Filing lawsuits against a governmental entity is different from filing lawsuits against an at-fault individual or business. Historically, under case law, the doctrine of sovereign immunity shielded governmental entities from liability in order to allow governance to proceed. Through various statutes and cases, governments can now be held liable for negligent acts. For governmental tort liability to exist, there must be “either an underlying common law or statutory duty of care with respect to the alleged negligent conduct.” (See Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985).
A recent Fifth District Court of Appeal decision, Jordan v. Nienhuis (Case # 5D16-1245), reviews what must occur for government tort liability under Florida statutes. In this wrongful death case, the personal representative filed a lawsuit against the Sheriff of a Florida county, alleging the 911 operator was negligent in responding to a call for medical help. The deceased man’s wife dialed for assistance after he experienced breathing difficulties. While the operator asked about the decedent’s condition, his health worsened, and he lost consciousness, ending up on the floor. His wife was told to “just leave him there” while waiting for assistance. EMS eventually arrived and administered CPR, but the man died from the incident.
The ultimate complaint in this lawsuit alleged the 911 operator misled the deceased person’s wife regarding the level of seriousness of his condition, which led her to believe there was no need to render aid to her husband, resulting in his death. The complaint also alleged that the operator was negligent in providing the instructions given to the wife on how to care for her husband, not exploring alternative options for responding to the emergency, and placing her husband in a zone of danger. The sheriff’s office moved to dismiss, claiming the estate was not owed a duty of care. The trial court agreed with the sheriff’s office’s claim that the estate failed to state a cause of action and dismissed the case with prejudice. The estate appealed.
In its review, the District Court of Appeal looked at the four categories of governmental tort liabilities, which are divided by governmental function. Category I includes legislative, permitting, licensing, and executive officer functions. Category II deals with public safety and law enforcement. Category III involves capital improvement and property control operations. Category IV concerns the provision of professional, educational, and general services for the health and welfare of citizens.
The court determined that the underlying event forming the basis of the lawsuit fell under Category II. The Court cited Everton v. Willard, 468 So. 2d 936, 938 (Fla. 1985), pointing out that there is no underlying common law duty of care unless there is a special relationship formed between the tort victim and the governmental actor. The appellate court agreed that the estate did not show the necessary elements to establish a special relationship under case law. The court differentiated the wife’s phone interaction with the 911 operator from a prior Florida lawsuit in which an undertaker formed a special relationship by taking control of the situation. (See Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)). An undertaker entered the tort victim’s home, provided an assessment of her safety, and assured third parties that the woman was asleep and that there was no need for an ambulance. The woman ultimately died. The District Court of Appeal stated that unlike the defendant in Dean, the 911 operator in this case did not increase the risk of harm to the decedent or control the situation. The dismissal was affirmed.
The South Florida wrongful death attorneys at Donaldson & Weston are here to help you with your wrongful death case. Even if the at-fault party is a government actor, civil law provides potential avenues of legal relief. Call our office today for a free, confidential consultation at 772-266-5555 or 561-299-3999.
More Blog Posts:
Florida District Court of Appeal Reviews Drunk Driver Motorcycle Accident Case, South Florida Injury Lawyer Blog, August 4, 2016
Wrongful Death Appeal Discusses Statutory Requirements for Expert Witnesses in Florida, South Florida Injury Lawyer Blog, July 13, 2016