Third District Court of Appeal
                             State of Florida

                         Opinion filed June 6, 2018.

                            ________________

                             No. 3D15-2167
                       Lower Tribunal No. 14-24237
                           ________________


                         Miami-Dade County,
                                 Appellant,

                                     vs.

                               Noel Pozos,
                                 Appellee.



    An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.

      Abigail Price-Williams, Miami-Dade County Attorney, and Eric K.
Gressman, Joni A. Mosely and Sabrina Levin, Assistant County Attorneys, for
appellant.

     Beckham & Beckham, P.A., and Robert J. Beckham, Jr., and Pamela
Beckham, for appellee.

Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.

 ON MOTION FOR REHEARING, CLARIFICATION, OR CERTIFICATION


     PER CURIAM.
Denied.

SUAREZ and EMAS, JJ., concur.




                                2
                                                 Miami-Dade County v. Noel Pozos
                                                            Case No. 3D15-2167


      ROTHENBERG, C.J. (dissenting from the denial of the motion for
rehearing and rehearing en banc).

      Noel Pozos seeks damages for injuries he sustained as a result of being shot

by an unidentified assailant while at a teenager’s birthday party at Benito Juarez

Park (“the Park”) in Homestead, Florida. The one-count complaint alleges that

Miami-Dade County (“the County”) owned, controlled, maintained, and operated

the park; Pozos was an invitee on the premises when he was shot; the County

assumed the duty to provide reasonable safety to Pozos; and the County breached

that duty by failing to provide reasonable safety measures and security personnel to

control, patrol, and guard against dangerous activity and/or to warn Pozos and

others of the potential danger.

      The County filed a motion for summary judgment asserting that: (1) the

County did not have a duty to prevent the misconduct of third persons or to enforce

the law for the benefit of specific individuals; and (2) sovereign immunity bars this

action. After conducting an evidentiary hearing, the trial court denied the County’s

motion for summary judgment.

      The majority concludes that this Court lacks jurisdiction under rule

9.130(a)(3)(C)(xi) to review the trial court’s order in the instant case because the

trial court “did not declare, make a finding, or otherwise determine that, as a matter


                                          3
of law, the County was not entitled to sovereign immunity or immunity under

section 768.29(9).”    I agree with the majority that, unless the trial court has

determined as a matter of law that the County is not entitled to sovereign

immunity, this Court lacks jurisdiction to review the trial court’s order denying the

County’s motion for summary judgment.            However: (1) I disagree with the

majority’s interpretation of rule 9.130(a)(3)(C)(xi); (2) the case law does not

support the majority’s position; (3) the majority’s interpretation of the rule will

lead to an absurd result; and (4) the record clearly establishes that sovereign

immunity bars this action as a matter of law. Because the trial court’s order

denying the County’s motion for summary judgment constituted a legal

determination that the County was not entitled to sovereign immunity, we have

jurisdiction to review and to reverse the trial court’s order denying the County’s

motion for summary judgment. I, therefore, respectfully dissent from the majority

opinion dismissing the trial court’s order for lack of jurisdiction.

      I am additionally writing to address the issuance of orders by some trial

judges on motions to dismiss and motions for summary judgment based on

sovereign immunity arguments which do not specify the basis for the denial,

thereby frustrating the actual purpose behind the amendment to rule 9.130, which

was to provide for interlocutory review of non-final orders that determine whether

a party is sovereignly immune from suit as a matter of law.



                                           4
                                     ANALYSIS

I. Jurisdiction under rule 9.130(a)(3)(C)(xi)

      I begin with the Florida Supreme Court’s direction for interpreting

procedural rules. In Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 

, 742 (Fla. 2010), the Florida Supreme Court held that “[p]rocedural

rules should be given a construction calculated to further justice, not to frustrate

it.” (quoting Singletary v. State, 

, 555 (Fla. 1975)).

      Rule 9.130(a)(3)(C)(xi) provides as follows: “Appeals to the district courts

of appeal of non-final orders are limited to those that . . . determine . . . that, as a

matter of law, a party is not entitled to sovereign immunity.”           The majority

interprets this rule as including the requirement that an order “expressly”

determine entitlement to sovereign immunity, although the word “expressly” does

not appear anywhere in the rule. In reaching this interpretation the majority: (1)

relies on this Court’s opinion in Citizens Property Insurance Corp. v. Sosa, 

90 (Fla. 3d DCA 2016), wherein this Court found it had no jurisdiction to

address Citizens’ interlocutory appeal because the record unequivocally reflected

that the trial court did not even reach the issue of sovereign immunity; (2) avoids

addressing the language found in two Florida Supreme Court cases that conflict

with the majority’s interpretation of the rule; and (3) relies on case law involving

workers’ compensation immunity, which, as will be discussed in this opinion,

differs from sovereign immunity.
                                           5
      A. Sosa

      In Sosa, Citizens moved to strike the bad-faith allegations in the complaint

and to dismiss and/or strike counts II and III based on Citizens’ sovereign

immunity as a matter of law from bad-faith claims. Sosa, 

at 91.

However, as this Court noted in its opinion, the record reflected that the trial court

did not even reach the issue of sovereign immunity when it denied Citizens’

motion to dismiss. 

trial court abated or stayed any action on those

counts, and abated any consideration of Citizens’ claim of sovereign immunity

until the issues of coverage and liability were resolved. 

wisdom

of the trial court’s ruling is certainly questionable because sovereign immunity

should be addressed at the earliest opportunity, this Court clearly lacked

jurisdiction to review the trial court’s interlocutory order because the trial court did

not consider, much less determine, Citizens’ claim of sovereign immunity.

Because the trial court did not rule on Citizens’ sovereign immunity claim in Sosa,

the majority’s reliance on Sosa in support of its conclusion is misplaced.

B. The Florida Supreme Court

      (1) Beach Community Bank

      The majority’s interpretation of rule 9.130(a)(3)(C)(xi) is also in conflict

with the Florida Supreme Court’s interpretation of the rule. In Beach Community

Bank v. City of Freeport, Florida, 150
                                           

(Fla. 2014), the Florida Supreme Court accepted jurisdiction to review

the First District Court of Appeal’s opinion in City of Freeport v. Beach

Community Bank, 

(Fla. 1st DCA 2013). The City of Freeport

moved to dismiss the complaint based on its sovereign immunity from suit. The

trial court issued an order denying the City’s motion to dismiss. A review of the

record before the First District and the Florida Supreme Court reflects that the

order in question merely stated that the City’s “Motion to Dismiss with Prejudice

is denied and Defendant shall file a responsive pleading within 20 days of the

date of this Order.” (emphasis added). Importantly, the order denying the motion

to dismiss did not state that the trial court had determined, as a matter of law, that

the City was not entitled to sovereign immunity.

      The City filed a petition for writ of certiorari to review the non-final order

on the basis that the City was entitled to sovereign immunity as a matter of law and

thus the trial court departed from the essential requirements of law by denying its

motion to dismiss. City of 

. The First District agreed

with the City, granted certiorari relief, and granted the petition. 

to

the Florida Supreme Court, the original question was whether the District Court

could exercise certiorari jurisdiction to review the trial court’s non-final order.

Beach Cmty. 

.           However, because the Florida Bar

Appellate Court Rules Committee’s proposed amendment to rule 9.130 was

pending before the Florida Supreme
                                          7
Court and the Court concluded that “this case falls squarely within the new rule

amendment,” the Court determined “that the City should be entitled to the benefit

of the new rule.” 

Specifically, the Court held that the proposed

amendment “answers the question that the City asks this Court to confront in this

case. This amendment permits district courts to review non-final orders of

decisions determining entitlement to sovereign immunity where the case

involves a pure legal question.” 

      Importantly, although the trial court’s order simply denied the City’s motion

to dismiss, ordered the City to file responsive pleadings within twenty days, and

did not include the language that the denial of the motion to dismiss on the basis of

sovereign immunity was a denial as a matter of law, the First District nevertheless

reviewed the order and determined that the City was entitled to sovereign

immunity, and the Florida Supreme Court reviewed the same order and agreed.

Beach Cmty. 

. Thus, the Florida Supreme Court quashed

the First District’s decision to the extent that it resolved the issue based on

certiorari review, but approved the decision based on the amendment to rule 9.130

and issued its opinion on the very same day that it approved the amendment to rule

9.130. 

      (2) Keck

      The Florida Supreme Court’s opinion in Keck v. Eminisor, 

(Fla. 2012), also suggests that the
                                         8
majority’s interpretation of rule 9.130(a)(3)(C)(xi) is incorrect. In Keck, the trial

court issued an order denying Keck’s motion for summary judgment based on his

claim of immunity under section 786.28(9)(a). Keck sought review, but because

rule 9.130 had not yet been amended to permit interlocutory appeals of trial court

orders denying summary judgment, Keck petitioned the First District for a writ of

certiorari. 

. Because the First District concluded that

certiorari review was not proper, it denied the petition without addressing the

merits of the petition. 

District, however, certified a question to the

Florida Supreme Court; the Florida Supreme Court accepted jurisdiction; and the

Court rephrased the certified question as follows:

       Should review of the denial of a motion for summary judgment based
       on a claim of individual immunity under section 768.28(9)(a), Florida
       Statutes, await the entry of a final judgment in the trial court to the
       extent that the order turns on an issue of law.

       In answering the certified question, the Florida Supreme Court noted that in

Tucker v. Resha, 

(Fla. 1994), the Court had “examined whether

to expand the category of non-final appealable orders to include orders denying

summary judgment based on a qualified immunity claim,” and because of the

nature of the rights involved, the Court concluded that interlocutory review must

be available to an individual whose claim of qualified immunity was denied by the

trial court. 

                                         9
The Court specifically noted that:

      Because qualified immunity of public officials involves immunity
      from suit rather than a mere defense to liability, we reasoned that
      immunity from suit is effectively lost if a case is erroneously
      permitted to go to trial because a trial court’s order denying
      qualified immunity cannot be reviewed on appeal from a final
      judgment as the public official cannot be re-immunized if
      erroneously required to stand trial or face the other burdens of
      litigation.

(internal quotations omitted) (citing 

)

(emphasis added). The Florida Supreme Court went on to say that, in Tucker,

      [w]e stressed that if orders denying summary judgment based upon
      claims of qualified immunity are not subject to interlocutory review,
      the qualified immunity of public officials is illusory and the very
      policy that animates the decision to afford such immunity is thwarted.
      We held that an order denying summary judgment based upon a claim
      of qualified immunity should be subject to interlocutory review to the
      extent that the order turns on an issue of law.

(internal quotations and citations omitted).

      The Florida Supreme Court in Keck, therefore, concluded that:

      [I]f a defendant who is entitled to the immunity granted in section
      768.28(9)(a) is erroneously named as a party defendant and is
      required to stand trial, that individual has effectively lost the right
      bestowed by statute to be protected from even being named as a
      defendant. If orders denying summary judgment based on claims
      of individual immunity from being named as a defendant under
      section 768.28(9)(a) are not subject to interlocutory review, that
      statutory protection becomes essentially meaningless for the
      individual defendant.
             For the above reasons, we answer the rephrased question in the
      negative and hold that an order denying summary judgment based
      on a claim of individual immunity under section 768.28(9)(a) is
      subject to interlocutory review where the issue turns on a question
      of law.
                                        10


(emphasis added).

         Based on the Florida Supreme Court’s ruling in Keck, Justice Pariente, in

her concurring opinion, recommended that the Florida Bar Appellate Court Rules

Committee submit a proposed amendment and that when it addressed the rule

amendment, that it do so more broadly to address interlocutory appeals of

immunity claims in a comprehensive manner. 

         While I recognize that in Keck the Florida Supreme Court was addressing

individual immunity under section 768.28(9)(a), rather than sovereign immunity,

Justice Pariente asked the Florida Bar Appellate Court Rules Committee to address

interlocutory appeals of immunity claims in a comprehensive manner, and rule

9.130(a)(3)(C)(xi) was amended in direct response to Justice Pariente’s request. It

also makes no sense to treat orders that deny an individual’s immunity any

differently than orders that deny an entity’s immunity. In both instances, the

defendant who is entitled to immunity as a matter of law should not be forced to

litigate the plaintiff’s claims simply because the trial court issues an unelaborated

order.

C. The majority’s reliance on cases involving workers’ compensation
     immunity
  is misplaced

         In support of its argument that the trial court must expressly state in its non-

final order that it is determining, as a matter of law, that a party is not entitled to


                                            11
sovereign immunity, the majority relies on cases addressing workers’

compensation immunity under rule 9.130(a)(3)(C)(v). Rule 9.130(a)(3)(C)(v)

states that a party may appeal a non-final order determining “that, as a matter of

law, a party is not entitled to workers’ compensation immunity.” The Florida

Supreme Court, in construing rule 9.130(a)(3)(C)(v), has stated that “[n]onfinal

orders denying summary judgment on a claim of workers’ compensation immunity

are not appealable unless the trial court order specifically states that, as a matter of

law, such a defense is not available to a party.” Hastings v. Demming, 

, 720 (Fla. 1997) (emphasis added); Reeves v. Fleetwood Homes of Fla., Inc.,

, 821 (Fla. 2004) (stating that “a district court does not have

jurisdiction to review a nonfinal order denying summary final judgment unless the

trial court’s order explicitly states that the defendant will not be entitled to present

a workers’ compensation immunity defense at trial”) (emphasis added).

      This case law is highly distinguishable, as is rule 9.130(a)(3)(C)(v). Unlike a

claim for entitlement to sovereign immunity, workers’ compensation immunity

is an affirmative defense, involving factual issues that typically preclude a

dismissal at the pleading stage. See Gen. Cinema Beverages of Miami, Inc. v.

Mortimer, 

, 277 (Fla. 3d DCA 1995) (“Establishment of workers’

compensation immunity usually requires the employer to bring forth facts from

outside the four corners of the complaint, which necessarily requires a motion for

summary judgment.”); Eiler v. Camp
                                          12
Dresser & McKee, Inc., 

, 442 (Fla. 5th DCA 1989) (stating that “the

exclusivity provision set forth in section 440.11 of the Workers’ Compensation Act

is an affirmative defense which cannot be raised by a motion to dismiss unless the

allegations of a prior pleading in the case demonstrate the existence of such a

defense”); see also Ruiz v. Aerorep Grp. Corp., 

, 508 (Fla. 3d DCA

2006) (“Although workers’ compensation immunity usually cannot be raised in a

motion to dismiss, an exception exists allowing the defense to be raised in a motion

to dismiss where the defense appears on the face of the complaint.”).

      Thus, in the context of an order denying, without explanation, a motion that

is premised on the affirmative defense of workers’ compensation immunity, it may

be difficult to determine whether the trial court denied a party’s claim for workers’

compensation immunity due to factual issues that must be resolved prior to

adjudicating the legal issue of immunity, or whether the trial court determined, as a

matter of law, that a party is not entitled to the workers’ compensation immunity.

      There are, however, cases outside of the workers’ compensation context,

where a trial court can determine, as a matter of law, whether a defendant is

entitled to sovereign immunity, and where it is not necessary to resolve factual

issues.

      Additionally, even in the workers’ compensation immunity context, at least

one of our sister courts has raised a significant concern about parties and trial

courts intentionally obfuscating the real
                                         13
justifications for orders denying a party’s claim for workers’ compensation

immunity. In Martin Electronics, Inc. v. Glombowski, 

(Fla. 1st DCA

1997) (en banc), the First District Court of Appeal held that it lacked appellate

jurisdiction to review a non-final order denying a motion to dismiss. 

The

trial court below determined that there were insufficient facts to decide the issue of

workers’ compensation immunity, but specifically noted that “[t]his determination

does not mean that this Court may not ultimately be presented with sufficient facts

to determine this issue as a matter of law.” 

On appeal, the majority

opinion held, in applying the Florida Supreme Court’s decision in Hastings, that a

non-final order denying a motion to dismiss based on workers’ compensation

immunity must expressly determine, as a matter of law, that workers’

compensation immunity is unavailable. 

However, Judge Wolf,

specially concurring, raised a significant concern regarding appeals from orders

denying motions to dismiss, as opposed to orders denying motions for summary

judgment, which deny a party’s claim for workers’ compensation immunity:

      In these cases, there can be no disputed facts. The decision concerning
      the motion must assume that all the facts in the complaint are taken as
      true and all inferences are drawn in favor of the plaintiff. Thus, the
      denial of the motion cannot be based on disputed facts, but must
      constitute a legal ruling on a given set of facts.

(citation omitted).




                                         14
       Thus,    any    analogy     between       rule   9.130(a)(3)(C)(xi)     and    rule

9.130(a)(3)(C)(v) and reliance on cases addressing workers’ compensation law is

unpersuasive.

D. The majority’s interpretation of the rule will lead to an absurd result

       In 

, the Florida Supreme Court held that “an order

denying summary judgment based on a claim of individual immunity under

section 768.28(9)(a) is subject to interlocutory review where the issue turns on

a question of law.” (emphasis added). The Court did not say, nor hold, that

interlocutory review should be limited to orders that expressly specify the basis for

the trial court’s ruling. If it is clear that a trial court’s denial of a motion to dismiss

or a motion for summary judgment is a determination that, as a matter of law, a

party is not entitled to sovereign immunity, then the order is subject to appellate

review.

       To hold otherwise would defeat the purpose of the amendment to rule 9.130.

See 

(holding that “[p]rocedural rules should be given a

construction calculated to further justice, not to frustrate it”) (quoting 

). The purpose behind amending rule 9.130 to include rule

9.130(a)(3)(C)(xi) was to protect parties who are entitled to sovereign immunity

from suit as a matter of law. To construe rule 9.130(a)(3)(C)(xi) so narrowly as to

require a party to continue litigating a case when, as a matter of law, it is

sovereignly immune from suit, would
                                            15
render the rule change meaningless. As the Florida Supreme Court stated in 

:

      [I]f a defendant who is entitled to the immunity granted in section
      768.28(9)(a) is erroneously named as a party defendant and is
      required to stand trial, that individual has effectively lost the right
      bestowed by statute to be protected from even being named as a
      defendant. If orders denying summary judgment based on claims of
      individual immunity from being named as a defendant under section
      768.28(9)(a) are not subject to interlocutory review, that statutory
      protection becomes essentially meaningless for the individual
      defendant.
             For the above reasons, we answer the rephrased question in the
      negative and hold that an order denying summary judgment based on
      a claim of individual immunity under section 768.28(9)(a) is subject
      to interlocutory review where the issue turns on a question of law.

(emphasis added).

      In order for a party’s entitlement to sovereign immunity to provide any

meaningful protection, the party must have the ability to challenge the trial court’s

determination that, as a matter of law, it is not entitled to immunity before and

without being required to defend itself against the merits of the claims.

      The majority concludes that, because the trial court’s order does not

articulate the basis for its ruling, there could be a number of reasons why the trial

court denied the County’s motion for summary judgment.            For example, the

majority posits that there may have been disputed issues of material fact precluding

summary judgment. While I agree that the record may support a finding that there

are disputed issues of material fact as to whether the County owed Pozos a duty of

care, the record does not suggest that
                                         16
there were disputed issues of material fact as to whether the County is sovereignly

immune from suit.       Thus, the determination as to whether the County is

sovereignly immune from suit is a legal determination, not a factual determination,

in this case.

E. The majority and the trial court conflate the questions of duty and
sovereign
   immunity

       As will be discussed at length below, whether a governmental entity may be

held tortiously liable involves a two-prong analysis: (1) whether the defendant

owes a duty of care to the plaintiff; and (2) whether the defendant is sovereignly

immune from suit. Wallace v. Dean, 

, 1044 (Fla. 2009). Thus, even

if there were disputed issues of material fact as to whether the County owed Pozos

a duty of care, if there were no disputed issues of material fact regarding the

immunity prong, and the undisputed evidence reflects that the County is entitled to

sovereign immunity as a matter of law, then the trial court was required to grant

the County’s motion for summary judgment, and this Court has jurisdiction to

review the trial court’s determination to the contrary.

       When addressing the issue of governmental tort liability under Florida law,

the court’s “duty analysis is conceptually distinct from any later inquiry regarding

whether the governmental entity remains sovereignly immune from suit

notwithstanding the legislative waiver present in section 768.28, Florida Statutes.”

(emphasis in
                                          17
the original) (footnote omitted). The analysis is a two-prong analysis. “If no duty

of care is owed with respect to alleged negligent conduct, then there is no

governmental liability, and the question of whether the sovereign should be

immune from suit need not be reached.” Pollock v. Fla. Dep’t of Highway Patrol,

, 932 (Fla. 2004); see also Breaux v. City of Miami Beach, 

1059, 1063 (Fla. 2005) (noting that “[i]n cases involving governmental tort

liability, we generally determine whether the defendant owes a duty of care to the

plaintiff before we address whether the governmental entity is immune from

liability”); Clay Elec. Coop., Inc. v. Johnson, 

, 1185 (Fla. 2003)

(identifying “duty of care” as the first required element of a negligence claim);

Henderson v. Bowden, 

, 535 (Fla. 1999) (“A threshold matter is

whether the [defendant] had a duty to act with care toward the decedents . . . .”).

“[T]he absence of a duty of care between the defendant and the plaintiff results in

a lack of liability, not application of immunity from suit.” 

(emphasis in original). In other words, the absence of a duty of care renders

the defendant not liable as a matter of law, and the trial court does not need to

address whether the governmental entity is sovereignly immune from suit.

.

      The same holds true for sovereign immunity. If the defendant is sovereignly

immune from suit, then the trial court need not address whether the defendant

owed the plaintiff a duty of care because
                                        18
the analysis has two-prongs. Even where the plaintiff has established the existence

of the governmental entity’s duty of care towards the plaintiff, or there are material

issues of disputed fact as to the governmental entity’s duty of care, if the

governmental entity is entitled to sovereign immunity, it is shielded from legal

action and liability. 

; see also 

(concluding that even “[a]ssuming a duty is owed, we must then determine

whether sovereign immunity bars an action for an alleged breach of that duty”).

      In 

, the Florida Supreme Court warned against

conflating the two separate prongs of the analysis, and noted that in Miami-Dade

County v. Fente, 

, 1103-05 (Fla. 3d DCA 2007), and Seguine v.

City of Miami, 

, 17 (Fla. 3d DCA 1993), this Court had conflated the

issue of whether the government owed a duty of care to the plaintiff with the

separate and distinct issue of whether the doctrine of sovereign immunity shields

the government from tort liability. See also City of Belle Glade v. Woodson, 

(Fla. 4th DCA 1999) (similarly conflating duty of care with sovereign

immunity). The record demonstrates that the County established under the second

prong of the analysis that, as a matter of law, it is sovereignly immune from suit.

Thus, the issue of whether the County owed Pozos a duty of care is immaterial and

the trial court erred by denying the County’s motion for summary judgment.

II. The County is entitled to sovereign immunity as a matter of law

      A. Generally
                                         19
      Under the two-prong analysis, the County is immune from liability if the

County establishes either that it owed Pozos no duty of care or the County

demonstrates that it is sovereignly immune from suit.            In Trianon Park

Condominium Ass’n v. City of Hialeah, 

(Fla. 1985), the Florida

Supreme Court issued a comprehensive opinion regarding governmental actors and

alleged tort victims. 

. To summarize, the Trianon Court

made the following findings.

      1. First, “for there to be governmental tort liability, there must be
         either an underlying common law or statutory duty of care with
         respect to the alleged negligent conduct. For certain basic
         judgmental or discretionary governmental functions, there has
         never been an applicable duty of care.” 

         (internal citations omitted).
      2. Second, “the enactment of the statute waiving sovereign immunity
         did not establish any new duty of care for governmental entities.”
         

entities have the identical duties of care as
         private persons do. 

“there is not now, nor has there ever been any common law
         duty for either a private person or a governmental entity to enforce
         the law for the benefit of an individual or a specific group of
         individuals. In addition, there is no common law duty to prevent
         the misconduct of third persons.” 

      4. Fourth, “under the constitutional doctrine of separation of powers,
         the judicial branch must not interfere with the discretionary
         functions of the legislative or executive branches of government
         absent a violation of constitutional or statutory rights.” 

Court held that “[j]udicial intervention through
         private tort suits into the realm of discretionary decisions relating
         to basic governmental functions would require the judicial branch
         to second guess the political and police power decisions of the
         other branches of government and would violate the separation of
         powers doctrine.” 

“certain discretionary functions of government are inherent
         in the act of governing and are immune from suit. It is ‘the nature
                                        20
          of the conduct, rather than the status of the actor,’ that determines
          whether the function is the type of discretionary function which is,
          by its nature, immune from tort liability.” 

          omitted).

      The Florida Supreme Court’s finding that “certain discretionary functions of

government are inherent in the act of governing and are immune from suit” is,

perhaps, the most difficult finding to apply, especially since the demarcation

between discretionary and other executive or administrative decisions must be

determined on a case-by-case basis. 

Court set forth a list of criteria to

assist the courts when determining whether the governmental conduct eminates

from the discretionary planning or the judgment phase of government, which is not

subject to tort liability, or during the operational phase of government. If the

governmental conduct or decision was operational, tort liability may attach if there

exists either a common law or statutory duty of care and there exists no sovereign

immunity for the governmental conduct or decision. 

categories regarding governmental functions are as follows:

      I.      Legislative, Permitting, Licensing, and Executive Officer
      Functions.
             Clearly, the legislature, commissions, boards, city councils, and
      executive officers, by their enactment of, or failure to enact, laws or
      regulations, or by their issuance of, or refusal to issue, licenses,
      permits, variances, or directives, are acting pursuant to basic
      governmental functions performed by the legislative or executive
      branches of government. The judicial branch has no authority to
      interfere with the conduct of those functions unless they violate a
      constitutional or statutory provision. There has never been a common
      law duty establishing a duty of care with regard to how these various
      governmental bodies or officials should carry out these functions.
                                          21
These actions are inherent in the act of governing.

II. Enforcement of Laws and Protection of the Public Safety.
       How a governmental entity, through its officials and
employees, exercises its discretionary power to enforce compliance
with the laws duly enacted by a governmental body is a matter of
governance, for which there never has been a common law duty of
care. This discretionary power to enforce compliance with the law, as
well as the authority to protect the public safety, is most notably
reflected in the discretionary power given to judges, prosecutors,
arresting officers, and other law enforcement officials, as well as the
discretionary authority given fire protection agencies to suppress fires.
This same discretionary power to enforce compliance with the law is
given to regulatory officials . . . .

       The lack of a common law duty for exercising a discretionary
police power function must, however, be distinguished from existing
common law duties of care applicable to the same officials or
employees in the operation of motor vehicles or the handling of
firearms during the course of their employment to enforce compliance
with the law. In these latter circumstances there always has been a
common law duty of care and the waiver of sovereign immunity now
allows actions against all governmental entities for violations of those
duties of care.

III. Capital Improvement and Property Control Functions.
       As this Court has made clear in prior cases, there is no liability
for the failure of a governmental entity to build, expand, or modernize
capital improvements such as buildings and roads. . . . On the other
hand, once a governmental entity builds or takes control of property or
an improvement, it has the same common law duty as a private person
to properly maintain and operate the property.

IV. Providing Professional, Educational, and General Services.
       Providing professional, educational, and general services for the
health and welfare of citizens is distinguishable from the discretionary
power to enforce compliance with laws passed under the police power
of this state. These service activities, such as medical and educational
services, are performed by private persons as well as governmental
entities, and common law duties of care clearly exist. Whether there
are sufficient doctors provided to a state medical facility may be a
                                   22
      discretionary judgmental decision for which the governmental entity
      would not be subject to tort liability. Malpractice in the rendering of
      specific medical services, however, would clearly breach existing
      common law duties and would render the governmental entity liable
      in tort.

(italics in original; internal citations omitted).

      In Wallace, the Florida Supreme Court explained that the activities listed in

Category I pertain to the public at large, and thus, they do not support a duty of

care toward individual plaintiffs. 

The same is true for activities falling

within Category II, unless it can be shown that the governmental actor owed the

alleged tort victim a “special duty of care.” 

On the other hand,

Category III and IV activities may generally subject the government to liability.

      B. Sovereign Immunity

      As stated earlier, even where a duty is owed, sovereign immunity may bar an

action for an alleged breach of that duty, see 

;

; 

, because in Florida,

“governmental immunity derives entirely from the doctrine of separation of

powers, not from a duty of care or from any statutory basis.” 

.

      When addressing the test for determining when a governmental entity enjoys

sovereign immunity, the Florida Supreme Court held “that the separation-of-

powers provision present in article II,
                                           23
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.”’    

(quoting

Commercial Carrier Corp. v. Indian River Cty., 

, 1020 (Fla.

1979)). 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. Commercial 

. “Planning level functions are generally interpreted to be those requiring

basic policy decisions, while operational level functions are those that implement

policy.” 

      While nearly every endeavor involves some level of discretion, it is the

governmental quasi-legislative discretion exercised at the policy-making or

planning level which is protected from tort liability. 

;

. Thus, in addition to the five basic principles identified

by the Florida Supreme Court in Trianon, which have been listed at the beginning

of this analysis, the Court recognized that “there were areas of government activity

where orthodox tort liability stops and the act of governing begins, . . . as well as

the distinct principle of law . . . which makes not actionable in tort certain

judgmental decisions of governmental authorities which are inherent in the act of

governing.” 

(internal citations and quotation marks

omitted). Further, “certain discretionary
                                           24
governmental functions remain immune from tort liability . . . because certain

functions of coordinate branches of government may not be subjected to scrutiny

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

and

quotation marks omitted).

      C. Applying the Law to the Instant Case

      Even if the trial court found that the County owed Pozos a duty of care or

that there were material facts in dispute or facts that needed to be resolved by the

jury as to duty, if the County’s conduct, actions, or decisions resulted from its

discretionary policy-making or planning functions, then the County is sovereignly

immune from suit as a matter of law.

      The record reflects the following.       On August 24, 2012, Eli Salgado

purchased a Miami-Dade County Park Foundation membership for $149. This

membership included a coupon book containing several promotional items,

including two tickets to the zoo, a 50% discount coupon for golf, and a coupon for

the use of a park shelter without payment of the requisite rental fee. Along with

Salgado’s membership and the coupon booklet, Salgado was given a copy of the

Park’s rules and regulations to be followed when renting a facility at the Park.

These rules contained a section regarding when permits and off-duty officers are

required, and provided notice to Salgado that it was his responsibility to obtain the

correct permit(s) and to hire off-duty police officers under certain circumstances.

For example, these rules provided that
                                         25
when a D.J., live music, or speakers are going to be used, the person renting the

facility or hosting the event at the Park must obtain a broadcast permit and hire and

pay for off-duty police officers. Depending on the type or size of the party or

event, other permits are required, and again, Salgado must hire off-duty police

officers to provide security for the event. Specifically, the rules and regulations

provided that if Salgado was expecting over a certain number of guests, then he

would be required to hire two off-duty police officers and obtain a special events

permit. The rules and regulations additionally stated that the Park’s employees

would not be responsible for providing any of these items.

      When Salgado rented a shelter at the Park for his September 22, 2012

birthday party, he simply asked to rent the shelter and used the free rental coupon

contained in his membership coupon booklet. He did not advise anyone that he

was going to hire a D.J., and he did not obtain any permits or hire any off-duty

police officers.   Instead, he procured two private security officers to provide

security at the party.

      The only Park employee present for this after-hours private party was

Diogenes Martin, a part-time Park Service Aide, whose responsibilities were to

clean the restrooms and the Park before and after an event, to keep the area clean,

and change the trash bags during the event. Also present was a teenage volunteer

who was helping Martin that night. Victor Jenkins, the Goulds South Dade Zone

Manager,     who     is   responsible   for
                                          26
managing seventeen parks for Miami-Dade County Parks and Recreation, testified

in his deposition that the County has only budgeted for twenty-seven park security

officers to service all of the recreational facilities throughout the County. These

officers are directed to mainly patrol the beaches and marinas on the weekends.

Because the County does not provide security at these private parties and events, it

requires the patron renting a park facility to contact the police department and hire

off-duty officers for certain events.

      Martin testified in his deposition that he performed his duties as required on

the night of the party. He made sure the restrooms and area were clean, the trash

was properly disposed of, and the trash bags were changed when the trash cans

became full. He explained that Salgado was celebrating his eighteenth birthday,

and the party consisted of mostly sixteen-to-eighteen-year-olds who were eating,

dancing, and just having a good time. Salgado’s parents were present, and there

were also two large men wearing “Security” T-shirts present who appeared to be

patrolling the area and providing security for the party. He did not see anyone

using drugs, fighting, or having a confrontation with anyone. Everything was calm

and everyone seemed to be having a good time when all of a sudden, at around

10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the

kids had been shot, he called 911 and then his supervisor.

      Inga Portilla, a Park Manager, confirmed that Park Service Aides are only

responsible for maintenance within the
                                         27
Park. They do not provide security, do not check to see if the renter has obtained

the required permits, are not trained in crime prevention, and are not authorized to

“police” the area. She also confirmed that after Salgado paid his membership fee,

a booklet was sent to his house containing the rental coupon and a copy of the

Park’s rules and regulations. These rules and regulations are also posted at the

Park. Portilla explained that “once we rent the facility . . . we don’t have anything

to do with direct involvement of the parties,” and that it was Salgado’s

responsibility to follow the rules, obtain the necessary permits, and hire off-duty

police officers if he was having a party that required off-duty police officers, as

“[w]e are not responsible for the party.”

       Pozos presented no evidence to refute any of the above referenced evidence.

The affidavit/statement provided by Salgado, the renter and host of the party, does

not refute the testimony of the park employees or the physical evidence. Salgado

did not dispute that he had received a copy of the Park’s rules and regulations

related to rentals of the Park’s facilities. He merely stated that when he rented the

pavilion, he was not advised that he needed to hire off-duty officers and that he

did not recall if anyone had asked him how many people he expected would be

attending the party.

       Therefore, the unrefuted evidence supports the legal conclusion that the

County made a discretionary policy/planning decision to allow patrons of its parks

to rent its facilities for private parties or
                                            28
events. Relying on its legislative/permitting/licensing authority, the County

enacted certain rules and regulations governing the rental and use of its parks and

the park’s facilities. Based on the County’s limited resources, it exercised its

discretion to assign only twenty-seven officers to the Parks and Recreation

Department to service all of the parks, beaches, and County-owned recreational

areas located throughout the county and to direct those officers to primarily patrol

the public beaches and marinas on the weekends, rather than directing them to

patrol and monitor private parties being held in public parks.        The County,

therefore, included certain restrictions and requirements within its enacted rules

and regulations and rental agreements, which the party or event host was required

to follow. Among other things, these rules and regulations required the renter to

go to the police department and (1) obtain a broadcast permit if using a D.J., live

music, or sound equipment; (2) obtain a special event permit if over 200 guests

were expected to attend; and (3) hire off-duty police officers under each of these

scenarios. The rules and regulations and the rental agreement specified that the

County’s park employees would not be responsible for the failure to meet any of

these requirements.

      When Salgado purchased his Park membership, he was sent a copy of these

rules and regulations.    Salgado, however, did not abide by these rules and

regulations when he used his free coupon to rent a pavilion for his birthday party.

Although he had a D.J. and sound
                                        29
equipment at the party, he did not obtain a broadcast permit or hire off-duty police

officers from a police department. Whether he was additionally required to obtain

a special event permit and hire off-duty police officers based on the number of

guests he expected to attend is unclear because the evidence does not reflect

whether Salgado expected so many people to attend and whether there were more

than 200 guests at the party. Nevertheless, this issue is irrelevant because, based

on Salgado’s use of a D.J. and sound equipment, he was required to hire two off-

duty police officers anyway.       However, instead of obtaining the necessary

permit(s) and hiring off-duty police officers, Salgado hired two private-duty

security officers.

      Whether Salgado’s failure to follow the County’s rules and regulations was

the proximate cause of the shooting during his party is, however, not the issue

before us. Setting aside the question of whether the County even had the duty to

protect Salgado’s invitees against the unlawful conduct of a third party during

Salgado’s party at the Park, the County was sovereignly immune from tort liability

as a matter of law. As stated earlier, that is because if the County demonstrated

that either it did not owe the plaintiff a duty of care or the County’s decision,

omission, or conduct was as a result of its quasi-legislative discretionary policy or

planning decision, then the County would be sovereignly immune from tort

liability. 

; 

; Kaiser, 

at 734; 

- 21.
                                         30
      Because the County’s decisions were quasi-legislative discretionary policy

or planning decisions it is sovereignly immune and thus, it was entitled to

summary judgment as a matter of law. This conclusion is supported by prior

decisions from the Florida Supreme Court, this Court, and our sister courts.

      For example, in Delgado v. City of Miami Beach, 

(Fla. 3d

DCA 1988), this Court affirmed the trial court’s order granting the City of Miami

Beach’s motion for summary judgment after concluding that the City of Miami

Beach was protected from liability under the doctrine of sovereign immunity as a

matter of law. Delgado was injured when someone in the crowd ignited fireworks

that struck and burned Delgado’s leg while he was attending a concert and a

fireworks display sponsored by the City of Miami Beach. Delgado claimed that

the City of Miami Beach, which had sponsored the event, breached its duty by

failing to prohibit the attendees from possessing and detonating their own

fireworks.   This Court, however, concluded that the City of Miami Beach’s

“actions fell within the planning-level, discretionary function of government, for

which no liability attaches.” 

Specifically, this Court held that “[t]he

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. Accordingly, the city is protected

under the doctrine of sovereign immunity.”       

Commercial

Carrier, and other cases).
                                        31
      As in Delgado, the County’s actions in the instant case—not assigning

officers to patrol or be present at private parties or events held in its public parks,

but to, instead, require those who rent its park facilities to obtain permits and hire

off-duty officers under certain circumstances—was a discretionary planning and/or

policy decision.   It was a governmental decision made in the exercise of its

discretionary authority regarding the manner in which compliance and enforcement

of the law and the protection of the public would be effectuated. The manner in

which the County notified those who rented its park facilities of their obligations

and responsibilities was also a planning/policy discretionary governmental

decision. Because parks such as Benito Juarez Park were “un-manned” parks with

only part-time maintenance employees in attendance, the County, in the exercise of

its discretion, put into place a policy requiring the County to notify each individual

who purchased a Park membership or rented a Park facility by providing him/her

with a copy of the Park’s rules and regulations. The unrefuted evidence in this

case is that these rules and regulations were sent to the Salgado’s home along with

his coupon book after he purchased his Park membership. Because these decisions

fell squarely within the County’s power to govern, they are protected as a matter of

law under the doctrine of sovereign immunity.

      The decisions of the County regarding where and how to deploy its available

manpower (sworn police officers) is a discretionary or planning function. And, as

the Florida Supreme Court stated in
                                          32
Trianon, “under the constitutional doctrine of separation of powers, the judicial

branch must not interfere with the discretionary functions of the legislative or

executive branches of government absent a violation of constitutional or statutory

rights.” 

. “While sovereign immunity is a silent issue

here, we ought not lose sight of the fact that inherent in the right to exercise police

powers is the right to determine strategy and tactics for the deployment of those

powers.” Wong v. City of Miami, 

, 134 (Fla. 1970); see also

Commercial 

(quoting 

):

      The sovereign authorities ought to be left free to exercise their
      discretion and choose the tactics deemed appropriate without worry
      over possible allegations of negligence. Here officials thought it best
      to withdraw their officers. Who can say whether or not the damage
      sustained by petitioners would have been more widespread if the
      officers had stayed . . . .

      The County’s decisions as to how many officers to employ and allocate to

patrol the County’s recreational facilities, whether to rent its facility for the use of

a private party or function, what rules and regulations should be adopted for that

purpose, and the responsibilities and duties to be borne by the renter, are all quasi-

legislative discretionary policy/planning decisions.          Thus, the County is

sovereignly immune from suit, and therefore, it was entitled to summary judgment

as a matter of law. By denying the County’s motion for summary judgment and

rejecting the County’s sovereign immunity argument, the trial court determined as

a matter of law, that the County is not entitled to sovereign immunity.


                                          33
                                  CONCLUSION

      The determination of whether a governmental entity is immune from

liability involves a two-prong analysis: (1) whether the governmental entity owed

the plaintiff a duty of care; and (2) whether sovereign immunity bars the actions

based on an alleged breach of that duty. If the governmental entity establishes

either that it owed no duty to the plaintiff or it was entitled to sovereign immunity,

it is entitled to summary judgment.

      Although the trial court’s order merely denies the County’s motion for

summary judgment, the failure to specify the basis for that denial is not fatal

because, even if the County owed the plaintiff a duty of care or there was a

material factual dispute as to the issue of duty, the County is sovereignly immune

from suit as a matter of law because it established the second prong of the

analysis—that the County’s decisions in this case were discretionary, quasi-

legislative, planning, or policy decisions. Because the facts relating to sovereign

immunity are not in dispute, the denial of the County’s motion for summary

judgment on the basis of sovereign immunity was determined by the trial court as

a matter of law. We, therefore, have jurisdiction to review that determination.

Because the record establishes that the County is sovereignly immune from suit as

a matter of law, the trial court erred by denying the County’s motion for summary

judgment. Accordingly, I would reverse the order on appeal and remand for entry

of an order granting summary judgment in favor of the County.
                                         34
III. Recommendation to the trial courts

      The protection from suit is a valuable protection. If a defendant who is

entitled to immunity from suit is erroneously required to litigate the case and to

stand trial, that individual or entity has lost the right bestowed by statute to be

protected from even being named as a defendant, thereby rendering the statutory

protection meaningless. 

. This problem can be easily

remedied if the trial courts simply issue orders that clarify the trial court’s ruling

when ruling on a motion to dismiss or a motion for summary judgment where the

issue of immunity is raised and litigated. The order should state whether the

motion for dismissal or for summary judgment on the claim of immunity is being

denied as a matter of law, and, if not, why not. Appellate review should not be

thwarted by the issuance of an unelaborated order.




                                         35