Jordan v. Nienhuis

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ANDREA JORDAN, AS PERSONAL
REPRESENTATIVE FOR THE ESTATE
OF CHARLES E. JORDAN,
Appellant,
v. Case No. 5D16-1245
ALVIN NIENHUIS, AS SHERIFF
OF HERNANDO COUNTY, FLORIDA,
Appellee.
________________________________/
Opinion filed November 4, 2016
Appeal from the Circuit Court
for Hernando County,
Richard Tombrink, Jr., Judge.
Jeffrey D. Jensen, of Unice Salzman
Jensen, P.A., Trinity, for Appellant.
Bruce R. Bogan and Melissa J. Sydow, of
Hilyard, Bogan & Palmer, P.A., Orlando, for
Appellee.
ORFINGER, J.
Appellant, Andrea Jordan, as personal representative of the Estate of Charles E.
Jordan (“Decedent”), filed a wrongful death action against Alvin Nienhuis, in his capacity
as Sheriff of Hernando County, Florida, based upon the alleged negligence of a 911
operator in responding to a call for medical assistance.1 The trial court found that the
Sheriff owed no actionable duty to Decedent and dismissed Appellant’s third amended
complaint with prejudice. This appeal followed.2
The third amended complaint alleged Decedent experienced a medical
emergency, inhibiting his ability to breathe. His wife, Annette Jordan, contacted 911 for
assistance, informing the 911 operator of Decedent’s breathing difficulties. The 911
operator told Mrs. Jordan that “help was on the way,” and questioned her about
Decedent’s condition. When Decedent’s condition worsened and he lost consciousness,
ending up on the floor, the 911 operator directed Mrs. Jordan to “just leave [him] there”
while awaiting further assistance from EMS. EMS arrived at the scene and administered
CPR, but Decedent ultimately died.
The third amended complaint asserted that the 911 operator negligently misled
Mrs. Jordan about the seriousness of Decedent’s medical emergency and induced her
not to render aid to Decedent, resulting in his death. The complaint further alleged the
911 operator was negligent in giving Mrs. Jordan instructions on how to care for
Decedent, assuring her that help was on the way, and leading her to believe that there
was no need to render further aid. Appellant claimed that Mrs. Jordan relied on the 911
operator’s assurances and did not explore alternative options for responding to
Decedent’s emergency, thereby placing Decedent in a zone of danger. The trial court
granted the Sheriff’s motion to dismiss the third amended complaint with prejudice for
1
The Hernando County Sheriff’s Office operates and manages the 911 emergency
communication system in Hernando County.
2The trial court did not abuse its discretion in not allowing Appellant to further
amend her complaint. We affirm as to that issue without further comment.
2
failure to state a cause of action, based on its finding that the Sheriff owed a duty of care
only to the general public and not to Decedent individually and that Appellant had failed
to sufficiently plead a special relationship between the 911 operator and Decedent.
A trial court’s order granting a motion to dismiss with prejudice is reviewed de novo.
See Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009) (reviewing de novo dismissal of
complaint for failure to state cause of action). We take the factual allegations in the
complaint as true and draw all reasonable inferences in favor of the pleader. Ray Coudriet
Builders, Inc. v. R.K. Edwards, Inc., 157 So. 3d 484, 485 (Fla. 5th DCA 2015). However,
general, vague and conclusory statements are insufficient to satisfy the requirement that
a pleader allege “a short and plain statement of the ultimate facts showing the pleader is
entitled to relief . . . .” Fla. R. Civ. P. 1.110(b); see Beckler v. Hoffman, 550 So. 2d 68, 70
(Fla. 5th DCA 1989).
“[F]or there to be governmental tort liability, there must be either an underlying
common law or statutory duty of care with respect to the alleged negligent conduct.”
Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985).
Governmental tort liability generally depends on the nature of the governmental function,
and has been broadly divided into four categories. Category I activities include legislative,
permitting, licensing, and executive officer functions; category II includes enforcement of
laws and the protection of the public safety; category III concerns capital improvements
and property control operations; and category IV includes providing professional,
educational, and general services for the health and welfare of citizens. Id. at 919.
Activities that fall within categories I and II have no underlying common law duty of care;
however, liability may nevertheless be imposed when a special relationship exists
3
between the tort victim and the governmental actor. Id. at 919-21; see Everton v. Willard,
468 So. 2d 936, 938 (Fla. 1985). In contrast to categories I and II, there may be
governmental tort liability under categories III and IV, excepting those characterized as
planning or judgmental. Dean, 3 So. 3d at 104; Trianon, 468 So. 2d at 921.
“The operation of a 911 emergency call system is part of the law enforcement and
protection of public safety service provided by a [sheriff’s] office and therefore constitutes
a Category II function.” Pierre v. Jenne, 795 So. 2d 1062, 1063 (Fla. 4th DCA 2001).
Thus, to impose governmental liability, Appellant was required to plead sufficient facts
that, if proven, demonstrate a special relationship existed between the Sheriff and the
Decedent. See id.; see also Laskey v. Martin Cty. Sheriff’s Dep’t, 708 So. 2d 1013, 1014
(Fla. 4th DCA 1998) (recognizing 911 emergency call system falls within category II, and
rejecting assertion that because 911 service relays medical emergency calls as well as
those concerning violations of law or fires, it is more closely analogous to category IV
function). To establish a special relationship, Appellant was required to plead facts
sufficient to show, if proven:
1) an express promise or assurance of assistance;
2) justifiable reliance on the promise or assurance of
assistance; and,
3) harm suffered because of the reliance upon the express
promise or assurance of assistance.
Pierre, 795 So. 2d at 1064.
4
The trial court correctly concluded that Appellant failed to allege facts sufficient to
show the necessary elements to establish a special relationship.3 Nonetheless, Appellant
asserts that a liability exists pursuant to the undertaker’s doctrine because the 911
operator increased the risk of harm to Decedent. We disagree and conclude the
undertaker’s doctrine is inapplicable. The undertaker’s doctrine applies when
government agents engage an injured party, and then either control a situation and
increase the risk of harm to the injured party or induce third parties—who would have
otherwise rendered aid—to forebear from doing so, thereby placing the injured party in a
greater “zone of risk.” Dean, 3 So. 3d at 1040.
In Dean, the Florida Supreme Court held that the plaintiff stated a claim for
negligence based on the undertaker’s doctrine. In that case, after responding to a call for
a safety check, the sheriff’s deputies gathered information from a neighbor about the
subject of the call, entered the unconscious woman’s home, provided an assessment of
her safety, and repeatedly assured third parties that the woman was asleep and that it
was unnecessary to call for an ambulance. Id. at 1043. Based on those assurances, the
3 For example, a special relationship was found to exist between the decedent and
the city that operated the 911 service in St. George v. City of Deerfield Beach, 568 So.
2d 931 (Fla. 4th DCA 1990), but that case is factually distinguishable. In St. George, the
ex-wife called 911 to report that her ex-husband was drunk, creating a disturbance and
refusing to seek medical care for a bleeding mouth. Paramedics responded, but the ex-
husband refused examination or treatment. About twenty minutes after the paramedics
departed, the ex-wife again called 911, saying her ex-husband’s condition had worsened
and that he had threatened to kill her. The 911 operator mishandled the call and failed to
dispatch police or paramedics. The ex-husband died shortly thereafter from
gastrointestinal hemorrhaging. The Fourth District found these facts sufficient, if proven,
to create a special relationship based on the negligence of the 911 operator in failing to
dispatch emergency personnel after assuring decedent’s ex-wife that help was on the
way. In the present case, the 911 operator did provide the promised help, apparently
without delay.
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neighbor did nothing more until the next day when, after finding the woman still
unresponsive, she called for an ambulance. The woman ultimately died. Id. The court
held that the undertaker’s doctrine applied because the deputies took control of the
situation and increased the risk of harm to the woman by discouraging third parties from
rendering aid. As a result, the court found that the complaint stated a cause of action for
wrongful death.4 Id. at 1052.
Unlike the deputies in Dean, the 911 operator responded to Mrs. Jordan’s call by
gathering information on Decedent’s condition and dispatching EMS to provide
assistance. The 911 operator did not increase the risk of harm to Decedent or control the
situation. It is not enough that a risk merely exists or that it is foreseeable. Instead, the
defendant’s conduct must create the risk or control the situation before liability may be
imposed. Bongiorno v. Americorp, Inc., 159 So. 3d 1027, 1029-30 (Fla. 5th DCA 2015).
We affirm the trial court’s order dismissing Appellant’s third amended complaint
with prejudice.
AFFIRMED.
EVANDER and LAMBERT, JJ., concur.
4 Based on this reasoning, the Dean court found that the governmental liability
involved in that case could be classified as a category IV function with a common law duty
of care because the sheriff’s deputies undertook to provide a well-being check on a
specific individual, and did not involve the public-duty doctrine or any of its exceptions
because their actions did not involve enforcement of laws or the protection of public
safety. 3 So. 3d at 1048 n.22.
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