CITY OF MIAMI v. LYN M. ROBINSON

Third District Court of Appeal

State of Florida

Opinion filed May 31, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-0972

Lower Tribunal No. 19-5993

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City of Miami,

Appellant,

vs.

Lyn M. Robinson,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, William Thomas, Judge.

Victoria Méndez, City Attorney, and Eric J. Eves, Assistant City

Attorney, for appellant.

The Gutierrez Firm, and Jorge P. Gutierrez, Jr.; Philip D. Parrish, P.A.,

and Philip D. Parrish, for appellee.

Before FERNANDEZ, C.J., and SCALES and BOKOR, JJ.

BOKOR, J.

Appellee Lyn M. Robinson sued the City of Miami for negligence as a

result of an automobile accident with a City of Miami-owned vehicle driven

by a City employee, Fire-Rescue Lieutenant Karen Salinas. The City

answered and asserted sovereign immunity pursuant to section 768.28,

Florida Statutes. Robinson propounded discovery, the City failed to respond

to the discovery, and Robinson moved for sanctions. Eventually, 1 the trial

court struck the City’s answer and affirmative defenses. One of the

purported affirmative defenses asserted sovereign immunity under Florida

Statute section 768.28. The City did not appeal the order striking the

pleadings. But the City sought summary judgment, arguing that sovereign

immunity may be raised at any time, and barred the suit against the City.

The trial court disagreed and denied the City’s motion. The City appeals. 2

Because sovereign immunity acts as a prudential bar to suit under the

circumstances present, we agree with the City and reverse.

1

The initial trial judge conducted an evidentiary hearing and subsequently

struck the City’s pleadings. A successor judge reconsidered and struck the

sanctions. A second successor judge reimposed the sanctions. We do not

address the propriety of sanctions for the conduct alleged, as the sanctions

order is not before us on appeal.

2

We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(F)(ii). “We review the

court’s denial of the City’s motion for summary judgment based on sovereign

immunity de novo.” City of Fort Lauderdale v. Nichols, 246 So. 3d 391, 392

(Fla. 4th DCA 2018) (citing Town of Gulf Stream v. Palm Beach County, 206

So. 3d 721, 725 (Fla. 4th DCA 2016)).

2

In Florida, “sovereign immunity is the rule, rather than the exception.”

Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). The

State may waive sovereign immunity, but any waiver of sovereign immunity

must be “clear and unequivocal.” Rabideau v. State, 409 So. 2d 1045, 1046

(Fla. 1982). Florida Statutes section 768.28 clearly and unequivocally

provides for waiver of sovereign immunity in certain tort actions against a

governmental entity. Specifically, section 768.28 waives sovereign immunity

for tort liability for the State and its subdivisions, including municipalities, “but

only to the extent specified in this act.” § 768.28(1), Fla. Stat. Such waiver

permits:

Actions at law against the state or any of its agencies or subdivisions

to recover damages in tort for money damages against the state or its

agencies or subdivisions for injury or loss of property, personal injury,

or death caused by the negligent or wrongful act or omission of any

employee of the agency or subdivision while acting within the scope

of the employee’s office or employment 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, may be prosecuted subject to the limitations specified in this

act.

Id. (emphasis added). Specifically addressing the course and scope

requirement in a separate section of the statutory provision, the statute

further provides that:

The state or its subdivisions are not liable in tort for the acts or

omissions of an officer, employee, or agent committed while

acting outside the course and scope of her or his employment or

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committed in bad faith or with malicious purpose or in a manner

exhibiting wanton and willful disregard of human rights, safety, or

property.

§ 768.28(9), Fla. Stat. (emphasis added).

This court explained that conduct occurs within the course and scope

of employment only if “(1) the conduct is the kind the employee is hired to

perform, (2) the conduct occurs substantially within the time and space limits

authorized or required by the work to be performed, and (3) the conduct is

activated at least in part by a purpose to serve the master.” Sussman v. Fla.

E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla. 3d DCA 1990) (citations

omitted). Relevant to this appeal is the second prong of the course and

scope test, specifically, whether the conduct occurred within the time and

space limits of the work required. The City argued that, under the “going and

coming” rule, because the employee was traveling to work at the time of the

accident, she was not acting within the time and space constraints of her

employment. See Swartz v. McDonald’s Corp., 788 So. 2d 937, 942 (Fla.

2001) (“The ‘going and coming’ rule provides that injuries sustained while

traveling to or from work do not arise out of and in the course of employment,

and, therefore, are not compensable.”).

Applying the “going and coming” concept to the course and scope

requirement of section 768.28(9), the City argues that, since the accident

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occurred outside the scope of employment, sovereign immunity shields the

City from a tort claim based on the employee’s alleged negligence. 3 The trial

court didn’t disagree with the City’s legal analysis but nonetheless denied

the City’s motion for summary judgment, finding a “genuine dispute as to

whether the City’s employee, a Fire Rescue Officer, was off duty at the time

of the car accident.” A review of the record, however, reveals no such

dispute. 4

3

In other contexts, the dangerous instrumentality doctrine may obviate the

need to determine whether an employee was on the way to work where, as

here, the employer provided the vehicle. See Robelo v. United Consumers

Club, Inc., 555 So. 2d 395, 396–97 (Fla. 3d DCA 1989) (explaining that under

the dangerous instrumentality doctrine an employer may be held “liable for

injuries caused by the employee in an accident occurring while the employee

is in transit to the office if the employer provides transportation to and from

the workplace”). But the express language of the sovereign immunity statute

waives such immunity only where the employee acts within the course and

scope of the employment and includes no exception for a dangerous

instrumentality. See Rabideau, 409 So. 2d at 1046 (“Any waiver of sovereign

immunity must be clear and unequivocal.”); Arnold v. Shumpert, 217 So. 2d

116 (Fla. 1968); Spangler v. Fla. State Tpk. Auth., 106 So. 2d 421 (Fla.

1958). Had the legislature intended to accept vicarious responsibility for the

operation of state vehicles while in use for nonstate purposes, we believe it

would have expressly so provided.

4

Florida adopted the federal summary judgment standard, effective May 1,

2021. In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72, 77 (Fla.

2021). This standard “mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element essential

to that party's case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

5

If the record evinced a factual dispute regarding the “going and

coming” rule, this appeal would likely end with every appellee’s favorite three

letters in the Florida appellate lexicon, “PCA.” But the operative complaint

makes no claim that the employee was on duty at the time of the accident,

and, more importantly, Robinson presents no summary judgment evidence

to create an issue of fact to that effect. The City presents the only relevant

piece of admissible evidence in support of its motion for summary judgment.

Relying on, and citing to, the employee’s deposition, which the City properly

filed in support, the City’s motion for summary judgment explains that “[a]t

the time of the car accident, Lt. Salinas was off duty.” In her deposition, the

employee states that she “was heading to work” at the time of the accident.

Robinson doesn’t contest or counter the evidence that the employee was off

duty, on her way to work at the time of the accident. Instead, Robinson’s

response to the City’s motion for summary judgment relies on one

argument—the same argument she makes before this court—that because

the trial court struck the City’s answer and affirmative defenses, the City

couldn’t assert sovereign immunity.

In her answer brief before this court, Robinson commendably

“confesses error as to the denial of the Motion for Summary Judgment based

upon disputed issues of material fact, as to the applicability of the going and

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coming rule.” Robinson asks us to rely on the tipsy coachman doctrine and

affirm the trial court based on the stricken pleadings. But this argument

misses the mark for two important reasons. First, “[s]ummary judgment is

designed to test the sufficiency of the evidence to determine if there is

sufficient evidence at issue to justify a trial or formal hearing on the issues

raised in the pleadings.” The Fla. Bar v. Greene, 926 So. 2d 1195, 1200

(Fla. 2006). A trial court must grant summary judgment where “it is apparent

from the pleadings, depositions, affidavits, or other evidence that there is no

genuine issue of material fact and the moving party is entitled to relief as a

matter of law.” Id. Robinson proffered no evidence at summary judgment

from which the trial court could conclude that the accident occurred during

the course and scope of employment. The only record evidence presented

established that the employee was on her way to work at the time of the

accident. “Where there are no factual disputes, whether an employee is

acting within the course and scope of his employment is a question of law.”

Peterson v. Cisco Sys., Inc., 320 So. 3d 972, 973 (Fla. 2d DCA 2021)

(citations omitted); see also Sussman, 557 So. 2d at 76 (noting that whether

an employee was acting within the scope of their employment is a question

of law when there is no factual dispute).

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Second, and perhaps more important conceptually, Robinson

misconstrues the role of sovereign immunity. Sovereign immunity bars a

claim against a governmental entity, with exception for claims brought under

the federal or state constitutions, claims based on a “clear and unequivocal”

legislative waiver of sovereign immunity, or contractual claims based on an

express, written agreement with a governmental entity. Univ. of Fla. Bd. of

Trs. v. Rojas, 351 So. 3d 1167, 1170 (Fla. 1st DCA 2022). Because

sovereign immunity is the rule, not the exception, it stands to reason that a

party bringing a suit in tort against a governmental entity bears the initial

burden of showing a recognized exception to sovereign immunity.

The fact that the trial court struck the City’s defenses changes nothing.

Much like subject matter jurisdiction, sovereign immunity isn’t an affirmative

defense, and it can be raised at any time. State, Dep't of Highway Safety &

Motor Vehicles, Div. of Highway Patrol v. Kropff, 491 So. 2d 1252, 1254 n.1

(Fla. 3d DCA 1986); see also Schmauss v. Snoll, 245 So. 2d 112, 113 (Fla.

3d DCA 1971) (“A state’s immunity from suit relates to subject matter

jurisdiction, and is not an affirmative defense. Lack of jurisdiction over the

subject matter may be raised at any time. . . .”) (citation omitted); Sebring

Utils. Comm’n v. Sicher, 509 So. 2d 968, 969 (Fla. 2d DCA 1987)

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(“[G]overnmental immunity is not an affirmative defense, but is jurisdictional

and may be raised at any time.”).

Here, Robinson alleged damages resulting from an automobile

accident and pointed to a general waiver of sovereign immunity for tort

claims pursuant to Florida Statutes section 768.28, and further alleged

compliance with notice provisions under the same. This provides a general

allegation of statutory waiver of sovereign immunity for tort claims. But in

the motion for summary judgment based on sovereign immunity, the City

asserts sovereign immunity, based on the fact that sovereign immunity

provides that “[t]he state or its subdivisions are not liable in tort for the acts

or omissions of an officer, employee, or agent committed while acting outside

the course and scope of her or his employment.” § 768.28(9), Fla. Stat. The

City supports the assertion of sovereign immunity by offering facts,

undisputed and unrebutted by Robinson, establishing that the accident

occurred outside the employee’s course and scope of employment. The

City’s motion for summary judgment rebutted the general allegation of waiver

of sovereign immunity. The City presented a factual predicate establishing

nonwaiver of sovereign immunity under sections 768.28(1) and 768.28(9).

Robinson failed to establish, at a minimum, an issue of fact regarding the

applicability of sovereign immunity to the factual predicate. Robinson

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concedes, no such factual dispute exists. To the contrary, the only evidence

before the court establishes that the employee was on her way to work (not

at work), and the going and coming rule applies. The accident occurred

while the employee acted outside the course and scope of her employment.

Because no factual dispute exists, the trial court should have granted

summary judgment in favor of the City. Accordingly, we reverse and remand

with instructions to grant the City’s motion for summary judgment on the

basis of sovereign immunity and enter final judgment in favor of the City.

Reversed and remanded with instructions.

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