Florida Dept. of Highway Safety and Motor Vehicles v. Fortes—(Per Curiam Logue, Scales & Hendon; 3DCA; 1/25/23).
This is a wrongful death case about sovereign immunity. In Florida, a governmental entity is not immune from liability where a member of its police force fails to use reasonable care in the performance of an operational level function. It is immune, however, if the action was due to a “planning level function,” which is a function requiring basic policy decisions. Operational level functions are those that merely implement or carry out existing policy. Without further explanation, the DCA affirmed the lower court’s holding that the police officer’s action in question constituted operational acts, not planning acts, and so the department did not enjoy sovereign immunity. The DCA also noted that it would not review the portion of the same order denying summary judgment on the element of duty. Even though the sovereign immunity part of the order was reviewable, the portion of the order denying summary judgment on the element of duty was an interlocutory order that could not be appealed prior to a final order. Affirmed in part, dismissed in part.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC