Torts-THE DOCTRINE OF SOVEREIGN IMMUNITY IS ALIVE AND WEL

Stoutamire, S. Stockwell

English

Florida State University College of Law

Florida State University Law ReviewVolume 8 | Issue 2 Article 11Spring 1980Commercial Carrier Corp. v. Indian River County,371 So. 2d 1010 (Fla. 1979)S. Stockwell StoutamireFollow this and additional works at: http://ir.law.fsu.edu/lrPart of the Torts CommonsThis Note is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University LawReview by an authorized editor of Scholarship Repository. For more information, please contact bkaplan@law.fsu.edu.Recommended CitationS. S. Stoutamire, Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979), 8 Fla. St. U. L. Rev. 377 (2017) .http://ir.law.fsu.edu/lr/vol8/iss2/11Torts-THE DOCTRINE OF SOVEREIGN IMMUNITY Is ALIVE ANDWELL- Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979).The doctrine of sovereign immunity, invoked as a complete de-fense in tort actions against the state and its subdivisions, wasbroadly waived by the Florida Legislature in 1975.1 Although thewaiver of sovereign immunity statute appears to render the stateat least partially liable for negligent action,2 the Florida SupremeCourt has recently held that governmental actions which are dis-cretionary, i.e., carried out at the "planning" rather than the "op-erational" level of government, are not subject to liability in tort.3In Commercial Carrier Corp. v. Indian River County,4 the ThirdDistrict Court of Appeal was presented with a wrongful death ac-tion naming Indian River County and the Florida Department ofTransportation (DOT) as third party defendants. The third partycomplaint of Commercial Carrier and its liability insurer allegedthat the county and DOT were negligent in failing to maintainstop signals at the fatal intersection.' The court relied on prior de-cisions to hold that such negligent maintenance on the part of agovernmental authority is not actionable.6In Cheney v. Dade County,7 the plaintiffs alleged negligence on1. "In accordance with § 13, Art. X, State Constitution, the state, for itself and for itsagencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only tothe extent specified in this act .... " Ch. 73-313, § 1, 1973 Fla. Laws 711 (effective Jan. 1,1975) (codified at FLA. STAT. § 768.28(1) (1979)).2. The statute provides:The state and its agencies and subdivisions shall be liable for tort claims in thesame manner and to the same extent as a private individual under like circum-stances, but liability shall not include punitive damages or interest for the periodprior to judgment, Neither the state nor its agencies or subdivisions shall be liableto pay a claim or a judgment by any one person which exceeds the sum of $50,000or any claim or judgment, or portions thereof, which, when totaled with all otherclaims or judgments paid by the state or its agencies or subdivisions arising out ofthe same incident or occurrence, exceeds the sum of $100,000. However, a judg-ment or judgments may be claimed and rendered in excess of these amounts andmay be settled and paid pursuant to this act up to $50,000 or $100,000, as the casemay be, and that portion of the judgment that exceeds these amounts may bereported to the Legislature, but may be paid in part or in whole only by furtheract of the Legislature.FLA. STAT. § 768.28(5) (1979).3. Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022 (Fla. 1979).4. 342 So. 2d 1047 (Fla. 3d Dist. Ct. App. 1977), rev'd and remanded, 371 So. 2d 1010(Fla. 1979).5. 342 So. 2d at 1048.6. Id. at 1049.7. 353 So. 2d 623, 624 (Fla. 3d Dist. Ct. App. 1977), rev'd and remanded, 371 So. 2d 1010(Fla. 1979).378 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 8:377the part of Dade County for failure to properly maintain a trafficlight. The third district again found no liability, holding that sincethe duty was one owed to the public and not to a particular indi-vidual, governmental immunity was not waived."On writ of certiorari to the Florida Supreme Court, CommercialCarrier and Cheney were consolidated.9 Respondents in both casesargued that the waiver of immunity in section 768.28, Florida Stat-utes'0 did not reach governmental acts such as negligent mainte-nance." Respondents also argued that because liability under thestatute was coextensive with private liability and since "privatepersons" did not govern, immunity was not waived for such purelygovernmental functions as road maintenance. Therefore, respon-dents asserted, the statute was merely a codification of the com-mon law theory of municipal sovereign immunity.' 2These two cases raise the issue of whether the differentiation be-tween governmental and proprietary functions remains useful inthe wake of section 768.28. In the past, sovereign immunity appliedto all state activity and extended to all state agencies and coun-ties."3 A waiver of immunity occurred only when the state agencypurchased liability insurance and then only up to the extent of pol-icy coverage and only for certain activities. 14 Municipalities, on theother hand, did not enjoy absolute immunity from tort liability.Their immunity was limited to those activities considered "govern-mental" as opposed to those considered "proprietary.' 5 Proprie-8. Id. at 626.9. 371 So. 2d at 1012.10. (1979).11. 371 So. 2d at 1013.12. Id. at 1014.13. See, e.g., Davis v. Watson, 318 So. 2d 169 (Fla. 4th Dist. Ct. App. 1975); Buck v.McLean, 115 So. 2d 764 (Fla. 1st Dist. Ct. App. 1959). In Davis, plaintiff alleged negligenceon the part of the Game and Fresh Water Fish Commission for a gunshot wound inflictedby an officer. The court held that the Commission had no power to waive its immunity tosuit. 318 So. 2d at 170. In Buck, suit was brought against the County Board of Public In-struction for negligently permitting a screen between a baseball field and a grandstand todeteriorate. The plaintiff had been struck in the eye when a foul ball penetrated the screen.115 So. 2d at 765. The court found the school board to be an agency of the state and thusabsolutely and unqualifiedly immune from suit. Id.14. Davis v. Watson, 318 So. 2d 169, 170 (Fla. 4th Dist. Ct. App. 1975). See FLA. STAT. §286.28(1) (1979), which authorizes political subdivisions to secure liability insurance.15. See Gordon v. City of West Palm Beach, 321 So. 2d 78 (Fla. 4th Dist. Ct. App. 1975).Suit was brought by the father of a motorcyclist killed in a collision at an intersection. Thecourt found the city to be immune from suit for failing to install and maintain traffic controldevices, which the court characterized as governmental functions, but liable for the proprie-tary function of designing, constructing, and maintaining the streets and for failure to warnof known hazardous conditions. Id. at 80. See also Woods v. City of Palatka, 63 So. 2d 63619801 CASE NOTEStary functions were those defined as promoting the public "com-fort, convenience, safety and happiness." 6 Governmental functionswere those which promoted the public "welfare."' 7A judicial attempt was made to discard the governmental-pro-prietary dichotomy and to impose liability for the nondiscretionarynegligent actions of municipalities,' 8 but another distinction soonappeared. In Modlin v. City of Miami Beach 9 the supreme courtreinstated municipal immunity for governmental functions to theextent that the duty owed was to the public generally. Only when aduty was owed to a particular individual or when its activity was"proprietary" was the municipality liable for tortious breach ofduty.In Commercial Carrier, the supreme court rejected the distinc-tion between governmental and proprietary functions.2 0 But ifthese familiar municipal distinctions were not applicable, did anygovernmental action remain immune from liability under section768.28? The court first looked to the Federal Tort Claims Act(FTCA), the language of which the Florida statute tracked.2 ' Thecourt adopted federal constructions of the FTCA insofar as theyrejected the governmental-proprietary distinction and the associ-ated "private persons do not govern" argument.2 2Petitioners argued that since the FTCA explicitly exempted dis-(Fla. 1953) (repairing defects in sidewalk is a proprietary rather than governmental func-tion); Kaufman v. City of Tallahassee, 94 So. 697 (Fla. 1922) (maintenance of fire truck is aproprietary function).16. City of Lakeland v. State, 197 So. 470, 472 (Fla. 1940).17. Id.18. Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957). The court stated:[T]he law is not static. The great body of our laws is the product of progressivethinking which attunes traditional concepts to the needs and demands of changingtimes. The modern city is in substantial measure a large business institution ...To continue to endow this type of organization with sovereign divinity appears tous to predicate the law of the Twentieth Century upon an Eighteenth Centuryanachronism. Judicial consistency loses its virtue when it is degraded by the viceof injustice.Id. at 133.19. 201 So. 2d 70, 75 (Fla. 1970).20. 371 So. 2d at 1016.21. Id. at 1016 n.9. The federal act provides: "[Tihe district courts ... shall have exclu-sive jurisdiction of civil actions on claims against the United States . . . caused by the negli-gent or wrongful act or omission of any employee of the Government . . . under circum-stances where the United States, if a private person, would be liable .... " 28 U.S.C. §1346(b) (1976). The act goes on to provide that, "The United States shall be liable . . . inthe same manner and to the same extent as a private individual under like circumstances... " Id. at § 2674.22. 371 So. 2d at 1016-17.380 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 8:377cretionary acts from the waiver of immunity and the Florida actdid not, the legislature intended liability to attach even to discre-tionary acts.2 3 The supreme court, however, was not willing to ab-rogate sovereign immunity entirely. The court analyzed the deci-sions of courts in other states which have waiver of sovereignimmunity statutes. The Florida Supreme Court found that otherstate courts had read limitations into such statutes, reserving im-munity for discretionary government activity.2In the face of a constitutional provision which grants power towaive immunity to the legislature, 2 and a concomitant legislativeenactment exercising that power, on what grounds can the judici-ary read a broad discretionary limitation into the statute? TheCommercial Carrier court did so on the basis of the doctrine ofseparation of powers. Constitutional theory provides the funda-mental rationale of Commercial Carrier: "[C]ertain functions ofcoordinate branches of government may not be subjected to scru-tiny by judge or jury as to the wisdom of their performance."26 Thecourt claimed to abstain from the temptation to attach semanticlabels, 27 but then proceeded "[in order to identify" these func-tions to invoke distinctions between "planning level" and "opera-tional level" functioning of government.2 8To determine what is a discretionary, "planning level" function,the court adopted the criteria articulated in Evangelical UnitedBrethren Church v. State, 9 a 1965 Washington case:(1) Does the challenged act, omission, or decision necessarilyinvolve a basic governmental policy, program, or objective? (2) Isthe questioned act, omission, or decision essential to the realiza-tion or accomplishment of that policy, program, or objective asopposed to one which would not change the course or direction ofthe policy, program, or objective? (3) Does the act, omission, ordecision require the exercise of basic policy evaluation, judgment,and expertise on the part of the governmental agency involved?(4) Does the governmental agency involved possess the requisiteconstitutional, statutory, or lawful authority and duty to do ormake the challenged act, omission, or decision? If these prelimi-23. 371 So. 2d at 1017.24. Id.25. FLA. CONST. art. X, § 13.26. 371 So. 2d at 1022.27. Id. at 1020.28. Id. at 1022.29. 407 P.2d 440 (Wash. 1965).CASE NOTESnary questions can be clearly and unequivocally answered in theaffirmative, then the challenged act, omission, or decision can,with a reasonable degree of assurance, be classified as a discre-tionary governmental process and nontortious, regardless of itsunwisdom. If, however, one or more of the questions call for orsuggest a negative answer, then further inquiry may well becomenecessary, depending upon the facts and circumstancesinvolved. 0Thus, in the wake of Commercial Carrier, courts construing sec-tion 768.28 must be able to identify policy decisions: those deci-sions which involve a conscious balancing of risks and advantages.Only in the performance of quasi-legislative functions does theseparation of powers doctrine prevent a court from judging thepropriety of a decision of a coordinate branch of government andfrom imposing liability for alleged tortious wrongs.Since Commercial Carrier, the Third District Court of Appeal inFerla v. Metropolitan Dade County," decided that the design of amedian strip was "operational" and that the setting of a speedlimit was "planning." What is distressing is the court's conclusionthat lane-width decisions were planning activities because massiveexpense would be required to alter the lane width.2 The notionthat an activity which might otherwise be characterized as opera-tional becomes a planning activity when it involves appropriationof funds was embraced only by the dissent in CommercialCarrier."3The ruling of the Second District Court of Appeal in Ellmer v.St. Petersburg,34 is not dissimilar. The court construed the test ofCommercial Carrier to mean that failure to warn of riot conditionswas a planning level activity and hence immune.3 " The court alsostated that it found "comfort" in a similar holding involving simi-lar facts in Iowa, and in other Florida decisions holding that a mu-nicipality is not liable for failure to supply police protection." InWeston v. State,37 the court sanctioned the defense of sovereign30. 371 So. 2d at 1019 (quoting Evangelical United Brethren Church v. State, 407 P.2d440, 445 (Wash. 1965)).31. 374 So. 2d 64, 66-67 (Fla. 3d Dist. Ct. App. 1979).32. Id. at 68.33. 371 So. 2d at 1024 (Overton, J., dissenting).34. 378 So. 2d 825 (Fla. 2d Dist. Ct. App. 1979).35. Id. at 827.36. Id.37. 373 So. 2d 701, 702 (Fla. 1st Dist. Ct. App. 1979).1980]382 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 8:377immunity when a state attorney was sued for malicious prosecu-tion. This court, unlike the Ferla and Ellmer courts, responded af-firmatively to each of the four inquiries of the Washington testadopted by Commercial Carrier.3 8 It found that the decision toseek an indictment involved the weighing of risks and advantagesand hence constituted a planning level activity.3 9The Commercial Carrier court held that the maintenance oftraffic signals and signs did not represent discretionary policymak-ing or planning activity and remanded the consolidated cases tothe district court with directions to remand to the trial court.40Due to the supreme court's interpretation of section 768.28 in theCommercial Carrier case, it is evident that the doctrine of sover-eign immunity is still alive in Florida, at least with regard to "dis-cretionary" governmental actions giving rise to tort claims.S. STOCKWELL STOUTAMIRE38. Id. at 703.39. Id.40. 371 So. 2d at 1022-23.

Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979)

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Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979)

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