Nocco, Sheriff of Pasco County v. Wilcox

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHRIS NOCCO, in his official capacity as

Sheriff of Pasco County,

Appellant,

v.

DAKOTA WILCOX,

Appellee.

No. 2D2024-1585

June 6, 2025

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pasco

County; Kimberly Sharpe Byrd, Judge.

Benjamin D. Baird and Thomas W. Poulton of DeBevoise & Poulton, P.A.,

Winter Park, for Appellant.

Jennifer Ann Burns of Carlson Meissner Hayslett P.A., Clearwater, for

Appellee.

SLEET, Chief Judge.

In this interlocutory appeal, Chris Nocco, in his official capacity as

Sheriff of Pasco County, challenges the nonfinal order denying his motion

for summary judgment entered in favor of Dakota Wilcox in the

underlying negligent training action. On appeal, Sheriff Nocco argues

that the trial court erred in denying his motion for summary judgment

on sovereign immunity grounds because he was engaged in a

discretionary function which makes him immune from suit. Because the

negligent training cause of action alleged in Wilcox's complaint is

premised upon the Sheriff's planning-level decisions, he is entitled to

sovereign immunity, and we reverse.

I. BACKGROUND

It appears from the summary judgment evidence presented below

that on April 14, 2016, Dakota Wilcox, a then-thirteen-year-old student

at Bayonet Point Middle School, attempted to climb over a fence and

reenter the school after dismissal to retrieve his computer tablet. The

school shared a campus with Fivay High School, and Wilcox was

confronted by Fivay Principal Marsha VanHook and Bayonet Point

Assistant Principal Kathy Wild. While walking Wilcox to the principal's

office, Principal VanHook heard Wilcox say: "There is no use anyway, no

one cares. I'm going to cut myself." Assistant Principal Wild heard

Wilcox say that he would either "cut" or "kill" himself. Wilcox did not

clarify his statement.

The Bayonet Point school resource deputy was called to the

principal's office and observed that Wilcox was visibly agitated, rocking

back and forth, sweating, breathing rapidly, and clenching his hands

and had bouts of crying. Both school administrators, Principal VanHook

and Assistant Principal Wild, reported Wilcox's self-harm statements to

the school resource deputy. Additionally, Wilcox told the deputy that he

thought about killing himself all the time, that he tried to cut his wrist

with the lid of a can, that he thought he would be better off dead, and

that he wished he were dead.

When Wilcox's stepmother arrived at the school, she called Wilcox's

mental health counselor Holly Edgren. After Edgren spoke with Wilcox

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over the phone, she performed a verbal assessment and expressed that

she believed Wilcox was not suicidal and that he did not need to be

Baker Acted.1 However, based on the information from the

administrators and her own observations, the school resource deputy

determined that Wilcox was in "a state of crisis," detained him under the

Baker Act, and transported him to a mental health facility where he was

kept for two nights.

At the time of the incident, the school resource deputy had not

received training specific to the Baker Act. However, she had attended

an eighty-hour crisis intervention training, which addressed de-

escalation and mental health crisis training. Approximately nine months

after the incident, in January 2017, the deputy completed Baker Act

training.

On March 15, 2021, Allan Wilcox, on behalf of his then-minor son

Dakota Wilcox, filed the operative two-count amended complaint against

Sheriff Nocco alleging in count two that Sheriff Nocco failed to educate

and train the school resource officer in properly enforcing Baker Act

provisions. After engaging in discovery, Sheriff Nocco moved for

summary judgment arguing that he was entitled to sovereign immunity

because the alleged deficiencies in the Sheriff's training of his deputies

involved discretionary, planning-level functions that are immune from

suit. Following a summary judgment hearing, the trial court issued a

written order denying the motion and concluding that the timeliness of

the school resource deputy's Baker Act training was an operational

function and that Sheriff Nocco was not entitled to immunity as to the

negligent training count. Sheriff Nocco now challenges the denial.

1 §§ 394.451-.47892, Fla. Stat. (2021).

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II. ANALYSIS

On appeal, Sheriff Nocco argues that the trial court erred in

denying his motion for summary judgment as to the negligent training

count because the court improperly considered the timeliness of the

school resource deputy's Baker Act training when it was outside the

scope of the operative complaint. He further argues that even if the

timeliness was within the scope, the Sheriff's training decisions,

including when to conduct training, are discretionary functions—not

operational—and therefore he is immune from suit.

We review de novo the trial court's denial of the Sheriff's motion for

summary judgment based on sovereign immunity. See City of New Port

Richey v. Lamko, 359 So. 3d 840, 843 (Fla. 2d DCA 2023).

The State of Florida and its subsidiaries—including its agencies

and subdivisions—are generally immune from tort liability; however,

Florida has waived this immunity "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."

§ 768.28(1), Fla. Stat. (2023); see also art. X, § 13, Fla. Const. Yet even if

the claim contained sufficient allegations of tort liability under which a

private person would be liable, the waiver of sovereign immunity would

still not apply if the challenged acts of the state agent were

"discretionary" governmental acts rather than merely "operational" ones.

See Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 933 (Fla.

2004) ("[B]asic judgmental or discretionary governmental functions are

immune from legal action, whereas operational acts are not protected by

sovereign immunity."). "In this context, a 'discretionary,' planning-level

function involves 'an exercise of executive or legislative power such that a

court's intervention by way of tort law would inappropriately entangle the

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court in fundamental questions of policy and planning.' " Beach Cmty.

Bank v. City of Freeport, 150 So. 3d 1111, 1114 (Fla. 2014) (quoting

Mosby v. Harrell, 909 So. 2d 323, 328 (Fla. 1st DCA 2005)). "An

'operational' function, on the other hand, 'is one not necessary to or

inherent in policy or planning, that merely reflects a secondary decision

as to how those policies or plans will be implemented.' " Id. (quoting

Dep't of Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 911 n.4 (Fla.

1995)). "Planning level functions are generally interpreted to be those

requiring basic policy decisions, while operational level functions are

those that implement policy." Lamko, 359 So. 3d at 844 (quoting Wallace

v. Dean, 3 So. 3d 1035, 1053 (Fla. 2009)).

Claims for negligent training are barred by sovereign immunity

when they involve "decision[s] regarding how to train . . . officers and

what subject matter to include in the training" because those are "clearly

an exercise of governmental discretion regarding fundamental questions

of policy and planning." Lewis v. City of St. Petersburg, 260 F.3d 1260,

1266 (11th Cir. 2001) (emphasis added). However, negligent training

claims based upon " 'the implementation or operation of [a] training

program,' as opposed to the program's content, may involve operational

functions, depending on the facts of the case." N.R. by Ragan v. Sch. Bd.

of Okaloosa Cnty., Fla., 418 F. Supp. 3d 957, 997 (N.D. Fla. 2019)

(emphasis added) (quoting Mercado v. City of Orlando, 407 F.3d 1152,

1162 (11th Cir. 2005)).

In this case, Wilcox alleged in the complaint that the Sheriff failed

"to educate and train [the school resource deputy] in properly enforcing

the Baker Act provisions." Wilcox argues that he is not challenging the

content of the Baker Act training but rather that he is challenging the

Sheriff's implementation of the Baker Act training. However, the record

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is devoid of any evidence that the Sheriff adopted a Baker Act training

policy or that the school resource deputy received the training outside of

a policy-prescribed timeframe. Without such evidence, arguments

regarding the timeliness of the deputy's Baker Act training cannot be

taken as a challenge to the implementation of an existing policy.

Furthermore, despite the trial court's conclusion otherwise, we

emphasize that just because the school resource deputy completed Baker

Act training about nine months after her encounter with Wilcox does not

establish that the Sheriff had an established policy in place such that the

timeliness of the deputy's training is an operational function.

We note that claims premised on the timing of training can fall

under either discretionary or operational functions of the government,

depending on the facts of the case. Determinations regarding when

officers need to complete training is an exercise of governmental

discretion regarding fundamental questions of policy and planning

because that flows from decisions regarding how to train. Therefore,

such a claim would be barred by sovereign immunity. However, where

there is already an established policy regarding the timing of training and

an officer failed to complete training according to that policy, such a

negligent training claim would challenge an operational function.

Here, however, because there is no evidence that the Sheriff

adopted a policy that required the school resource deputy to complete

Baker Act training or that the deputy did not receive a policy-required

training, the trial court erred in concluding that the timeliness of the

deputy's Baker Act training was an operational function and that Sheriff

Nocco was not entitled to immunity as to the negligent training count.

Accordingly, the trial court erroneously denied Sheriff Nocco's

motion for summary judgment as to count two, and we reverse and

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remand with instructions for the trial court to grant the Sheriff's motion

on that count. See Sch. Bd. of Broward Cnty. v. McCall, 322 So. 3d 655,

659 (Fla. 4th DCA 2021).

Reversed and remanded with instructions.

KELLY and MORRIS, JJ., Concur.

Opinion subject to revision prior to official publication.

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