Florida's public duty doctrine.

JurisdictionUnited States
Date01 May 2006
AuthorDrake, Jr., William N.

In June 2004, the Florida Supreme Court issued a long-awaited (1) and significant opinion in the area of governmental tort law when it decided Pollock v. Florida Highway Patrol, 882 So. 2d 928 (Fla. 2004). Factually, Pollock involved a wrongful death action arising from a September 5, 1993, collision of a vehicle in which the plaintiffs' daughters were riding, and a tractor-trailer stalled on the Palmetto Expressway. About an hour before the accident, a motorist passing the location had observed the stalled truck and called 911 to report the traffic hazard to the Florida Department of Highway Patrol dispatcher. However, the dispatcher failed to enter the call in the computer for assignment to an FHP unit. As a result, no FHP trooper was dispatched to the scene as required by FHP policy.

Plaintiffs, the parents of the two women who were killed in the accident, alleged, inter alia, that the FHP negligently failed to maintain the highway in a reasonably safe condition, warn of known dangers on the roadway, and correct dangerous conditions. Additionally, plaintiffs alleged FHP negligently failed to comply with its own policies and procedures by not dispatching an officer to the scene of the stalled tractor-trailer. The case was tried before a jury, who awarded the parents over $16 million; (2) however, on appeal, the district court reversed the judgment, finding that "the trial court erred in failing to direct a verdict in [FHP's] favor where there was nothing to indicate that FHP's actions or inactions were operational in nature and where FHP otherwise owed no special duty to the decedents, as a matter of law, so as to impose governmental tort liability." (3) In addition to reversing the lower court, the district court certified conflict to the Florida Supreme Court.

The Supreme Court accepted jurisdiction based upon conflict between the subject Third District Court of Appeal opinion and two earlier opinions of the Second DCA. In a per curiam opinion, the Supreme Court approved, but clarified the decision of the Third DCA, resting its holding not upon the FHP's planning-level immunity, as the DCA analysis suggested it had, but upon Florida's public duty doctrine, which is only vaguely identified in the Supreme Court opinion as "an august body of law." This article examines the Supreme Court's opinion, its analysis, rationale, and implications.

Identity Crisis

Without mentioning the public duty doctrine by name, the majority Supreme Court opinion in Pollock rests firmly upon the doctrine, the foundational principle of which was enunciated in prior opinions in Everton v. Willard, 468 So. 2d 936 (Fla. 1985), and Vann v. Department of Corrections, 662 So. 2d 339, 340 (Fla. 1995), that, "[a] governmental duty to protect its citizens is a general duty to the public as a whole, and where there is only a general duty to protect the public, there is no duty of care to an individual citizen which may result in liability."

The last application of the public duty doctrine by the Supreme Court before Pollock was in Vann, answering in the negative the certified question, "Whether the State of Florida, Department of Corrections, may be held Liable as a Result of the Criminal Acts of an Escaped Prisoner."

Another hint at the identity of the august body of law underpinning Pollock is the Florida Supreme Court's citation to Gerald T. Wetherington and Donald Pollack's Tort Suits Against Governmental Entities in Florida "for a thorough overview of the historical development of the sovereign immunity doctrine in Florida." (24) That law review article contains various references to Florida's adoption of the public duty doctrine in Trianon Park Condominium Association v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). In discussing the scope of the waiver of governmental immunity from tort liability under F.S. [section] 768.28 (1975), the authors of the article wrote, "Florida courts have recognized two exceptions [to the waiver]. First, the discretionary function exception is based on the separation of powers doctrine. Second, the public duty doctrine exception primarily protects the government against overburdensome tort liability, as well as furthering separation of powers interest." (5)

The infrequency of the public duty doctrine's application along with its inauspicious lineage, as described below, may account in part for its continued anonymity in the Supreme Court, but prior to Pollock those qualities also may have contributed to the conclusion by some judges that the doctrine was defunct in this state. (6)

A Tainted Ancestry

To better understand the majority opinion in Pollock and the Supreme Court's reluctance to expressly embrace the public duty doctrine clearly and by name, it may be useful to know something about the evolution of municipal immunity law generally in Florida and the lineage of the doctrine in particular. With its decision in Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957), the Florida Supreme Court gained national recognition as a trendsetter in the movement to reduce municipal immunity from tort liability. (7) This movement regarded such governmental protections from liability as an undesirable vestige of English sovereignty, creating an inequality that had no place in a society founded upon the notion that the people, not a monarch, are paramount. (8) Hargrove receded from prior decisions holding municipal corporations immune from liability for the torts of police officers. The decision permitted a widow to recover against the town for the death of her husband caused by a police officer's negligence in allowing the decedent, locked in the town jail, to suffocate from smoke inhalation. The Supreme Court in Hargrove regarded its ruling as consistent with the idea that the "modern city is in substantial measure a large business institution," thus, undeserving of sovereign immunity. (9)

But if Hargrove reflected a progressive egalitarianism in the evolution of local governmental tort law, then the decision of the court in Modlin v. City of Miami Beach, 201 So. 2d 70 (Fla. 1967), must have represented an embarrassing step backward to some. In Modlin, the Supreme Court recognized "a doctrine of respectable lineage and compelling logic that holds that ... [the] duty [necessary to support a negligence action] must be something more than the duty that a public officer owes to the public generally." (10) Adhering to that doctrine, the court held that the city was not liable based upon respondeat superior for a building inspector's alleged negligence in failing to inspect a store mezzanine, which fell on and killed a store patron, because the inspector owed no special duty to the patron other than the duty owed to the public generally.

The Modlin ruling incensed the proponents of expanding municipal liability, drawing a chorus of criticism, which eventually led the Supreme Court in Commercial Carrier v. Indian River County, 371 So. 2d 1010, 1016 (Fla. 1979), to "conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28 [Florida Statutes (1975), waiving governmental immunity in tort]." The court in Commercial Carrier reasoned as follows:

First, we believe it to...

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