The punitive bar gets higher and higher

FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 47

CASES FROM THE WEEK OF NOVEMBER 21, 2025

TRIAL COURT ERRED IN GRANTING LEAVE TO AMEND TO SEEK PUNITIVE DAMAGES WHERE PLAINTIFF IMPROPERLY PLED A STAND-ALONE PUNITIVE DAMAGES COUNT, AND WHERE THE PROFFER FAILED TO SUPPORT A FINDING OF INTENTIONAL MISCONDUCT UNDER SECTION 768.72

Robertson v. Antoine, 50 Fla. L. Weekly D2496 (Fla. 4th DCA Nov. 19, 2025):

In this negligence action arising from a roadway collision, the defendant was operating a forklift on a public roadway when he collided with the plaintiff’s vehicle. The plaintiff sued Robertson and his employer, and later moved for leave to amend to add a punitive damages claim based on defendant’s admissions that he operated the forklift on the wrong side of the roadway, allegedly in violation of sections 316.2225 and 316.1515. In support, plaintiff proffered defendant’s deposition, her deposition, and the police report.

Defendant testified his boss asked him to move five pallets of furniture to a nearby building about twenty feet down the roadway. He acknowledged that at the time of the accident he was in the “wrong lane of travel,” and explained he believed it was safer to travel that short distance against traffic rather than making multiple turns across lanes. The plaintiff testified the traffic was “clear,” that she was stopped at the stop sign to make a right turn, and that the forklift “left his lane” and struck her. The crash report noted the defendant was traveling in the right westbound lane, that plaintiff had the right of way, and the defendant was found at fault. The trial court granted leave to add punitive damages based on a finding of intentional misconduct.

The Fourth District reversed. The court first held the pleading was procedurally improper because plaintiff impermissibly pled punitive damages as a stand-alone count (punitive damages are not a separate cause of action).

The court then addressed the substance of the trial court’s ruling. Because the trial court made an affirmative finding of intentional misconduct (and did not make findings as to gross negligence), the Fourth District limited its discussion to intentional misconduct.

On that issue, the court concluded the proffer did not demonstrate that the defendant had “actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result,” as required by section 768.72(2)(a). The court emphasized that the defendant’s testimony was that he believed his approach was safer and intended to reduce the probability of injury, even if that belief was mistaken.

The court characterized that conduct as ordinary negligence rather than intentional misconduct warranting punitive damages and reversed and remanded with instructions that the motion be denied.

Judge Forst dissented. He agreed that the trial court erred by analyzing the issue under the intentional misconduct prong but would have affirmed because a punitive damages “gatekeeper” could allow the claim to proceed under the gross negligence prong based on the defendant’s conscious decision to drive a fork-lift on the wrong side of the road. He also noted that the stand-alone count defect was not raised below and would view it as waived.

DEPARTMENT OF CORRECTION’S CLASSIFICATION AND ASSIGNMENT OF AN INMATE WITHIN THE PRISON SYSTEM (INCLUDING TRANSFERS) CONSTITUTES A DISCRETIONARY PLANNING-LEVEL FUNCTION IMMUNE FROM TORT SUIT; COURT REVERSED TRIAL COURT’S DENIAL OF MOTION TO DISMISS BECAUSE COMPLAINT DID NOT ALLEGE FAILURE TO FOLLOW A SPECIFIC POLICY OR BREACH OF A STATUTORY DUTY OF CARE

Florida Department of Corrections v. Campbell, 50 Fla. L. Weekly D2513 (Fla. 1st DCA Jul. 30, 2025):

The Plaintiff alleged that while imprisoned he was stabbed by a fellow inmate, was transferred to another prison where he was stabbed again, and after extensive hospitalization and recovery time in other DOC facilities, was transferred back to the first prison where he was stabbed a third time.

He sued DOC for common law negligence, alleging DOC acted negligently in transferring him back to a prison where he had previously been assaulted and where it was foreseeable he would be attacked again.

DOC moved to dismiss on sovereign immunity grounds, arguing the assignment and transfer decisions were discretionary, planning-level functions. The trial court denied the motion, and DOC took a nonfinal appeal.

The First District reversed. It reiterated that the limited waiver of sovereign immunity for tort actions applies to operational-level activities when there is an underlying common law or statutory duty of care, but does not apply to policymaking or planning functions.

The key question was whether DOC’s decisions to classify and assign the plaintiff within the prison system were planning-level or operational-level decisions. Relying on a prior case, the court held that DOC’s classification and placement of inmates is a discretionary, planning-level function for which DOC has sovereign immunity.

The court recognized that sovereign immunity may not apply where the plaintiff alleges the agency failed to follow its own preexisting planning-level policies, or where the agency breached a specific statutorily imposed duty of care. But the plaintiff did not allege that DOC failed to follow a particular policy when it classified and assigned him, and did not allege DOC breached a statutory duty of care in making those decisions, challenging instead the allegations that challenged DOC’s discretionary placement and classification decisions, which the court held were planning-level and therefore immune.