Governmental tort liability in Florida; a tangled web.

• Author: Drake, Jr., William N.

In Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010 (1979), the Florida Supreme Court sought to define the scope of the waiver of governmental tort immunity contemplated by F.S. [section] 768.28, but that decision failed to provide a clear framework within which to analyze and identify governmental conduct that remains entitled to protection from tort liability. Driven largely by competing ideologies on the court, the body of government tort law that has developed since Commercial Carrier has become a tangled web of incomprehensible and inconsistent principles, exceptions, and exceptions to the exceptions.

This article will examine the reasons governmental immunity law in Florida has become so confused and will compare and contrast Florida law to that in the jurisdictions from which Florida derived its implied discretionary-function immunity and to federal law construing the Federal Tort Claims Act (FTCA), the model for the Florida waiver of immunity statute. The article will trace the development of governmental immunity from the Commercial Carrier decision to the present and demonstrate that whether Florida government enjoys legal protection from tort liability has been largely dependent upon which ideology has dominated the Florida Supreme Court. Lastly, conclusions will be drawn about what should be done to clarify the status of governmental protection from tort liability in Florida.

Common Law Government Immunity

The state and its subdivisions enjoyed absolute immunity from tort liability prior to the enactment of the waiver of immunity statute in 1973. (1) However, municipalities had only limited tort immunities or exceptions to liability that were the subject of a well-developed body of law at the time [section] 768.28 went into effect. (2) The courts developed an analysis distinguishing between "governmental" and "proprietary" functions of municipal government, applying tort immunity only as to the former unless there was some special relationship between the government employee or agent and the injured party. (3) This became known as the "Modlin doctrine."

Waiver of Government Immunity and the Commercial Carrier Decision

Among the interesting ironies of Commercial Carrier is that several counties and the state, rather than municipalities, were claiming protection from liability based on the argument that they were entitled to the immunity applied to municipal corporations involved in governmental functions prior to the enactment of [section] 768.28. (4) As defendants in the trial court, the governments successfully moved to dismiss the negligence claims against them for failing to maintain certain traffic control measures allegedly resulting in traffic accidents. (5) The motions argued that the governments were entitled to immunity under the Modlin doctrine because that immunity survived the passage of the waiver statute.

In rejecting the argument, the Florida Supreme Court found that the Modlin doctrine did not survive the enactment of [section] 768.28 because "[p]redicating liability upon the `governmental-proprietary' and `special duty-general duty' analyses has drawn severe criticism from numerous courts and commentators. Consequently, we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through the enactment of section 768.28, Florida Statutes (1975)." (6)

However, the court announced that despite the absence of an express discretionary-function exception as in the FTCA, separation of powers demanded that "certain areas of governmental conduct remain immune from scrutiny by judge or jury as to the wisdom of that conduct." (7) The court found examples of such implied discretionary-function immunity predicated upon the concept of separation of powers in New York and Washington state. Washington law provided a "preliminary test" which the Commercial Carrier court "commend[ed]" to use by the lower courts in Florida seeking to identify discretionary functions of government. (8)

The Commercial Carrier court also adopted the analysis of a California case, Johnson v. State, 447 P.2d 352 (1968), which involved being "sensitive" to whether the act, omission or decision involved discretion, but eschewing consideration of the actual meaning ("semantics") or definition of the word "discretion." (9) Thus, the Commercial Carrier court began its analysis by asking itself a series of questions about the challenged governmental "act, omission or decision" while being "sensitive" to whether the act, omission or decision involved "discretion." (10) This unusual approach was to be undertaken on a "case-by-case basis" with the courts analyzing whether the peculiar facts before them called for application of tort immunity in order to preserve the notion of separation of powers. (11)

Justice Overton, joined by Justice Boyd, dissented, complaining that the express language of [section] 768.28 was contrary to the majority opinion because the statute provides that the government is to be liable "under circumstances in which the state or such agency or subdivision, if a private person, would be liable" and that private persons do not engage in uniquely governmental activities such as traffic signal and sign maintenance--the activity challenged in Commercial Carrier. (12) He also criticized the majority's reliance on seemingly conflicting federal opinions as authority for its analysis distinguishing between operational and planning-level functions, the latter of which were immune. (13)

A line of federal cases not considered in Commercial Carrier support the conclusion that the language of the waiver statute may insulate the government from liability, but not because the conduct is uniquely governmental. (14) In the federal cases, the language of the FTCA "in the same manner and to the same extent as a private individual under like circumstances" is construed to impose a requirement that for the claim to be cognizable "a private person would be responsible for similar negligence under the laws of the state where the acts occurred." (15) If there would be no such responsibility of a private person for similar negligence, the government could not be held liable. (16) Thus, the initial issue for the federal courts confronted with a tort claim against the federal government is not whether the conduct was "uniquely governmental," but whether there is a cause of action against the government "comparable" to a cause of action against a private citizen recognized in the jurisdiction where the tort occurred, i.e., whether there is a "private analog" under state law. (17) This inquiry, which is crucial to cognizability of a claim under the FTCA, has been ignored in Florida. However, the "private analog" analysis has been applied by at least one other state supreme court with statutory language, which like Florida's statute, is modeled after the FTCA. (18)

The nebulous new implied discretionary-function immunity, which the majority in Commercial Carrier admitted would be difficult to apply, began to quickly transmogrify itself to the particular ideological bent of a Florida Supreme Court, which changed with successive, shifting new majorities. Within two years of the Commercial Carrier decision, the author of that opinion would find himself dissenting and criticizing governmental tort immunity as "an enigma shrouded in mystery" in Cauley v. City of Jacksonville, 403 So. 2d 379, 387 (Fla. 1981). The transformation of the law of governmental immunity has continued to this day as the Florida Supreme Court has changed in composition, modified prior holdings, and spun ever more fine distinctions and exceptions into the tangled web of this law.

Evolution of Government Immunity After Commercial Carrier--Spinning the Web

With the departure of Justice Hatchett from the Florida Supreme Court and the addition of Justice MacDonald, a new majority emerged and ideological division evinced itself in Cauley v. City of Jacksonville, 403 So. 2d 379 (Fla. 1981), in which Justice Overton authored the opinion upholding the cap on government tort liability under [section] 768.28(5) against constitutional challenge and applying it to a judgment against the city. Justice Sundberg, who had led the majority in the Commercial Carrier opinion, became a dissenter, joined by Justice Atkins. In Cauley they argued that the same waiver statute, which was determined to abrogate the municipal immunity invoked by the county and state in Commercial Carrier, did not apply to municipalities at all. (19)

The year after Cauley, in a group of immunity cases which have become known as the "Neilson trilogy," authored by Justice Overton, the court held that, in general, government would not be liable for defects inherent in the overall design of a public improvement, such as a public road system, unless the entity, by the design, created a known dangerous condition which was not apparent to one who may be injured. (20) Despite the exception for "known dangerous conditions," the decisions could be generally regarded as favorable to government. (21)

The majority opinion in Neilson relegated the "preliminary test" from Commercial Carrier to footnote status, and the "sensitivity" analysis of Johnson, with its eschewal of semantics, was not mentioned. Justice Sundberg, again dissenting, lamented: "[T]he irreconcilable results among the several district courts of appeal are not harmonized, but rather the confusion is compounded. The enigma is now shrouded in mystery." (22)

The majority in Neilson continued to represent the prevailing view in the early 1980s in a series of cases which generally found governmental immunity while focusing on tort concepts such as open and obvious dangers and duties. (23) In Harrison v. Escambia County School Board, 434 So.2d 316 n.5 (Fla. 1983), although discussing governmental discretionary-function immunity for the determination of where to locate school bus...