Phyllis Jayne and Sherri Baxter, personal representatives for the estate of Sandra Graves v. Beef O'Brady's of DeFuniak Springs, LLC, and City of DeFuniak Springs ( 2022 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-623
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PHYLLIS JAYNE and SHERRI
BAXTER, personal
representatives for the estate of
Sandra Graves,
Appellants,
v.
BEEF O’BRADY’S OF DEFUNIAK
SPRINGS, LLC, and CITY OF
DEFUNIAK SPRINGS,
Appellees.
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On appeal from the Circuit Court for Walton County.
Jeffrey E. Lewis, Judge.
September 14, 2022
PER CURIAM.
AFFIRMED.
B.L. THOMAS and NORDBY, JJ., concur; MAKAR, J., dissents with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., dissenting.
This case involves claims of negligence and wrongful death
against the City of DeFuniak Springs (City) arising from the death
of Sandra Graves, who was murdered by Stephen Taylor at her
home; both Graves and Taylor had worked at a restaurant, Beef
O’Brady’s, where Taylor was alleged to have been violent against
women, including having an explosive temper (the restaurant is
not a part of this appeal).
The theory of tort recovery by Graves’s estate is that the City,
through its police department, made specific assurances to the
victim, Graves, that it would escort her home from her workplace,
do security checks at her home, and issue a trespass warning
against Taylor, none of which was performed, resulting in Taylor’s
murder of Graves at her home after returning from work
unescorted. The trial judge dismissed the case with prejudice,
finding the allegations failed to establish a duty on the City’s
behalf as to Graves, leading to this appeal.
The estate argues that it pled the elements of a “well
developed” and “entrenched” common tort claim against the city
under the so-called “undertaker’s doctrine.” Wallace v. Dean, 3 So.
3d 1035, 1051 (Fla. 2009) (“[T]he undertaker’s doctrine is a well-
developed, entrenched aspect of Florida tort law.”). The doctrine
regards the potential tort liability of persons or entities that agree
to assume or accept (i.e., undertake) a duty to provide services for
the protection of another, but fail to exercise reasonable care in
doing so. Our supreme court specified the standard for liability in
such cases:
One who undertakes, gratuitously or for
consideration, to render services to another which he
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should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third
person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the other or
the third person upon the undertaking.
Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003)
(quoting Restatement (Second) of Torts § 324A (1965)) (emphases
added). The italics highlight the three ways the doctrine may
apply.
Here, the factual allegations, which are accepted as true in
evaluating a motion to dismiss, are as follows:
On June 14, 2017, Graves filed for a trespass
warning against Taylor with the City, learning of Taylor’s
criminal history. Four days later, the manager of the
restaurant called the City police department and told
them that Graves was in fear for her life from co-
employee Taylor. City police came to the restaurant and
escorted Graves home, assuring her that they would
continue to follow her home, that security checks would
be performed, and that a trespass would be issued.
Graves relied on the representations and thereafter did
not seek the help from others who would have been
available to assist her based on that reliance.
On June 21, 2017, at 10:30 p.m., City officer Jodie
Feliccia sent an e-mail to the entire police department
directing City police to perform security checks at
Graves’s address for the next two (2) weeks regarding a
“13P” (suspicious person) identified as Taylor, and to
issue a trespass warning if any contact was made with
Taylor. A few days later, just before noon on July 25,
2017, City police made contact with Taylor at a Burger
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King but failed to issue a trespass notice. At that time,
City police knew that Taylor was on probation, had a
history of violence towards women, was sending violent
and sexual messages to a former paramour, and was a
“13P” as to Graves, yet they failed the direct command (in
the office-wide email) to issue the trespass warning on
Taylor.
Graves was murdered by Taylor later that afternoon.
After she finished her work shift, Graves went home,
unescorted. Had City police escorted her home as they
had told her and were obligated to do, they would have
discovered Taylor lying in wait to kill her inside her
home.
These allegations show (1) express assurances to Graves (to escort
her home, to perform security checks at her home, and to issue a
trespass notice against Taylor); (2) justifiable reliance by Graves
on the promises of assistance (she did not seek the help from others
who would have been available to assist her otherwise); and (3)
harm suffered because of the reliance upon the express promise or
assurance of assistance (her death). These allegations, which may
be proven inaccurate at the motion for summary judgment stage,
are assumed true for de novo review in this appeal and meet the
requirements of the undertaker doctrine. See Clay Electric, supra;
Wallace, supra. Dismissal of the estate’s claim was thereby error.
A number of cases support the legal theory alleged and
characterize the category of undertakings at issue in this case as
operational level in nature, rather than policy-based discretionary
decisions, thereby overcoming sovereign immunity concerns. For
example, in Hartley v. Floyd, 512 So. 2d 1022 (Fla. 1st DCA 1987),
the widow of a fisherman called the Levy County Sheriff’s Office to
request assistance in locating her husband who did not come home
when he said he would. She asked the sheriff’s office to help
determine if his truck was still at the boat ramp. The deputy told
her that they would have someone check the boat ramp, but did
not do so. When she called back, they told her that the boat ramp
had been checked and her husband’s truck was not there.
Assuming her husband was safe, she delayed additional efforts to
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locate her husband, whose boat had capsized, and he died before
help could eventually reach him.
In concluding a duty existed, this Court found that the
“decision whether to comply with Mrs. Floyd’s request that the
sheriff's office determine if her husband’s truck and trailer were
still at the Cedar Key boat ramp was initially a discretionary
judgmental decision for which there would be no liability if Deputy
Legler had decided not to comply with the request and had so
advised Mrs. Floyd.” Id. at 1024 (emphasis added). It held,
however, that “once he advised her that he would comply with her
request to inspect the boat ramp and told her he would contact the
Coast Guard, he had a duty to perform these tasks with reasonable
care. His negligent failure to perform the tasks once he agreed to do
so can be a basis for holding the sheriff liable.” Id. (emphasis
added). Moreover, once the deputy “agreed to perform the tasks his
actions thereafter ceased to be discretionary actions and became
merely operational level activities which must be performed with
reasonable care and for which there is no sovereign immunity.” Id.(emphasis added). Here, there was a known, identifiable danger,
along with failed promises to escort Graves home, provide safety
checks to her, and to issue a trespass notice against Taylor, which
fall squarely within the caselaw.
Notably, the trial judge in this case cited Parrotino v.
Jacksonville, 612 So. 2d 586 (Fla. 1st DCA 1992), as “eerily
similar” to this case because this Court “determined that the City
of Jacksonville owed no duty of care to the Plaintiff” in that case.
He concluded that Parrotino required dismissal here. But he made
a big oversight. In Parrotino, the city was properly dismissed,
because no allegations were made of a special relationship or
undertaking as to the city. Overlooked is that this Court allowed a
negligence claim against the state attorney, who had promised to
pursue a “restraining order” to protect the victim—a claim eerily
similar to Graves’s claim in this case. This Court held that the
failure to pursue the restraining order “was operational in nature”
and thereby “not entitled to the protection afforded by the doctrine
of governmental immunity.” Id. at 591. Thus, rather than
supporting dismissal of the estate’s claims, Parrotino directly
supports allowing them to proceed.
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In conclusion, the trial court erred in concluding that the
estate failed to state a tort claim for relief based on the undertaker
doctrine. Accordingly, the order of dismissal should be reversed.
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Marie Mattox, Marie Mattox, P.A., Tallahassee, for Appellants.
Zackery A. Scharlepp, Coppins Monroe, P.A., Tallahassee, for
Appellees.
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