Third District Court of Appeal
State of Florida
Opinion filed May 31, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0972
Lower Tribunal No. 19-5993
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City of Miami,
Appellant,
vs.
Lyn M. Robinson,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Victoria Méndez, City Attorney, and Eric J. Eves, Assistant City
Attorney, for appellant.
The Gutierrez Firm, and Jorge P. Gutierrez, Jr.; Philip D. Parrish, P.A.,
and Philip D. Parrish, for appellee.
Before FERNANDEZ, C.J., and SCALES and BOKOR, JJ.
BOKOR, J.
Appellee Lyn M. Robinson sued the City of Miami for negligence as a
result of an automobile accident with a City of Miami-owned vehicle driven
by a City employee, Fire-Rescue Lieutenant Karen Salinas. The City
answered and asserted sovereign immunity pursuant to section 768.28,
Florida Statutes. Robinson propounded discovery, the City failed to respond
to the discovery, and Robinson moved for sanctions. Eventually, 1 the trial
court struck the City’s answer and affirmative defenses. One of the
purported affirmative defenses asserted sovereign immunity under Florida
Statute section 768.28. The City did not appeal the order striking the
pleadings. But the City sought summary judgment, arguing that sovereign
immunity may be raised at any time, and barred the suit against the City.
The trial court disagreed and denied the City’s motion. The City appeals. 2
Because sovereign immunity acts as a prudential bar to suit under the
circumstances present, we agree with the City and reverse.
1
The initial trial judge conducted an evidentiary hearing and subsequently
struck the City’s pleadings. A successor judge reconsidered and struck the
sanctions. A second successor judge reimposed the sanctions. We do not
address the propriety of sanctions for the conduct alleged, as the sanctions
order is not before us on appeal.
2
We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(F)(ii). “We review the
court’s denial of the City’s motion for summary judgment based on sovereign
immunity de novo.” City of Fort Lauderdale v. Nichols,
246 So. 3d 391, 392
(Fla. 4th DCA 2018) (citing Town of Gulf Stream v. Palm Beach County,
206
So. 3d 721, 725 (Fla. 4th DCA 2016)).
2
In Florida, “sovereign immunity is the rule, rather than the exception.”
Pan-Am Tobacco Corp. v. Dep’t of Corr.,
471 So. 2d 4, 5 (Fla. 1984). The
State may waive sovereign immunity, but any waiver of sovereign immunity
must be “clear and unequivocal.” Rabideau v. State,
409 So. 2d 1045, 1046
(Fla. 1982). Florida Statutes section 768.28 clearly and unequivocally
provides for waiver of sovereign immunity in certain tort actions against a
governmental entity. Specifically, section 768.28 waives sovereign immunity
for tort liability for the State and its subdivisions, including municipalities, “but
only to the extent specified in this act.” § 768.28(1), Fla. Stat. Such waiver
permits:
Actions at law against the state or any of its agencies or subdivisions
to recover damages in tort for money damages against the state or its
agencies or subdivisions for injury or loss of property, personal injury,
or death caused by the negligent or wrongful act or omission of any
employee of the agency or subdivision while acting within the scope
of the employee’s office or employment under circumstances in
which the state or such agency or subdivision, if a private person,
would be liable to the claimant, in accordance with the general laws of
this state, may be prosecuted subject to the limitations specified in this
act.
Id. (emphasis added). Specifically addressing the course and scope
requirement in a separate section of the statutory provision, the statute
further provides that:
The state or its subdivisions are not liable in tort for the acts or
omissions of an officer, employee, or agent committed while
acting outside the course and scope of her or his employment or
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committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or
property.
§ 768.28(9), Fla. Stat. (emphasis added).
This court explained that conduct occurs within the course and scope
of employment only if “(1) the conduct is the kind the employee is hired to
perform, (2) the conduct occurs substantially within the time and space limits
authorized or required by the work to be performed, and (3) the conduct is
activated at least in part by a purpose to serve the master.” Sussman v. Fla.
E. Coast Props., Inc.,
557 So. 2d 74, 75–76 (Fla. 3d DCA 1990) (citations
omitted). Relevant to this appeal is the second prong of the course and
scope test, specifically, whether the conduct occurred within the time and
space limits of the work required. The City argued that, under the “going and
coming” rule, because the employee was traveling to work at the time of the
accident, she was not acting within the time and space constraints of her
employment. See Swartz v. McDonald’s Corp.,
788 So. 2d 937, 942 (Fla.
2001) (“The ‘going and coming’ rule provides that injuries sustained while
traveling to or from work do not arise out of and in the course of employment,
and, therefore, are not compensable.”).
Applying the “going and coming” concept to the course and scope
requirement of section 768.28(9), the City argues that, since the accident
4
occurred outside the scope of employment, sovereign immunity shields the
City from a tort claim based on the employee’s alleged negligence. 3 The trial
court didn’t disagree with the City’s legal analysis but nonetheless denied
the City’s motion for summary judgment, finding a “genuine dispute as to
whether the City’s employee, a Fire Rescue Officer, was off duty at the time
of the car accident.” A review of the record, however, reveals no such
dispute. 4
3
In other contexts, the dangerous instrumentality doctrine may obviate the
need to determine whether an employee was on the way to work where, as
here, the employer provided the vehicle. See Robelo v. United Consumers
Club, Inc.,
555 So. 2d 395, 396–97 (Fla. 3d DCA 1989) (explaining that under
the dangerous instrumentality doctrine an employer may be held “liable for
injuries caused by the employee in an accident occurring while the employee
is in transit to the office if the employer provides transportation to and from
the workplace”). But the express language of the sovereign immunity statute
waives such immunity only where the employee acts within the course and
scope of the employment and includes no exception for a dangerous
instrumentality. See Rabideau,
409 So. 2d at 1046 (“Any waiver of sovereign
immunity must be clear and unequivocal.”); Arnold v. Shumpert,
217 So. 2d
116 (Fla. 1968); Spangler v. Fla. State Tpk. Auth.,
106 So. 2d 421 (Fla.
1958). Had the legislature intended to accept vicarious responsibility for the
operation of state vehicles while in use for nonstate purposes, we believe it
would have expressly so provided.
4
Florida adopted the federal summary judgment standard, effective May 1,
2021. In re Amends. to Fla. Rule of Civ. Proc. 1.510,
317 So. 3d 72, 77 (Fla.
2021). This standard “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
5
If the record evinced a factual dispute regarding the “going and
coming” rule, this appeal would likely end with every appellee’s favorite three
letters in the Florida appellate lexicon, “PCA.” But the operative complaint
makes no claim that the employee was on duty at the time of the accident,
and, more importantly, Robinson presents no summary judgment evidence
to create an issue of fact to that effect. The City presents the only relevant
piece of admissible evidence in support of its motion for summary judgment.
Relying on, and citing to, the employee’s deposition, which the City properly
filed in support, the City’s motion for summary judgment explains that “[a]t
the time of the car accident, Lt. Salinas was off duty.” In her deposition, the
employee states that she “was heading to work” at the time of the accident.
Robinson doesn’t contest or counter the evidence that the employee was off
duty, on her way to work at the time of the accident. Instead, Robinson’s
response to the City’s motion for summary judgment relies on one
argument—the same argument she makes before this court—that because
the trial court struck the City’s answer and affirmative defenses, the City
couldn’t assert sovereign immunity.
In her answer brief before this court, Robinson commendably
“confesses error as to the denial of the Motion for Summary Judgment based
upon disputed issues of material fact, as to the applicability of the going and
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coming rule.” Robinson asks us to rely on the tipsy coachman doctrine and
affirm the trial court based on the stricken pleadings. But this argument
misses the mark for two important reasons. First, “[s]ummary judgment is
designed to test the sufficiency of the evidence to determine if there is
sufficient evidence at issue to justify a trial or formal hearing on the issues
raised in the pleadings.” The Fla. Bar v. Greene,
926 So. 2d 1195, 1200
(Fla. 2006). A trial court must grant summary judgment where “it is apparent
from the pleadings, depositions, affidavits, or other evidence that there is no
genuine issue of material fact and the moving party is entitled to relief as a
matter of law.”
Id. Robinson proffered no evidence at summary judgment
from which the trial court could conclude that the accident occurred during
the course and scope of employment. The only record evidence presented
established that the employee was on her way to work at the time of the
accident. “Where there are no factual disputes, whether an employee is
acting within the course and scope of his employment is a question of law.”
Peterson v. Cisco Sys., Inc.,
320 So. 3d 972, 973 (Fla. 2d DCA 2021)
(citations omitted); see also Sussman,
557 So. 2d at 76 (noting that whether
an employee was acting within the scope of their employment is a question
of law when there is no factual dispute).
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Second, and perhaps more important conceptually, Robinson
misconstrues the role of sovereign immunity. Sovereign immunity bars a
claim against a governmental entity, with exception for claims brought under
the federal or state constitutions, claims based on a “clear and unequivocal”
legislative waiver of sovereign immunity, or contractual claims based on an
express, written agreement with a governmental entity. Univ. of Fla. Bd. of
Trs. v. Rojas,
351 So. 3d 1167, 1170 (Fla. 1st DCA 2022). Because
sovereign immunity is the rule, not the exception, it stands to reason that a
party bringing a suit in tort against a governmental entity bears the initial
burden of showing a recognized exception to sovereign immunity.
The fact that the trial court struck the City’s defenses changes nothing.
Much like subject matter jurisdiction, sovereign immunity isn’t an affirmative
defense, and it can be raised at any time. State, Dep't of Highway Safety &
Motor Vehicles, Div. of Highway Patrol v. Kropff,
491 So. 2d 1252, 1254 n.1
(Fla. 3d DCA 1986); see also Schmauss v. Snoll,
245 So. 2d 112, 113 (Fla.
3d DCA 1971) (“A state’s immunity from suit relates to subject matter
jurisdiction, and is not an affirmative defense. Lack of jurisdiction over the
subject matter may be raised at any time. . . .”) (citation omitted); Sebring
Utils. Comm’n v. Sicher,
509 So. 2d 968, 969 (Fla. 2d DCA 1987)
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(“[G]overnmental immunity is not an affirmative defense, but is jurisdictional
and may be raised at any time.”).
Here, Robinson alleged damages resulting from an automobile
accident and pointed to a general waiver of sovereign immunity for tort
claims pursuant to Florida Statutes section 768.28, and further alleged
compliance with notice provisions under the same. This provides a general
allegation of statutory waiver of sovereign immunity for tort claims. But in
the motion for summary judgment based on sovereign immunity, the City
asserts sovereign immunity, based on the fact that sovereign immunity
provides that “[t]he state or its subdivisions are not liable in tort for the acts
or omissions of an officer, employee, or agent committed while acting outside
the course and scope of her or his employment.” § 768.28(9), Fla. Stat. The
City supports the assertion of sovereign immunity by offering facts,
undisputed and unrebutted by Robinson, establishing that the accident
occurred outside the employee’s course and scope of employment. The
City’s motion for summary judgment rebutted the general allegation of waiver
of sovereign immunity. The City presented a factual predicate establishing
nonwaiver of sovereign immunity under sections 768.28(1) and 768.28(9).
Robinson failed to establish, at a minimum, an issue of fact regarding the
applicability of sovereign immunity to the factual predicate. Robinson
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concedes, no such factual dispute exists. To the contrary, the only evidence
before the court establishes that the employee was on her way to work (not
at work), and the going and coming rule applies. The accident occurred
while the employee acted outside the course and scope of her employment.
Because no factual dispute exists, the trial court should have granted
summary judgment in favor of the City. Accordingly, we reverse and remand
with instructions to grant the City’s motion for summary judgment on the
basis of sovereign immunity and enter final judgment in favor of the City.
Reversed and remanded with instructions.
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