BROWARD COUNTY v. CHRISTINA MANARITE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BROWARD COUNTY,

Appellant,

v.

CHRISTINA MANARITE, individually and on behalf of

GIOVANNI MANARITE, a minor child, ALBERTO CASTRO,

CENTRAL BROWARD WATER CONTROL DISTRICT,

WASTE MANAGEMENT INC. OF FLORIDA

d/b/a WASTE MANAGEMENT, and TOWN OF DAVIE,

Appellees.

No. 4D21-2328

[February 2, 2022]

Appeal of nonfinal order from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Keathan B. Frink, Judge; L.T. Case No.

CACE21-002739.

Andrew J. Meyers, County Attorney, and Joseph K. Jarone, Assistant

County Attorney, Fort Lauderdale, for appellant.

Mervin L. Ford of Mervin L. Ford, P.A., Miami, for appellee Christina

Manarite.

GERBER, J.

The county appeals from the circuit court’s nonfinal order denying the

county’s “Motion to Dismiss the Amended Complaint Based Upon

Sovereign Immunity for Discretionary Functions.” The county argues the

circuit court erred in denying the county’s motion where the plaintiff’s

amended complaint: (1) alleged the county was negligent in its

discretionary planning-level functions; and (2) did not allege the county

created the alleged known dangerous condition which was the subject of

the plaintiff’s action.

We agree with the county’s arguments. We reverse the circuit court’s

order, and remand for the circuit court to enter a final order granting the

county’s motion to dismiss and dismissing the county from the action with

prejudice.

A. The Plaintiff’s Amended Complaint

The plaintiff’s amended complaint contained the following general

allegations. In 2018, the plaintiff’s minor child was riding a bicycle on a

path along a major street in the Town of Davie when the child approached

a work site being maintained by an independent water control district. At

the work site, a waste company’s dumpsters had been placed in the bike

path, causing the child to leave the bike path and travel on the street. The

child was then struck by a vehicle driving down the street. As a result,

the child suffered severe and permanent injuries.

The plaintiff’s amended complaint alleged separate negligence counts

against the vehicle’s driver, the waste company, the water control district,

the town, and the county. The plaintiff’s specific allegations against the

county were as follows:

72. On the date of the accident[,] [the county] was responsible

for monitoring worksites within its boundaries and

assuring that all safety measures are taken in accordance

with town and county ordinances.

73. [The county] negligently failed to assure that all safety

guidelines [were] put in place to protect citizens when

public rights of way are affected.

74. [The county’s] negligent supervision contributed to

creating a dangerous environment that ultimately led to

the subject accident that led to the severe permanent

injuries suffered by [the child].

.…

76. The [c]ounty knew or should have known of the work

being conducted within its county limits.

77. … [A]s per City of St. Petersburg v. Collom, [419 So. 2d

1082 (Fla. 1982),] … [the county] owed a duty to protect

the public against known dangers or hazards.

78. [The county] breached its duty by failing to protect the

public against the foreseeable hazard created by the

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worksite and work being conducted within its

boundaries.

79. [The county’s] breach was a proximate cause that led to

the severe and permanent injuries suffered by [the child].

80. The negligence of … [the county] consisted of the

following:

[a.] Negligently failing to assure that traffic was redirected

due to the blockage of the pedestrian walkway.

[b.] Negligently failing to assure the use [of] traffic control

devices given that a pedestrian walkway was blocked

because of its work.

[c.] Negligently failing [to] assure that additional workers

were on site to spot and[/]or direct traffic and

pedestrians.

[d.] Negligently failing to assure that precautions were

taken to avoid foreseeable injuries to pedestrians

using the subject right of way.

(paragraph 80’s subparagraph enumeration corrected).

B. The County’s Motion to Dismiss and the Circuit Court’s Ruling

The county filed a “Motion to Dismiss the Amended Complaint Based

Upon Sovereign Immunity for Discretionary Functions” with an

incorporated memorandum of law. The county pertinently argued:

The [county] is not alleged to have been physically present

at the location of the worksite and accident, nor actively

participating in the … operations. The [c]ounty is not alleged

to have interacted with the plaintiff, the other defendants, or

otherwise undertook some operational level action(s) involving

the “project” or the “worksite.” Rather, all of the negligence

allegations directed toward the [county] are in the form of

“failures” to act.

These allegations can be fairly characterized as claiming

the [c]ounty was negligent because it was not there and did

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not involve itself in the project to ensure regulations were

followed. The [p]laintiff is attempting to attach liability to the

[c]ounty based upon a theory that the [c]ounty’s failure to

enforce unspecified regulations over the defendants who were

actively involved in the project, states a cognizable cause of

action. The [county] owed no duty of care specifically or

personal to the [p]laintiff as a matter of clearly established and

longstanding Sovereign Immunity law. This case must be

dismissed with prejudice because the only duties here are

duties owed to the public as a whole. The [county] is also

sovereignly immune from suit for failing to enforce, or police

the unspecified regulations of paragraph 80 of the complaint.

…

[T]he “failures” or omissions alleged against the county are

all discretionary functions for which the [c]ounty is

sovereignly immune from suit. The issue of whether the

[c]ounty could be liable for its failure to enforce laws,

ordinances or regulations as framed in the complaint … has

been conclusively determined in the negative by the Florida

Supreme Court in the case of Trianon Park Condo. Assoc. v.

City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985) (finding that

“certain discretionary functions of government are inherent in

the act of governing and are immune from suit[”]).

After a hearing, the circuit court orally denied the county’s motion to

dismiss, reasoning, “I reviewed … the amended complaint, and I do find

the allegations sufficient. They were sufficiently pled. The arguments

raised by the county … are great for a summary judgment but not at this

stage of litigation.”

After the circuit court’s oral ruling, the following discussion occurred

between the county’s attorney and the circuit court:

COUNTY ATTORNEY: Judge, I’m going to prepare the order

and I just want to make sure that I correctly reflected your

ruling. The Court is … finding that the county is not entitled

to sovereign immunity at this juncture and the motion is

therefore denied …?

COURT: Motion is denied, the allegations in the amended

complaint are sufficiently pled ….

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COUNTY ATTORNEY: And what [t]he Court finding is that the

county is not entitled to sovereign immunity at this juncture.

COURT: … I didn’t say that.

COUNTY ATTORNEY: … Judge, I need the record to reflect

directly if … [you] denied our motion on sovereign immunity

grounds because it’s an appealable issue.

….

COURT: The motion is denied for the reason stated on the

record, sir. Thank you.

The circuit court later entered a written order stating it had denied the

county’s motion to dismiss for the reasons stated on the record.

C. This Appeal

This appeal followed. The county argues the circuit court erred in

denying the county’s sovereign immunity-based motion to dismiss where

the plaintiff’s amended complaint: (1) alleged the county was negligent in

its discretionary planning-level functions; and (2) did not allege the county

created the alleged known dangerous condition which was the subject of

the plaintiff’s action.

The plaintiff raises three responses: (1) the county did not preserve any

alleged error because the county’s motion to dismiss primarily argued the

county owed no duty to the child, and “only briefly mention[ed] how

sovereign immunity may apply”; (2) even if the county raised a sovereign

immunity argument, the circuit court’s nonfinal order denying the

county’s motion to dismiss was not appealable under Florida Rule of

Appellate Procedure 9.130, because the circuit court’s ruling did not

address the county’s sovereign immunity argument; and (3) the circuit

court properly did not address the county’s sovereign immunity argument

because such an argument, when raised in a motion to dismiss, was

premature.

We agree with the county’s arguments. We address the county’s

arguments and the plaintiff’s responses in turn.

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1. The plaintiff’s amended complaint alleged the county was

negligent in its discretionary planning-level functions, thus

entitling the county to sovereign immunity.

Section 768.28, Florida Statutes (2018), partially waives a

governmental entity’s sovereign immunity for tort actions. However, as

our supreme court has held, this limited waiver applies only to the

governmental entity’s operational functions, not the governmental entity’s

discretionary planning-level functions:

The separation-of-powers provision present in article II,

section 3 of the Florida Constitution requires that certain

quasi-legislative policy-making, planning or judgmental

governmental functions cannot be the subject of traditional

tort liability. On the other hand, decisions made at the

operational level—decisions or actions implementing policy,

planning, or judgmental governmental functions—generally

do not enjoy sovereign immunity. Planning level functions are

generally interpreted to be those requiring basic policy

decisions, while operational level functions are those that

implement policy.

Sch. Bd. of Broward Cnty. v. McCall, 322 So. 3d 655, 657 (Fla. 4th DCA

2021) (internal citations, brackets, and quotation marks omitted); see also

Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1022 (Fla. 1979)

(a governmental entity’s discretionary functions “may not be subjected to

scrutiny by judge or jury as to the wisdom of their performance”).

Accordingly, to overcome the county’s sovereign immunity, a complaint

must allege “acts at an operational level.” Cutler v. City of Jacksonville

Beach, 489 So. 2d 126, 128 (Fla. 1st DCA 1986). However, where a

complaint pleads matters that implicate only the “planning level of

decision-making,” Banta v. Rosier, 399 So. 2d 444, 445 (Fla. 5th DCA

1981), the complaint cannot survive a motion to dismiss.

Here, the plaintiff’s amended complaint implicated only the county’s

discretionary planning-level functions, and therefore the amended

complaint should not have survived the county’s motion to dismiss.

The amended complaint’s paragraphs 80.a. and 80.b. respectively

alleged the county negligently failed to “assure that traffic was redirected

due to the blockage of the pedestrian walkway” and “assure the use [of]

traffic control devices given that a pedestrian walkway was blocked

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because of its work.” However, in Department of Transportation v. Neilson,

419 So. 2d 1071 (Fla. 1982), our supreme court held: “[D]ecisions relating

to the installation of appropriate traffic control methods and devices … are

discretionary decisions which implement the entity’s police power and are

judgmental, planning-level functions.” Id. at 1077. The Neilson court also

held a governmental entity cannot be liable for its failure to “upgrade and

reconstruct the intersection and install additional traffic control devices to

meet present needs.” Id. at 1078. Thus, the county’s decisions not to

redirect traffic or require traffic control devices at the worksite were

discretionary planning-level functions which cannot subject the county to

tort liability.

The amended complaint’s paragraphs 72, 73, and 80.d. respectively

alleged the county negligently failed to “assur[e] that all safety measures

[were] taken in accordance with town and county ordinances,” “assure that

all safety guidelines [were] put in place to protect citizens when public

rights of way are affected,” and “assure that precautions were taken to

avoid foreseeable injuries to pedestrians using the subject right of way.”

However, in Carter v. City of Stuart, 468 So. 2d 955 (Fla. 1985), our

supreme court held these types of alleged omissions also are discretionary:

“The amount of resources and personnel to be committed to the

enforcement of [an] ordinance was a policy decision of the [governmental

entity]. The [governmental entity] has the right to set its priorities in

reference to law enforcement.” Id. at 957; see also Trianon Park Condo.

Ass’n v. City of Hialeah, 468 So. 2d 912, 919 (Fla. 1985) (city’s decision

whether “to enforce compliance with the law, as well as the authority to

protect the public safety” was a matter of “discretionary power” and “a

matter of governance”). Thus, the county’s decisions whether to enforce

compliance with the law at locations like the worksite were discretionary

planning-level functions which cannot subject the county to tort liability.

The amended complaint’s paragraphs 74 and 80.c. respectively alleged

the county’s “negligent supervision contributed to creating a dangerous

environment that ultimately led to the subject accident,” and the county

negligently failed to “assure that additional workers were on site to spot

and[/]or direct traffic and pedestrians.” However, in McCall, we held that

a governmental entity could not be liable for failing to require adequate

security because the development of a security plan is a discretionary,

planning-level function. McCall, 322 So. 3d at 659; see also Delgado v.

City of Miami Beach, 518 So. 2d 968, 969 (Fla. 3d DCA 1988) (“The manner

in which a city, through its police officers, exercises discretionary authority

to enforce compliance with the laws and protect the public safety, falls

squarely within the city’s power to govern.”); Sanchez v. Miami-Dade Cnty.,

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245 So. 3d 933, 938 (Fla. 3d DCA 2018) (“The decisions of the County

regarding where and how to deploy its available manpower (sworn police

officers) is a discretionary or planning function.”). Thus, the county’s

decisions not to supervise the worksite or require additional workers or

police to direct traffic and pedestrians at the worksite were discretionary

planning-level functions which cannot subject the county to tort liability.

2. The plaintiff’s amended complaint did not allege the county

created the alleged known dangerous condition which was the

subject of the plaintiff’s action, thus the county did not lose

its sovereign immunity.

In the case cited within paragraphs 76-79 of the amended complaint’s

count against the county, City of St. Petersburg v. Collom, 419 So. 2d 1082

(Fla. 1982), our supreme court’s complete holding was that “when a

governmental entity creates a known dangerous condition,” that creation

gives rise to the operational duty to “warn the public of, or protect the

public from, the known danger.” Id. at 1083 (underlining added). The

Collom court reasoned “it is only logical and reasonable to treat the failure

to warn or correct a known danger created by government as negligence

at the operational level.” Id. at 1086; see also Marion v. City of Boca Raton,

47 So. 3d 334, 337 (Fla. 4th DCA 2010) (interpreting Collom and Neilson

to say that “the government has both a duty to warn of dangerous

conditions created by it, as well as the duty to properly maintain existing

traffic control devices”) (underlining added).

Following Collom, we and our sister courts also have held governmental

entities did not lose their sovereign immunity against tort liability where

the governmental entities did not create the known danger. See Orlando

v. Broward Cnty., Fla., 920 So. 2d 54, 58 (Fla. 4th DCA 2005) (school board

had sovereign immunity, even where it knew of hazardous walking routes

and children’s deaths surrounding a school, because, among other

reasons, the school board “did not create the dangerous condition”); Cutler,

489 So. 2d at 127-28 (city had sovereign immunity from suit alleging the

city failed to provide sufficient lifeguards at a beach location where a child

drowned because the city did not create the dangerous condition which

caused the child to drown); Barrera v. State Dep’t of Transp., 470 So. 2d

750, 751-52 (Fla. 3d DCA 1985) (Department of Transportation had

sovereign immunity from suit arising from a truck’s collision with a low-

clearance bridge where the Department did not design or build the bridge).

Like the cases cited above, here the amended complaint’s paragraphs

75-79 failed to allege the county created the alleged known, dangerous

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condition at the worksite. Thus, the county cannot be subject to tort

liability for its alleged failure to warn of or correct that danger.

3. The plaintiff’s responses lack merit.

The plaintiff’s first response, that the county did not preserve any

alleged error because the county’s motion to dismiss primarily argued the

county owed no duty to the child, and “only briefly mention[ed] how

sovereign immunity may apply,” lacks merit. As can be seen from our

excerpt of the county’s motion to dismiss (see section B above), although

the county argued it owed no duty to the child, the county equally argued

that sovereign immunity applied. Even if the county had designated the

duty argument as its “primary” argument and the sovereign immunity

argument as “secondary” (which it did not, nor was it required to), the

county’s sovereign immunity argument in its motion to dismiss was as

specific as necessary to preserve that argument for appeal. See Sunset

Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“[T]o be

preserved for further review by a higher court, an issue must be presented

to the lower court and the specific legal argument or ground to be argued

on appeal or review must be part of that presentation if it is to be

considered preserved.”) (citation and quotation marks omitted).

The plaintiff’s second response, that the circuit court’s nonfinal order

denying the county’s motion to dismiss is not appealable under Florida

Rule of Appellate Procedure 9.130 because the circuit court’s ruling did

not address the county’s sovereign immunity argument, also lacks merit.

Rule 9.130’s pre-January 23, 2020 version permitted an appeal of a

nonfinal order which “determine[d] … that, as a matter of law, a party [was]

not entitled to [sovereign] immunity under section 768.28(9), Florida

Statutes.” Fla. R. App. P. 9.130(a)(3)(C)(x) (2019). However, on January

23, 2020, which preceded the county’s appeal here, our supreme court

replaced rule 9.130(a)(3)(C)(x) with rule 9.130(a)(3)(F)(iii), to permit an

appeal of a nonfinal order which “den[ied] a motion that … assert[ed]

entitlement to sovereign immunity.” Fla. R. App. P. 9.130(a)(3)(F)(iii). The

supreme court reasoned former rule 9.130(a)(3)(C)(x) “insufficiently

protect[ed] the public and governmental interests served by sovereign

immunity” because it relied “too heavily on the trial court’s articulation of

what it has decided.” Fla. Hwy. Patrol v. Jackson, 288 So. 3d 1179, 1186

(Fla. 2020). Instead, the newly-created rule 9.130(a)(3)(F)(iii) refocuses an

appellate court’s jurisdictional inquiry “not on the challenged order, but

rather on the motion that the order adjudicates.” City of Sweetwater v.

Pichardo, 314 So. 3d 540, 542 (Fla. 3d DCA 2020).

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Thus, here, the circuit court’s decision not to address the county’s

sovereign immunity argument when it denied the county’s motion to

dismiss was jurisdictionally irrelevant. Instead, we have focused on

whether the county’s motion to dismiss “asserted entitlement to sovereign

immunity.” Fla. R. App. P. 9.130(a)(3)(F)(iii). As stated above, the county’s

motion sufficiently asserted such entitlement.

The plaintiff’s third response, that the circuit court properly did not

address the county’s sovereign immunity argument because such an

argument, when raised in a motion to dismiss, was premature, also lacks

merit. Rule 9.130(a)(3)(F)(iii), on its face, does not limit the scope of

sovereign immunity-based motions from which an appeal may be taken.

Thus, the county’s motion to dismiss asserting entitlement to sovereign

immunity was not premature.

Conclusion

Based on the foregoing, we reverse the circuit court’s nonfinal order

denying the county’s motion to dismiss, and remand for the circuit court

to enter a final order granting the county’s motion to dismiss and

dismissing the county from the underlying action with prejudice.

Reversed and remanded with instructions.

MAY and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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