exercise of governmental discretion at the highest level and is precisely the area into which, under the separation of powers doctrines, courts must not intervene.

In contrast, in Dickinson v. Gonzalez, 839 So. 2d 709 (Fla. 3d DCA 2003), the court showed no deference to the case law holding that sovereign is a bar to a claim for negligent supervision and retention of law enforcement officers. Without analysis, the 3d DCA held that there is no sovereign immunity barrier to making a claim against a governmental agency for negligent retention or supervision.

The only area the court seemed to be in universal agreement is the training and retention of schoolteachers where sovereign immunity is not a defense. The distinction is that training and retention of police officers relates to the enforcement of laws and protection of public safety, which requires the type of discretionary decision making for which sovereign immunity was designed.

Florida's federal courts have taken a more uniform approach to the issue of negligent supervision in a law enforcement setting by determining that a common law duty exists for negligent supervision and training. In Lewis v. St. Petersburg, 260 F. 3d 1260, 1266 (11th Cir. 2001), the issue of a city's liability for negligent training of a law enforcement officer was before the court. The 11th Circuit Court of Appeals held that pursuant to Florida law, an employer is liable in tort for reasonably foreseeable damages resulting from the negligent training of its employees. The 11th circuit determined it was error for the trial court to dismiss plaintiff's negligent supervision claim on the logic that the city's duty was owed to the public as a whole.

In conclusion, sovereign immunity is not a bar to a claim for negligent supervision in the educational context, but can and should be a bar in the context of the hiring, retention and training in the supervision of police officers. If plaintiff alleges that a police officer falsely arrested her, only the municipality would be liable to plaintiff for damages pursuant to F.S. § 768.28 and this would be true regardless of whether the officer was negligently trained and supervised because the officer's underlying tortious conduct would serve as the basis of the municipality's liability. If the officer had probable cause to arrest the plaintiff, the municipality could not be liable even if the officers were negligently trained and supervised.

Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com



*This is a summary of an article that appeared in the Winter 2012 edition of Trial Advocate Quarterly