Davis v. Baez , 208 So. 3d 747 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed November 09, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-13
Lower Tribunal No. 13-6081
________________
Londan Davis,
Appellant,
vs.
Neftali Baez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.
Brill Rinaldi Garcia and David W. Brill (Weston); Joel S. Perwin, for
appellant.
Walter J. Harvey and John-Philip M. Iafelice; Haliczer Pettis & Schwamm
and Debra P. Klauber and Eugene K. Pettis (Fort Lauderdale), for appellee.
Before SALTER, EMAS and FERNANDEZ, JJ.
EMAS, J.
INTRODUCTION
Londan Davis, the plaintiff below, appeals from the trial court’s entry of
final summary judgment in favor of Neftali Baez, the defendant below and an
employee of the Miami-Dade County School Board. The trial court determined
that sovereign immunity barred Davis’ claim against Baez for individual
negligence, as pleaded in Count II of the operative complaint. We reverse, and
hold that the trial court erred in entering summary judgment on Davis’ individual
negligence claim, as there remain disputed issues of material fact as to whether
Baez acted in a manner that would place him beyond the protection of sovereign
immunity and render him individually liable to Davis.
FACTS
At all relevant times, Londan Davis was an eighteen-year-old student at
Sunset Senior High School in Miami-Dade County. She was struck by a car while
crossing from the west side of the street to reach the school bus stop on the east
side of the street. At the time of the accident (5:50 a.m.) it was dark outside, and
the bus had not yet arrived at the bus stop on the east side of the street. Davis
suffered serious injuries and she sued, among others, the Miami-Dade County
School Board and Neftali Baez, a school bus driver employed by the School Board.
2
In her operative complaint, Davis alleged, inter alia, that Baez and the
School Board were negligent for failing to instruct Davis and her brother1 to wait
on the west side of the street (the street being Northeast 18th Avenue) until the bus
arrived at the designated bus stop, halted traffic, activated its red flashing lights
and extended its “STOP” arm, thereby allowing Davis and her brother to safely
cross from the west side of the street to east side of the street. The issue on appeal
involves only Count II of the complaint, which sets forth a claim of individual
negligence against Davis only. Count II alleged, in pertinent part, that:
● Baez, the school bus driver, “on his own initiative, took it upon himself to
advise the Davis children that he was going to be picking them up. . . on the
east side of the road way, necessitating Plaintiff. . . to cross NE 18th
Avenue.”
● Baez failed to instruct Plaintiff and her brother to wait on the west side of
the street for the bus to arrive and to cross only after the bus arrived,
stopped, and activated its red flashing lights and extended its stop arm.
● Baez required Davis and her brother to cross the street before the bus
arrived, even though Baez knew or should have known that it would be
dangerous for Davis to do so.
In his discovery deposition, Baez acknowledged that he affirmatively told
Davis and her brother that they could not wait on the west side of the street; that he
told them they were required to cross the street and be waiting on the east side of
1 Londan Davis’ sixteen-year-old brother had already crossed to the east side of the
street at the time his sister was struck and injured. Ms. Davis’ brother is not a
party to the action.
3
the street before the bus arrived; and that if Davis and her brother were not already
waiting on the east side of the street when the bus arrived, Baez would not wait for
them to cross and would not pick them up.
Ms. Kathryn Beasley is the Bus Route Manager for Miami-Dade County
Public Schools, and is in charge of establishing and reviewing bus stops, bus
routes, and overseeing bus drivers. She testified in deposition that the Davis
children were not only permitted to wait on the west side of the street until the bus
arrived, but that the proper procedure is that the Davis children are supposed to
wait on the west side of the street until the bus arrived. Only after the bus arrived
and stopped, with its red lights flashing and its STOP arm extended, should the
Davis children cross to the east side of the street. Ms. Beasley testified that Baez’s
instructions to Davis and her brother was contrary to School Board policy and
contrary to bus driver training.
Ms. Theodosia Davis is a Field Operations Specialist for Miami-Dade
County Public Schools, and is a first-level supervisor for bus drivers and for
receiving and resolving complaints from parents and school personnel. Ms. Davis
agreed with Ms. Beasley that students are permitted to wait on the other side of the
street for the bus to arrive and should cross the street to get to the bus stop only
after the bus has arrived and activated its lights and STOP arm to permit safe
crossing. Ms. Davis testified that she would not tell a student (as Baez did) that
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they are required to cross the street and be waiting at the stop before the bus
arrives; that there is no reason to tell a student this; and that if she became aware of
such a practice, she would take the necessary steps to correct it. Ms. Davis
testified she could not think of any action that would be more dangerous to the
students than telling them that they were required to cross the street before the bus
arrived.
During her deposition, Ms. Davis was shown a copy of the Miami-Dade
County Public Schools’ “Handbook for School Bus Drivers, Aides and Operations
Staff” and affirmed that this Handbook provided in part: “Students must cross the
road only in front of the bus when traffic has been halted by means of the flashing
red lights and stop arm extended.” She indicated that this procedure should be
followed when students are waiting on one side of the street and the bus arrives on
the opposite side of the street.
Another bus driver, Ms. Monica Smith, testified that the students are not
supposed to cross the street until the bus arrives and turns on its lights and extends
the STOP arm. Ms. Smith testified that she has never instructed students to cross
the street before the bus arrives at the stop.
The Prior Appeal of the Order Dismissing the School Board
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The School Board moved to dismiss the counts against it and Baez, asserting
that both were sovereignly immune from tort liability and that the complaint failed
to state a cause of action against the School Board because the School Board did
not owe a duty of care to Davis at the time of the injury, nor a duty to warn her of
the roadway’s dangerousness. The trial court granted the motion to dismiss, but
only as to the School Board, and only on the issue of duty. All claims against the
School Board (both direct and vicarious) were dismissed with prejudice and Davis
appealed that decision to this court. Davis v. City of Homestead, 154 So. 3d 443
(Fla. 3d DCA 2014) (Davis I). The only issue on appeal in Davis I was whether
the trial court erred in ruling that the School Board owed no duty to Davis. This
court affirmed the trial court’s decision per curiam, citing to Francis v. School
Board of Palm Beach County, 29 So. 3d 441 (Fla. 4th DCA 2010).2
Baez answered Davis’ complaint below, asserting several affirmative
defenses, including sovereign immunity pursuant to section 768.28(9)(a), Florida
Statutes. Thereafter, Baez moved for summary judgment, arguing he was entitled
to summary judgment because the appellate court in Davis I had affirmed the trial
court’s determination that the School Board, and by extension, Baez, owed no duty
to Davis, and also argued that he was immune from liability under the sovereign
2 Appellant concedes that, as a result of our affirmance in Davis I, no cause of
action remains against the School Board, and the only remaining cause of action
she can pursue is Count II of the operative complaint, alleging individual
negligence by Baez.
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immunity statute because (1) the location of the bus stop was a planning-level
decision of the School Board; (2) Baez did not “undertake” a duty to Davis while
she was within Baez’s physical custody or control; and (3) Baez was acting in the
course and scope of his employment and Davis cannot show bad faith, malicious
purpose, or willful and wanton disregard.
After a hearing, the trial court granted Baez’s motion for summary judgment
on both the duty and the sovereign immunity issues, and entered judgment. This
appeal followed, and we review de novo the trial court’s granting of summary
judgment. See Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126
(Fla. 2000). In doing so, we must view the record and reasonable inferences
therefrom in a light most favorable to the nonmoving party, and any doubt
concerning the existence of a disputed issue of material fact must be resolved
against the moving party. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000); Colon
v. Outback Steakhouse of Fla., Inc., 721 So. 2d 769 (Fla. 3d DCA 1998).
Law of the case
The trial court determined that Davis could not proceed on Count II alleging
individual negligence against Baez, under the apparent belief that such a
conclusion was compelled by our decision in Davis I. Baez urges us to affirm this
determination, contending that our decision in Davis I constitutes law of the case
and forecloses Davis’ negligence action against Baez individually. While Davis I
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is indeed law of the case, we do not agree that our decision in that prior appeal
forecloses the individual negligence claim against Baez, which is premised upon
allegations that Baez acted outside the scope of his employment or acted in bad
faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of the safety of Davis. These allegations, if proven, would constitute an
exception to the sovereign immunity afforded to employees and agents of the
School Board, permitting personal liability against Baez.
Davis I did not involve the question of sovereign immunity; instead the trial
court’s order (affirmed by us) was based solely on a finding that the School Board
owed no duty to Davis. The reason no duty was owed is that, as the Fourth District
held in Francis, 29 So. 3d at 444, the “school board does not have custody or
control over students while they are en route to their bus stops” and thus “the
school board does not have any duty to its students during this time.”3 Because
Davis was not on the bus or within the custody or control of the School Board (or
3 See also Harrison v. Escambia Cnty. School Bd., 434 So. 2d 316, 319 (Fla. 1983)
(holding “[a]s a general rule, if a public school entity provided transportation for
its pupils, it owes a duty of care with regard to that transportation. School boards,
however, are not insurers of students’ safety, . . . and a school board’s control over
its students regarding transportation extends from when a school bus picks up a
student at a bus stop to the school door. When a student is injured before reaching
a designated bus stop, or after leaving one, that student is outside the board’s duty
of care because the board’s duty stems from the fact of the school board’s physical
custody of its students” ) (internal citations omitted).
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its employees) at the time of the accident, there was no duty of care owed by the
School Board to Davis.
Therefore, while our affirmance of that order did determine that the School
Board (and by extension, Baez) owed no duty to Davis based upon the fact that she
was not on the bus or otherwise within the physical custody or control of the
School Board at the time of the accident, our affirmance did not address or
determine whether Baez could be held individually liable if, as alleged in Count II
of the complaint, he voluntarily undertook to act, thereby creating a separate duty
owed to Davis. Further, and as alleged in Count II, such individual liability could
be imposed upon Baez only if, in undertaking to act, Baez did so in a manner that
would place him beyond the protection of sovereign immunity and render him
personally liable under section 768.28(9)(a). Upon our review of the record, we
determine that genuine issues of material fact remain in dispute on this question,
thereby precluding summary judgment on Count II of the complaint.
Sovereign Immunity and Personal Liability
We begin with the sovereign immunity statute, section 768.28(9)(a), which
provides in relevant part:
(9)(a) No officer, employee, or agent of the state or of any of its
subdivisions shall be held personally liable in tort or named as a party
defendant in any action for any injury or damage suffered as a result
of any act, event, or omission of action in the scope of her or his
employment or function, unless such officer, employee, or agent acted
in bad faith or with malicious purpose or in a manner exhibiting
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wanton and willful disregard of human rights, safety, or property. . . .
The exclusive remedy for injury or damage suffered as a result of an
act, event, or omission of an officer, employee, or agent of the state or
any of its subdivisions or constitutional officers shall be by action
against the governmental entity, or the head of such entity in her or his
official capacity, or the constitutional officer of which the officer,
employee, or agent is an employee, unless such act or omission was
committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard. The state or its subdivisions
shall not be 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 committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. (Emphasis added).
As can be seen, sovereign immunity is conferred upon Baez, as a School
Board employee, so long as he acted in the scope of his employment and did not
act in bad faith, or with malicious purpose, or in a manner exhibiting wanton and
willful disregard of human rights, safety, or property. Reading this provision in
conjunction with the allegations of the complaint and the record evidence in
opposition to Baez’s motion for summary judgment, it is clear that there remain
disputed issues of material fact that must be resolved by the trier of fact. There is
record evidence that:
• Baez did not merely fail to instruct Davis and her brother to wait on the
west side of the street for the bus to arrive and to cross only after the bus
arrived, stopped, and activated its red flashing lights and extended its stop
arm. Instead, Baez, on his own initiative, told Davis that she and her brother
were required to cross the street and be waiting for the bus when it arrived at
the bus stop, and that if they were not already there and waiting when the
bus arrived, he would not wait for them to cross the street;
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• This “requirement” by Baez was contrary to express School Board policy
and bus driver training, by which Davis and her brother should have waited
on the west side of the street until the bus arrived and stopped, with its red
lights flashing and its stop arm extended, to permit safe crossing of the street
by Davis and her brother;
• The Field Operations Specialist for Miami-Dade County Public Schools
acknowledged that Baez should not have advised Davis and her brother of
this “requirement,” that there is no reason to tell a student this; and that if
she had been aware of Baez’s action, she would take the necessary steps to
correct it. The Field Operations Specialist could not think of any action that
would be more dangerous to the students than telling them that they were
required to cross the street before the bus arrived.
Thus, while it may be true that ordinarily the School Board (and by
extension, Baez) would not owe a duty to Davis before she was actually on the bus
(see Davis I, affirming with citation to Francis 154 So. 3d at 443), there remains
the question whether, by voluntarily undertaking to act, in requiring Davis and her
brother to cross the street before the bus arrived, Baez created a foreseeable zone
of risk for Davis, and thereby owed a duty to Davis.
The Undertaker Doctrine
The most recent decision of the Florida Supreme Court addressing the nature
and scope of the undertaker doctrine is Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009).
In Wallace, a wrongful death action was filed by the mother of Brenda Wallace
against the Marion County Sheriff’s Office. The complaint alleged4 that the
mother had attempted several times to call Brenda at home, but there was no
4The facts as alleged in the complaint are taken from the district court opinion.
See Wallace v. Dean, 970 So. 2d 864, 865-66 (Fla. 5th DCA 2007).
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answer. The mother called a neighbor to check on Brenda. The neighbor went to
the house and knocked on the doors and windows, but there was no response. The
neighbor then called 911. Two deputies responded to the 911 call. One of the
deputies entered the home through an unlocked window, and then opened the door
for the other deputy, the neighbor, and the neighbor’s father to enter the home.
The deputies found Brenda Wallace inside the home, breathing but otherwise
unresponsive, even when one of the deputies attempted to awaken her by calling
her name loudly and shaking one of her legs. The neighbor and the neighbor’s
father suggested to the deputies that Ms. Wallace was in a diabetic coma and that
the deputies should call an ambulance, but the deputies declined to call an
ambulance or summon any medical assistance. Instead, the deputies suggested that
the neighbor leave the door unlocked and return to check on her later. The next
morning, the neighbor found Brenda Wallace unresponsive and again called 911.
Emergency medical personnel responded to the call and transported Ms. Wallace
to the hospital, where she died several days later without ever regaining
consciousness.
The complaint alleged that the deputies’ actions in undertaking a safety
check, engaging with Ms. Wallace, and thereafter failing to take any additional
action (e.g., calling an ambulance) placed Ms. Wallace in a zone of risk, either by
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increasing the risk of harm to Ms. Wallace or inducing third parties (who otherwise
would have rendered aid) to forebear from doing so.
The trial court dismissed the complaint on the grounds that the deputies and
the Sheriff’s Office did not owe a common-law duty of care to Ms. Wallace, and
that by responding to the 911 call and conducting a safety check, the deputies were
performing a discretionary function for which the Sheriff’s Office (and the
deputies) were sovereignly immune. The Fifth District affirmed the trial court’s
dismissal of the complaint.
The Florida Supreme Court quashed the district court decision, holding that
under the facts as alleged in the complaint, the deputies owed Ms. Wallace a duty
of care pursuant to the undertaker doctrine. The Wallace court observed, 3 So. 3d
at 1050:
This Court has long adhered to the common-law doctrine that
[i]n every situation where a man undertakes to act, or to
pursue a particular course, he is under an implied legal
obligation or duty to act with reasonable care, to the end
that the person or property of others may not be injured
by any force which he sets in operation, or by any agent
for which he is responsible. If he fails to exercise the
degree of caution which the law requires in a particular
situation, he is held liable for any damage that results to
another, just as if he had bound himself by an obligatory
promise to exercise the required degree of care.... [E]ven
“where a man interferes gratuitously, he is bound to act
in a reasonable and prudent manner according to the
circumstances and opportunities of the case.”
13
Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896
(1932) (citations omitted) (emphasis supplied) (citing 1
Thomas A. Street, Foundations of Legal Liability 92
(1906)) (quoting Flint & Walling Mfg. Co. v. Beckett,
167 Ind. 491, 79 N.E. 503, 506 (1906)).
The Wallace court reaffirmed the continued vitality of this well-entrenched
principle quoting from its previous decision in Union Park Memorial Chapel v.
Hutt, 670 So. 2d 64, 66-67 (Fla. 1996):
Voluntarily undertaking to do an act that if not accomplished with due
care might increase the risk of harm to others or might result in harm
to others due to their reliance upon the undertaking confers a duty of
reasonable care, because it thereby “creates a foreseeable zone of
risk.”
Wallace, 3 So. 3d at 1050.
In the instant case, Baez told Davis that she could not wait on the west side
of the street and cross to the east side of the street after the bus arrived. Instead,
Baez told Davis that she was required to cross the street and be waiting at the bus
stop when the bus arrived, and that if she and her brother were not on the east side
when the bus arrived, he would not pick him up. By undertaking to act in this way,
Baez increased the risk of harm to Davis, and by following Baez’s “required”
procedure, Davis and her brother would be crossing the street without the safety
provided by the presence of a bus with its flashing lights and its STOP arm
extended. Baez’s “required” procedure was contrary to School Board policy,
contrary to bus driver training, and even the School Board’s Field Operations
14
Specialist stated she could not think of any action that would be more dangerous to
the students than telling them that they were required to cross the street before the
bus arrived.
We hold that the allegations and the evidence support the application of the
undertaker doctrine and the conclusion that, by voluntarily undertaking to act and
affirmatively telling Davis she was required to cross the street and be waiting at the
bus stop when the bus arrived, Baez created a foreseeable zone of risk to Davis and
was under a duty to act with reasonable care under the circumstances.
Our conclusion comes with this proviso: As a result of our holding in Davis
I, it has been determined that the School Board (and by extension, Baez) did not
generally owe a common-law duty to Davis, because she was not on the bus or
otherwise within the physical custody or control of the School Board at the time of
the accident. Thus, the only count remaining in the instant case is a single count
for the individual negligence of Baez. So, although the general facts of this case
permit application of the undertaker doctrine, individual negligence as to Baez can
be established only if, as alleged in Count II and as required by section
768.28(9)(a), Davis can prove that Baez’s actions were outside the course and
scope of his employment or were committed in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human rights, safety, or
property.
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CONCLUSION
The allegations of Count II, together with the depositions and other record
evidence presented in opposition to Baez’s motion for summary judgment,
establish that there remain material facts in dispute regarding Davis’ claim for
individual negligence against Baez. Our decision in Davis I established, as law of
the case, that the School Board cannot be held liable, either directly or vicariously,
based upon the absence of a duty owed by the School Board to Davis. However,
Davis is not foreclosed from pursuing Count II of the complaint, which alleged
individual liability against Baez for negligence, based upon the undertaker
doctrine. By undertaking to act (i.e., by advising Davis and her brother that they
were required to cross the street before the bus arrived at the bus stop), Baez was
under a duty to act with reasonable care. Baez could be found personally liable if
Davis can establish that Baez breached that duty and that, in doing so, Baez acted
outside the scope of his employment or acted in bad faith or with malicious
purpose or in a manner exhibiting wanton and willful disregard of human rights,
safety, or property. Reversed and remanded.
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