The Week in Torts – Cases from the Week of November 11, 2016
FLORIDA LAW WEEKLY
VOLUME 41, NUMBER 45
CASES FROM THE WEEK OF NOVEMBER 11, 2016
NO ERROR IN DISMISSING WRONGFUL DEATH CASE FILED AGAINST THE SHERIFF BASED ON THE ALLEGED NEGLIGENCE OF A 911 OPERATOR RESPONDING TO A CALL FOR MEDICAL ASSISTANCE WHERE THE PLAINTIFF FAILED TO PLEAD A SPECIAL RELATIONSHIP BETWEEN THE OPERATOR AND THE DECEDENT–SHERIFF OWES A DUTY OF CARE TO THE GENERAL PUBLIC AND NOT TO INDIVIDUALS–NO LIABILITY UNDER THE UNDERTAKER’S DOCTRINE WHERE THE OPERATOR DID NOT INCREASE THE RISK OF HARM TO THE DECEDENT OR CONTROL THE SITUATION.
Jordan v. Nienhuis, 41 Fla. L. Weekly D2464 (Fla. 5th DCA November 4, 2016):
A woman called 911 when her husband began experiencing severe breathing difficulties. She informed the 911 operator, and the operator told her that help was on the way. She questioned the wife about the man’s condition.
When the decedent’s condition worsened and he lost consciousness, the 911 operator directed the wife to just leave him there while she waited for EMS. EMS did arrive and administered CPR but the man died.
The complaint asserted that the operator negligently misled the wife about the seriousness of the emergency, and induced her not to render aid to the decedent resulting in his death. The complaint further alleged that the operator was negligent in giving the wife instructions in how to care for the decedent, assuring her that help was on the way and leading her to believe there was no need to further render aid. The plaintiff claimed that the wife’s reliance on the assurances led her to not explore alternative options for responding to the man’s emergency, placing him in the zone of danger.
Governmental tort liability generally depends on the nature of the function and has been broadly divided into four categories. There is no common law duty of care owed for legislative permitting functions, or for the enforcement of laws protection of public safety. There may be liability though, when a special relationship exists between the tort victim and the governmental actor.
The 911 system is part of the general protection of public safety provided by law enforcement. Thus, to impose governmental liability, the plaintiff was required to plead sufficient facts that, if proven, would demonstrate a special relationship between the Sheriff and the decedent. A special relationship would exist if there were sufficient facts to show: (1) an expressed promise or assurance of assistance; (2) justifiable reliance on the promise or assurance of assistance; and (3) harm suffered because of reliance on the expressed promise or assurance of assistance.
In this case, the trial court properly concluded that the plaintiff failed to allege the necessary facts to establish a special relationship. Still, the plaintiff asserted that liability existed under the undertaker’s doctrine, because the 911 operator increased the risk of harm to the decedent.
The court disagreed, and ruled that the 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.
The court compared another case where Sheriff Deputies had gathered information from a neighbor about the subject of the call, entered an unconscious woman’s home and provided an assessment of her safety, and repeatedly assured third parties that the woman was asleep and it was unnecessary to call an ambulance. Based on those assurances, the neighbor did nothing more, and the woman ultimately died.
In that instance, the court held that the undertaker’s doctrine applied because the deputies had taken control of the situation, and increased the risk of harm to the woman by discouraging third parties from rendering aid.
Here, however, the 911 operator did not increase the harm to the decedent or control the situation. She just responded to the wife by gathering information on the decedent’s condition and dispatching EMS. A defendant’s conduct must create risk or control the situation before liability may be imposed.
AS TO A PRISONER’S CLAIM AGAINST PRISON EMPLOYEES, THE FOUR-YEAR STATUTE OF LIMITATIONS IN SECTION 768.28 APPLIES–THE FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IS AN AFFIRMATIVE DEFENSE UNDER THE PRISON LITIGATION REFORM ACT, MEANING THAT DISMISSAL ON THAT BASIS IS IMPROPER.
Green v. Cottrell, 41 Fla. L. Weekly S506 (Fla. November 10, 2016):
An inmate in the Santa Rosa County Jail advised four corrections employees that other inmates were “after him.” Not only did they do nothing, the officers watched while he was beaten by those very same inmates.
As a result, the prisoner filed a pro se complaint sounding in negligence and intentional infliction of emotional distress. He claimed that the employees had failed to exercise the reasonable care necessary to protect him from foreseeable harm after they were placed on notice. Plaintiff filed his complaint four years to the day from the incident, and alleging that he had exhausted his administrative remedies by using the proper grievance procedure at his jail.
The trial court dismissed the complaint. It concluded the claims were time barred under section 95.11(5)(g), which provides a one year time limit for an action brought on or behalf of a prisoner as defined in section 57.085, related to the conditions of the prison’s confinement. With regard to the federal claims, the trial court concluded that the allegations were not enough to satisfy the administrative exhaustion requirements either.
The supreme court said by its plain terms that section 95.11(5)(g) only relates to conditions of a prisoner’s confinement. Thus, if either of the qualifications is not met, then the statute does not apply. Because this did not have to do with the “conditions” of the confinement, the four-year (and not the one-year) statute under section 768.28
As to the exhaustion of remedies claim, the U.S. Supreme Court has held that when prisoners raise federal law claims, the correctional facilities grievance process is the one that must be exhausted. Therefore, under the Supreme Court’s interpretation of the Prison Litigation Reform Act, the plaintiff was not required to plead exhaustion of administrative remedies at the jail. The fact that he did plead exhaustion did not place the burden on him to demonstrate that he had actually exhausted the administrative remedies that had been implemented by the jail. Instead, the burden of proof with regard to establishing an affirmative defense lay with the defendant, the jail employees.
There were also factual questions as to whether administrative remedies had been exhausted. Because courts review motions to dismiss according to the four corners of the complaint, it was premature to evaluate on this affirmative defense. Ultimately, but the burden is on the defendant to demonstrate non-compliance.
TO BE TIMELY, A NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE COURT WITHIN 30 DAYS OF THE RENDITION OF THE ORDER–MAILING OR HAVING IT PLACED IN THE MAILBOX IS NOT SUFFICIENT.
Fehling v. Fehling, 41 Fla. L. Weekly D2474 (Fla. 1st DCA November 4, 2016):
Florida courts are required to dismiss an appeal if the notice is not filed within the applicable time limit.