Everton v. Willard

This cause is before us on petition to review a decision of the Second District Court of Appeal reported as Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983). The issue concerns a law enforcement officer’s discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability. The district court in the instant case held that an officer’s decision under this discretionary authority is covered by basic governmental sovereign immunity that precludes liability for such a decision. We find direct conflict with the decision of the Fifth District Court of Appeal in Huhn v. Dixie Insurance Co., 453 So.2d 70 (Fla. 5th DCA 1984). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we approve the decision of the Second District Court of Appeal in the instant case, disapprove the decision in Huhn, and hold that the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit, regardless of whether the decision is made by the officer on the street, by his sergeant, lieutenant or captain, or by the sheriff or chief of police.

The tragic circumstances of this case are as follows. A Pinellas County sheriff’s deputy stopped the respondent, Willard, for a traffic violation. The deputy recognized, from his own observations and Willard’s admission, that Willard had been drinking to some extent. The deputy did not, however, charge Willard with an intoxicated-driving offense. Rather, he issued Willard a traffic citation for making an improper U-turn and permitted him to drive on. Approximately fifteen minutes later, Willard was involved in a collision in which one person was killed and another was severely injured. The petitioners are the surviving crash victim and the father of the person killed. They filed suit against Willard, as well as the sheriff’s deputy, the Pinellas County Sheriff’s Department, and Pinellas County. The complaint alleged that the sheriff’s deputy had negligently violated a duty to the petitioners by allowing Willard to drive subsequent to issuing him the traffic citation and that the violation of this duty resulted in the accident that caused petitioners’ injuries.

The trial court dismissed the complaint for failure to state a cause of action against the deputy, the sheriff’s office, and Pinellas County. In so doing, the court held that a law enforcement officer must have the discretion to enforce the law without being subject to tort liability for injuries to innocent third parties.

In affirming, the district court determined that the deputy’s decision not to arrest Willard prior to the accident was operational in nature under the test of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), for which liability ordinarily would attach, but found that “merely because an activity is ‘operational,’ it should not necessarily be removed from the ‘category of governmental activity which involves broad policy or planning decisions.’ ” 426 So.2d at 1001 (quoting Commercial Carrier, 371 So.2d at 1022). The court concluded that

the proper planning and implementation of a viable system of law enforcement for any governmental unit must necessarily include the discretion of the officer on the scene to arrest or not arrest as his judgment at the time dictates. When that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion.

Id. at 1003-04.

In direct conflict with this holding is the Huhn decision of the Fifth District Court of Appeal, in which the court determined that a city could be held liable in tort for a police officer’s failure to arrest and detain an intoxicated driver when that driver subsequently injures a third party. The Huhn court held that the arrest decision did not involve the exercise of a discretionary governmental function that is immune from tort liability and found the officer and the governmental entity that employed him liable for this conduct.

Our decision in Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985), which explained that governmental entities are immune when making the basic decision of how to enforce the laws, controls the resolution of this cause. In Trianon we stated:

How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials

Id., at 919.

It is important to recognize that, although the factual situations in this and the Huhn case concern the failure to arrest intoxicated drivers, the basic principle involved concerns the liability of all governmental bodies and their taxpayers for the negligent failure of their law enforcement officers to protect their citizens from every type of criminal offense. There has never been a common law duty of care owed to an individual with respect to the discretionary judgmental power granted a police officer to make an arrest and to enforce the law. This discretionary power is considered basic to the police power function of governmental entities and is recognized as critical to a law enforcement officer’s ability to carry out his duties. See ABA Standards for Criminal Justice, Standard 1-4.1 (2d ed. 1980); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 103-06 (1967). We recognize that, if a special relationship exists between an individual and a governmental entity, there could be a duty of care owed to the individual. This relationship is illustrated by the situation in which the police accept the responsibility to protect a particular person who has assisted them in the arrest or prosecution of criminal defendants and the individual is in danger due to that assistance. In such a case, a special duty to use reasonable care in the protection of the individual may arise. See, e.g., Schuster v. City of New York, 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265 (1958).

A law enforcement officer’s duty to protect the citizens is a general duty owed to the public as a whole. The victim of a criminal offense, which might have been prevented through reasonable law enforcement action, does not establish a common law duty of care to the individual citizen and resulting tort liability, absent a special duty to the victim. This majority view was expressed by the United States Supreme Court in its early decision in South v. Maryland, 59 U.S. (18 How.) 396, 15 L.Ed. 433 (1855). A substantial majority of the jurisdictions in this country that have addressed this issue follow this view. See, e.g., Commercial Carrier; Trautman v. City of Stamford, 32 Conn.Supp. 258, 350 A.2d 782 (1975); Crouch v. Hall, 406 N.E.2d 303 (Ind.App.1980); Commercial Union Insurance Co. v. City of Wichita, 217 Kan. 44, 536 P.2d 54 (1975); Zavala v. Zinser, 123 Mich.App. 352, 333 N.W.2d 278 (1983); Cairl v. State, 323 N.W.2d 20 (Minn.1982); Maynard v. City of Madison, 101 Wis.2d 273, 304 N.W.2d 163 (1981). We recognize that two jurisdictions have expressed a contrary view. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Irwin v. Town of Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). In our opinion, there is no distinction between the immunity afforded the police officer in making a determination of whether to arrest an individual for an offense and the discretionary decision of the prosecutor of whether to prosecute an individual or the judge’s decision of whether to release an individual on bail or to place him on probation. All of these decisions are basic discretionary, judgmental decisions that are inherent in enforcing the laws of the state. They are clearly not ministerial acts as contemplated by the Huhn decision or the dissents.

Our decision in this case is consistent with our holding in Wong v. City of Miami, 237 So.2d 132 (Fla.1970), in which we held that a governmental entity could not be held liable for damage caused during a riot, regardless of the fact that the city had removed police officers dispatched to guard against the damage. In that case we stated that the determination of strategy and tactics for the deployment of police powers was inherent in the right to exercise those powers. Id. at 134. We concluded by noting that “sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence.” Id. We reaffirmed that principle in our decision in Commercial Carrier. 371 So.2d at 1019-20.

We note as we did in Trianon that this is a narrow issue relating to the discretionary judgmental decision of making an arrest under the police power of a governmental entity. It does not have the broad ramifications attributed to it by the dissents, nor does it recede from Commercial Carrier.

In conclusion, if a governmental entity is going to be held liable for the negligent discretionary, judgmental decisions made by its police officers in enforcing the law, this means of accountability by tort liability should be imposed by the elected representatives in the legislative branch who may create this new duty of care and place this fiscal responsibility on the governmental entity and its taxpayers, rather than having the judiciary establish this new duty by judicial fiat.

Accordingly, we approve the decision of the Second District Court of Appeal in the instant case and disapprove the Fifth District Court of Appeal decision in Huhn.

It is so ordered.

BOYD, C.J., and ALDERMAN and MCDONALD, JJ., concur.

EHRLICH, J., dissents with an opinion.

SHAW, J., dissents with an opinion.