Conduct this egregious can’t protect the King!

FLORIDA LAW WEEKLY

VOLUME 51 NUMBER 21

CASES FROM THE WEEK OF MAY 29, 2026

SOVEREIGN IMMUNITY DID NOT BAR WRONGFUL DEATH ACTION AGAINST SHERIFF WHERE DEPUTIES ALLEGEDLY CALLED A TOW TRUCK TO FREE AN OBVIOUSLY IMPAIRED DRIVER’S VEHICLE FROM A DITCH AND THEN DIRECTED HIM TO DRIVE AWAY–THOSE ALLEGED ACTS WERE OPERATIONAL, NOT DISCRETIONARY POLICY-LEVEL DECISIONS

Smith v. Lee, 51 Fla. L. Weekly D1009 (Fla. May 20, 2026):

A driver left his home in the early morning hours after consuming Xanax, amphetamines, methamphetamine, and other substances over a two-day period. He looked down at his phone, lost control of his truck, hit a street sign, and drove into a ditch. He spent 30 to 45 minutes trying to dig the truck out of the mud before two DOC narcotic K-9 handlers happened to drive by and stopped. Both believed he was under the influence because he was slurring, unsteady, and did not seem like “he was all there.” One of them also found an empty Suboxone wrapper on the ground outside the open passenger door.

A deputy arrived. The DOC employees told her they suspected the driver was impaired and told her about the Suboxone wrapper. After interacting with him, the deputy called her supervisor and said she was 99 percent certain the driver was under the influence and needed help because she had never conducted a DUI investigation. When the supervisor arrived, the deputy told him the driver was “falling all over the place,” had taken out the sign, was on inmate release status, and had the empty Suboxone wrapper by the vehicle. The driver was slurring, had trouble balancing, and kept dropping his phone. The supervisor did not conduct field sobriety tests and allegedly muttered that “it’s too early for this.”

Instead, the supervisor told the deputy to call a tow truck and write the driver a careless driving ticket. The supervisor later testified he called the tow truck as a courtesy and was under no obligation to do so. The tow truck driver removed the truck from the ditch. The driver then asked if he could sit there to warm up and regain his faculties. The supervisor allegedly told him he had to drive away. Within six minutes, the driver crossed the center line, hit the decedent head-on, and killed her instantly.

The plaintiff sued, alleging the deputies negligently enabled a severely impaired driver to get back on the road by using a tow truck to put an otherwise inoperable vehicle back into operation. The defendant sheriff moved for summary judgment, arguing no duty and sovereign immunity. The trial court denied the motion.

On appeal, the court first dismissed the portion of the appeal challenging the duty ruling. Duty and sovereign immunity are conceptually separate, and rule 9.130 allows nonfinal review of orders denying sovereign immunity; it does not authorize interlocutory review of a trial court’s duty determination.

On sovereign immunity, the appellate court affirmed. The defendant tried to characterize the case as a challenge to the deputies’ failure to arrest, which would fall within discretionary law enforcement decision-making. The court rejected that assertion. The plaintiff was not suing because the deputies failed to arrest the driver; he was suing because the deputies allegedly affirmatively helped put the intoxicated driver back on the roadway and ordered him to drive away when he asked to stay and regain his faculties.

The appellate court held those alleged acts were not category II “enforcement of laws and protection of public safety” functions. They were category IV general services. Calling a tow truck to extricate the vehicle was not enforcing the law. It was a courtesy/general service. Telling the impaired driver to drive away, despite his request to remain until he could regain his faculties, was likewise not a protected law enforcement policy decision.

The court then held the conduct was operational, not discretionary. Enabling and directing an impaired person to drive did not involve basic governmental policy, did not require policy-level judgment, and did not involve judicial second-guessing of a discretionary plan or program. The court relied heavily on Henderson v. Bowden, where the supreme court distinguished between an officer’s discretionary decision whether to arrest and an officer’s operational act of directing an intoxicated person to drive.

The court dismissed in part and affirmed in part, thankfully leaving the plaintiff’s wrongful death claim against the defendant sheriff alive in this horrific case.

TRIAL COURT ERRED IN ENFORCING NONBINDING ARBITRATION AWARD WHERE THE DEFENDANT TIMELY MOVED FOR TRIAL DE NOVO– TRIAL COURT COULD NOT ADD ITS OWN EXTRA REQUIREMENT TO SET A CASE MANAGEMENT CONFERENCE, AND THEN USE NONCOMPLIANCE WITH THAT EXTRA STEP TO DEPRIVE THE DEFENDANT OF A TRIAL

Nichols v. French, 51 Fla. L. Weekly D1005 (Fla. May 20, 2026):

The plaintiff sued the defendant for civil battery and intentional infliction of emotional distress. The trial court referred the case to nonbinding arbitration. The case management order said that if a party timely moved for trial de novo after the arbitration award, that party also had to coordinate and set a case management conference within 30 days. The order did not say what would happen if a party failed to take that extra step. It also already contained a trial date in the event a timely trial de novo motion was filed.

After the arbitration award, the defendant filed his motion for trial de novo the very next day. Months later, the plaintiff moved to enforce the arbitration award, arguing that the defendant had not coordinated and set the case management conference required by the case management order. The trial court agreed, enforced the arbitration award, and denied the defendant’s motion for trial de novo as moot.

The appellate court reversed.

The court held the issue was straightforward. Under the version of section 44.103(5) and rule 1.820(h) that applied, the arbitration decision became final only if a timely motion for trial de novo was not filed. Here, the defendant filed the motion on time. Once that happened, the trial court had no discretion to deny the trial based on an additional case management requirement the court created.

The trial court tried to justify its ruling by relying on legislative intent and on the Florida Supreme Court’s later amendment to rule 1.820(h), which now requires both a notice rejecting the arbitration decision and a request for trial. But the appellate court rejected both points. The statute and rule were not ambiguous, so there was no reason to resort to legislative intent. And the rule amendment was not in effect when the defendant moved for trial de novo. The court reversed the final judgment and remanded for trial.

SUMMARY JUDGMENT FOR GENERAL CONTRACTOR AFFIRMED–PAINTING SUBCONTRACTOR WHO WAS DRIVING BETWEEN JOB SITES WAS AN INDEPENDENT CONTRACTOR, NOT THE GENERAL CONTRACTOR’S AGENT, WHERE THE RECORD SHOWED THE CONTRACTOR CONTROLLED OUTCOMES, SCHEDULING, AND DEADLINES, BUT NOT THE METHOD OF PAINTING OR TRAVEL

James v. Hernandez, 51 Fla. L. Weekly D1011 (Fla. May 20, 2026):

The plaintiff was riding his bicycle near an intersection in Tallahassee when he collided with a vehicle driven by the defendant. The plaintiff sustained serious injuries. The driver owned a painting company that served as a painting subcontractor for the defendant general contractor. At the time of the collision, the driver was traveling between the general contractor’s job sites.

The plaintiff sued the driver, the painting company, and the general contractor, arguing the driver was the general contractor’s agent and that the general contractor was vicariously liable for his negligence. The general contractor moved for summary judgment, asserting the driver was an independent contractor. The trial court entered summary judgment for the general contractor.

The appellate court affirmed.

The court began with the familiar rule that a principal may be vicariously liable for the negligence of an agent, but not for the negligence of an independent contractor. The real question was control–not merely whether the general contractor exercised some actual control, but whether it had the right to control the manner in which the work was performed.

The agreement identified the driver and his company as independent contractors. He was not paid a salary or hourly wage. He was paid a lump sum based on an agreed price per completed home. He had to carry his own general liability insurance, workers’ compensation insurance, and auto insurance. He owned a separate business, hired and paid his own workers, used a payroll company, paid his own taxes, bought his own paint, used his own painting equipment, and drove his own truck. The truck was not owned or leased by the general contractor, and the general contractor did not compensate him for driving or dictate how he got to and from job sites.

The plaintiff argued there was agency because the general contractor told the painter when and in what order to paint homes, what colors to use, and sometimes what supplier to use. The appellate court found that was not enough. Those directions controlled outcomes and sequencing, not the method of painting. A residential builder has to coordinate painters, plumbers, electricians, roofers, and other subcontractors, and has to tell them when and where to do the work to avoid scheduling chaos and meet deadlines. However, that does not transform every subcontractor into an agent.

The court also rejected the argument that the general contractor’s occasional training on how to paint created an agency relationship, noting the training occurred at the painter’s request and did not change the basic contractor-subcontractor relationship.

Because the plaintiff failed to present enough evidence to support that the general contractor controlled the method of the painting work, the court affirmed summary judgment.

TRIAL COURT IMPROPERLY DENIED DEFENSE PEREMPTORY CHALLENGES–PRIOR JURY SERVICE IS A FACIALLY RACE- AND GENDER-NEUTRAL REASON– RECORD DID NOT SUPPORT FINDING OF PRETEXT

Carballo v. State, 51 Fla. L. Weekly D1037 (Fla. May 20, 2026):

During voir dire in this criminal case, the defense attempted to use a peremptory challenge on an Asian male juror. The state asked for a race-neutral reason. The defense gave two: the juror had previously served on a criminal jury, and the defense believed the juror’s follow-up question suggested he wanted the defendant to put on evidence even though he had agreed with the court that the defendant had no obligation to do so.

The trial court rejected the explanation, finding it pretextual and not genuine because the juror also said he would follow the law.

Later, the defense tried to strike a female juror. Because the defense had previously stricken two other female jurors, the state again asked for a neutral explanation. The defense explained that the juror had also served on another jury and seemed excited to do so again. The trial court again found the explanation not genuine, citing prior strikes against the same group and the circumstances surrounding the strike. Both jurors sat on the jury, and the jury found the defendant guilty on all charges.

The appellate court reversed for new trial. It emphasized that the trial court’s focus under Melbourne requires not a determination about whether the explanation is “reasonable” but whether it is genuine. The burden of persuasion remains on the opponent of the strike to prove purposeful discrimination.

Prior jury service according to the court, is a valid, facially race- and gender-neutral reason for a peremptory strike. Once the defense gave that reason, the burden shifted back to the state to show the explanation was not genuine. The state did not do that. The appellate court found the record was devoid of relevant circumstances supporting the trial court’s finding of pretext, and ordered a new trial.

SOVEREIGN IMMUNITY CAP APPLIED INCORRECTLY WHERE TRIAL COURT SET OFF PRIOR PAYMENTS AGAINST THE VERDICT INSTEAD OF AGAINST THE STATUTORY CAP—POSTJUDGMENT INTEREST MAY BE INCLUDED IN THE JUDGMENT, BUT THE CLAIMANT CANNOT RECOVER MORE THAN THE CAP WITHOUT LEGISLATIVE ACTION

Chronister v. Prahalad, 51 Fla. L. Weekly D1038 (Fla. May 22, 2026):

The plaintiff obtained a final judgment after a jury trial arising out of an officer-involved motor vehicle accident. The defendant sheriff appealed, arguing the trial court misapplied the sovereign immunity cap. The appellate court found no error on the mistrial issue and addressed only the sovereign immunity calculation.

The plaintiff conceded that the trial court erred in setting off prior settlements against the verdict amount (it should have set the settlements off from the cap). However, the postjudgment interest should have been added to the actual damages awarded.

The court explained that section 768.28 waives sovereign immunity for tort liability only to a limited extent. The statute prohibits punitive damages and prejudgment interest and caps liability to an individual at $200,000, with any amount above the cap payable only by further act of the Legislature.

The appellate court held the setoff should be applied to the damages cap, not the verdict. But it also held post judgment interest was properly included in the judgment and should be calculated on the jury’s actual damages figure, not merely on the capped amount.

However, at the end of the day, while the judgment may include amounts above the cap, including post judgment interest, but the cap remains a bright-line limit on what the governmental defendant can be required to pay absent a claims bill.

APPEAL DISMISSED AFTER JOINT STIPULATION, BUT APPELLATE COURT RETAINED JURISDICTION TO CONSIDER SANCTIONS AGAINST THE LAWYER (NOT A PRO SE LITIGANT) FOR AN INITIAL BRIEF THAT APPEARED TO CITE FABRICATED CASES–ANOTHER WARNING THAT LAWYERS MUST VERIFY AI-GENERATED RESEARCH BEFORE FILING

Kings Roofing NWFL, LLC v. Fusion Works Construction, 51 Fla. L. Weekly D1048 (Fla. May 22, 2026):

The parties jointly stipulated to dismiss the appeal, and the appellate court dismissed it. But the court expressly retained jurisdiction to consider possible sanctions against the lawyer who filed the initial brief because the brief cited several cases, some of which were fabricated.

The court said the brief looked like it had been drafted with help from generative AI without sufficient safeguards to ensure that the cases existed or that they actually supported the propositions for which they were cited. The court noted this was not the first time it had seen filings with nonexistent cases or cases cited for inaccurate legal propositions.

The lawyer was ordered to provide copies of every case cited in the initial brief that actually existed, with highlighted quotations or language supporting the assertions made in the brief. The lawyer was also ordered to show cause why he should not be sanctioned and why he should not be referred to The Florida Bar for possible discipline. Yet another cautionary tale.