IN THE SUPREME COURT STATE OF FLORIDA BRIEF ON JURISDICTION OF

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC PETER MILANESE, as personal representative of the Estate of Christopher Milanese, 's Petitioner, v. CITY OF BOCA RATON, FLORIDA Respondent. BRIEF ON JURISDICTION OF CITY OF BOCA RATON, FLORIDA ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL Jamie A. Cole, Esq. Florida Bar No Edward G. Guedes, Esq. Florida Bar No Matthew H. Mandel, Esq. Florida Bar No Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. 200 E. Broward Blvd., Ste Fort Lauderdale, Florida Telephone: (954) Facsimile: (954) Counselfor City ofboca Raton, Florida 2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL O8OO FAX

2 TABLEOFCONTENTS Paae TABLE OF CONTENTS... i TABLE OF CITATIONS... ii ABBREVIATIONS USED IN THIS BRIEF... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 I. THE COURT'S LIMITED JURISDICTION... 2 II. THE CASES CITED BY MILANESE DO NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OBELW A. The "custody" cases... 4 B. The police "interference" or "undertaking" cases... 6 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORlDA TEL FAX 3OS

3 TABLE OF CITATIONS Page Cases Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)... 3 Crossley v. State, 596 So. 2d 447 (Fla. 1992)... 3 Dupont Plaza, Inc. v. Dade County, 125 So. 2d 564 (Fla. 1960)... 3 Everton v. Willard, 468 So. 2d 936 (Fla.1985)... 7 Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999)... 4, 6, 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 8 Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989)... 4, 5, 6 LeMay v. Kondrk, 923 So. 2d 1188 (Fla. 5th DCA 2006)... 6, 9, 10 Milanese v. City ofboca Raton, Florida, Case No. 4D y State v. Barnum, 921 So. 2d 513 (Fla. 2005)... 3 Trianon Park [Condo. Ass'n, Inc. v. City ofhialeah], 468 So. 2d at , 9 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)... 6, 8, 9 Walston v. Fla. Highway Patrol, 429 So. 2d (Fla. 5th DCA 1983)... 4, 5 Williams v. Dugan, 153 So. 2d 726 (Fla. 1963)... 3 Statutes (9)(a), Fla. Stat Constitutional Provisions Art. V, 3(b)(3) of the Florida Constitution PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORIDA TEL FAX

4 ABBREVIATIONS USED IN THIS BRIEF References to petitioner, Peter Milanese, will appear as "Milanese" while references to respondent, City of Boca Raton, Florida, will appear as "City." References to Milanese's brief on jurisdiction will appear as "MBJ." References to the Fourth District Court of Appeal's en banc decision in Milanese v. City of Boca Raton, Florida, Case No. 4D0-5247, will be to the pagination reflected in the appendix ("App.") attached to Milanese's brief PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

5 INTRODUCTION Milanese asks this Court to exercise its discretionary jurisdiction to review the Fourth District Court of Appeal's en banc decision below based upon a purported "express and direct" conflict with certain precedents of this Court and the Fifth District Court of Appeal. Inasmuch as no "express and direct" conflict exists, the Court should decline review. STATEMENT OF THE CASE AND FACTS While the City objects to Milanese's characterization of the dissent below as taking "issue with the majority for ignoring various facts" (MBJ at 4, n. 2), the City otherwise accepts Milanese's statement of the case and facts as supported by the Fourth District's majority decision. SUMMARYOFARGUMENT Since the 1980 amendment of the Florida Constitution, this Court has been a court of limited jurisdiction, leaving the district courts of appeal to be courts of last resort in most cases. Milanese improperly invokes the Court's limited jurisdiction claiming an express and direct conflict that simply does not exist. Milanese's jurisdictional brief identifies five discreet decisions that he contends expressly and directly conflict with the en banc decision below. However, a more careful examination of those cases reveals (i) that they are factually and analytically distinguishable, and (ii) that finding express and direct conflict here would require the Court to extend duty of care principles to a situation where they have never been applied. As even the dissent below acknowledged, the situation presented PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORlDA TEL FAX

6 was one of "first impression." App. at 9 ("Factually, this is a case of first impression in the reported cases in Florida."). While Milanese oft invokes the language of conflict, he never actually articulates the duty of care that the City owed under the facts of the case, but which the Fourth District allegedly disregarded. Should the City have forcibly prevented Milanese from leaving when he was not charged? Was the City under a duty to ensure that Milanese actually entered the taxi that was called for him? Was a police officer required to follow the taxi all the way to Milanese's home to make sure he did not prematurely exit the taxi? Was the City required to post an officer at Milanese's home to ensure he did not leave the residence again? These questions are largely unanswerable because there is no principled way to impose a duty of care on the City based on the undisputed facts. As such, there is no express and direct conflict between the Fourth District's decision and any of the decisions enumerated by Milanese that would render them irreconcilable. Review should be denied. ARGUMENT I. THE COURT'S LIMITED JURISDICTION. Pursuant to Art. V, 3(b)(3) of the Florida Constitution, this Court may: review any decision of a district court of appeal that... expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. According to the Commentary to Article V, this section of the State's Constitution was amended in 1980 to restrict the Court's jurisdiction: the amendment PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL O800 FAX

7 represented "a departure from the existing jurisdiction of the supreme court which was essentially an appellate court of last resort. Under this amendment, the district courts of appeal, except in the enumerated cases, are the courts of final appeal." As the Court, itself, has observed, "[the Court] is without power to simply assume jurisdiction in a case to correct what [it] perceive[s] as error, even if the issue appears to be important..." State v. Barnum, 921 So. 2d 513, 523 (Fla. 2005). A conflict has been said to be direct when another decision concerns "the same point of law and leaves the jurisprudence of the State on the point of law in confusion and lacking uniformity." Dupont Plaza, Inc. v. Dade County, 125 So. 2d 564, 565 (Fla. 1960). Conflict jurisdiction arises when there is a "collision on a point of law" and where "two decisions are wholly irreconcilable." Williams v. Dugan, 153 So. 2d 726, 727 (Fla. 1963). Further, where a DCA reaches the opposite result on controlling facts which, if not identical, more strongly dictate the result reached by the alleged conflict case, then a conflict exists warranting the acceptance of jurisdiction. Aravena v. Miami-Dade County, 928 So. 2d 1163, (Fla. 2006) (citing Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992)). However, the "conflicting" decisions should be largely "irreconcilable." Id.. Milanese has failed to demonstrate the kind of express and direct conflict needed for this Court to exercise its jurisdiction for he has not demonstrated how the decision below is "wholly irreconcilable" with a prior precedent of this Court or another district court of appeal PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

8 II. THE CASES CITED BY MILANESE DO NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION BELOW. The question of whether a duty of care exists and is owed under a particular set of facts is a matter of law for the trial court to decide, not the jury. Henderson v. Bowden, 737 So. 2d 532, 536 (Fla. 1999) ("[D]uty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant's factual conduct."). None of the cases identified by Milanese addresses duty of care under facts substantially similar to those in this case. A. The "custody" cases. Two of the cases identified by Milanese - Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989) and Walston v. Fla. Highway Patrol, 429 So. 2d 1322 (Fla. 5th DCA 1983) - are immediately distinguishable because they were decided on the basis that the police officers in question had active custody of the plaintiffs at the time the accidents happened. Thus, in Kaisner, this Court reasoned that In this case, we find that petitioner was owed a duty of care by the police officers when he was directed to stop and thus was deprived of his normal opportunity for protection.... So long as petitioner was placed in some sort of "custody" or detention, he is owed a common law duty of care. * * * Petitioner and his family unquestionably were re-strained of their liberty when they were ordered to the roadside. They were notfree to leave the place where the officers had ordered them to stop. Petitioner effectively had lost his ability to protect himself and his family from the hazard at hand, which consisted of onrushing traffic. The only way petitioner could have escaped this threat would have been by disobeying the officers' instructions that he remain... where they had PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

9 stopped him, thus subjecting himself to immediate arrest and criminal charges. Under these circumstances, petitioner clearly was sufficiently restrained of liberty to be in the "custody" or control of the police. Thus, the officers owed him and his family a duty of care arising under the common law offlorida. 543 So. 2d at 734 (emphasis added).' The Kaisner Court cited to the Fifth Distict's decision in Walston as "indistinguishable" from the facts in Kaisner, because "an officer detained a person at roadside despite evidence of the danger posed by onrushing traffic."2 Id. at 735 (citing Walston, 429 So. 2d at 1324). Unlike the situations in Kaisner and Walston, Milanese was not in custody or otherwise restricted by police action so that he was "deprived of his normal opportunity for protection" when the accident occurred. Kaisner, 543 So. 2d at 734. The accident did not occur roadside, during transport or at the station. On the contrary, Milanese was released from custody, a taxi was called for him, and he was escorted to the station door. App. at 2. Therefore, there can be no express and direct conflict between the Fourth District's decision and either Kaisner or Walston Additionally, unlike here, the Court noted that an expert affidavit had been submitted attesting to the fact that the police had failed to follow proper police procedure during the stop and it created an issue of fact. Kaisner, 543 So. 2d at 733, 736. No similar allegation was made by Milanese. 2 In Walston, the plaintiffs were under arrest at the time of the accident. 429 So. 2d at The Fifth District described the facts as follows: "The record reveals that Trooper Holder admitted that he was taught not to allow people to stand between cars during highway stops; furthermore, he had expressed (to himself) concern for the safety of [the plaintiffs] when he saw them standing between the cars...; Holder initially led Bartleman between the two cars; neither [plaintiff], both of whom were drunk, was ever warned by either arresting trooper about the danger." 429 So. 2d at WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P. L PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORlDA TEL FAX

10 where the fundamental analytical premise of the latter cases - custody at the time of the accident - is missing here. B. The police "interference" or "undertaking" cases. The remaining three cases identified by Milanese - Henderson, supra; Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009); and LeMay v. Kondrk, 923 So. 2d 1188 (Fla. 5th DCA 2006) - are immediately distinguishable because in each instance, the police actively injected themselves into the situation by interfering with the plaintiffs' liberty, directing their actions or undertaking a specific duty they were otherwise not required to undertake, which resulted in the accidents. Thus, in Henderson, the police officers, after arresting the intoxicated driver of a vehicle and while still at the scene of the arrest, directed another obviously intoxicated passenger in the vehicle to drive the vehicle (along with the remaining passengers) to a nearby convenience store (or suffer impoundment of the vehicle). 737 So. 2d at When one of the officers later followed to the convenience store, he observed the vehicle drive away at a high rate of speed and the officer pursued, leading to the eventual crash that killed the passengers.3 Id. at 534. Citing Kaisner, the Court took pains to distinguish Henderson from those cases where immunity might apply. The Court's focus was plainly on the officer's affirmative directive to the passengers: The allegation that the deputies affirmatively directed an intoxicated Lyons to drive the vehicle distinguishes this case from those cases 3 The plaintiffs also asserted a tort claim for negligent pursuit. Id. at PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

11 which hold that a government entity has no common-law duty to enforce the law for the benefit of an individual or a specific group of individuals, see Trianon Park [Condo. Ass'n, Inc. v. City ofhialeah], 468 So. 2d at 918; see also Everton v. Willard, 468 So. 2d 936 (Fla.1985) ("A law enforcement officer's duty to protect the citizens is a general duty owed to the public as a whole."), and that a governmental entity has no duty to protect the general public from the lawless acts of third parties. 737 So. 2d at 536 n. 8 (emphasis added). Unlike the situation in Henderson, the officers here did not direct Milanese to do anything or otherwise interfere with his behavior after being released. Instead, the officers merely engaged in the prudent act of calling him a taxi and expeditiously escorting him to the door.4 Milanese latches onto the following dicta from Henderson to assert a conflict: "There may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; but it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability." MBJ at 7 (citing Henderson, 737 So. 2d at 537). Of course, Henderson was not decided on the basis of the language cited, but rather on the fact that the police "affirmatively directed an intoxicated [passenger] to drive the vehicle." 737 So. 2d at 536 n. 8. Milanese cannot premise his claim of conflict on dicta - a conflict 4 Citing the dissent, Milanese takes issue with the fact that the officers "never even determined if the cab had ever arrived." MBJ at 5 n. 2. Assuming such an obligation even existed, it is undisputed, however, that the taxi was called and did arrive two minutes after it was called and one minute before Milanese was escorted to the station door. App. at PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

12 must be based on an express ruling of the Court.5 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Milanese's reliance on Wallace to establish conflict is even more unavailing. In Wallace, police were called to a home for a safety check after neighbors were unable to reach the resident.6 Upon entering, they discovered the resident but were unable to rouse her, despite "repeatedly scream[ing] her name" and "aggressively" shaking her. 3 So. 3d at The Court described the scenario as follows: In spite of these repeated, intensive efforts to arouse Brenda, she remained completely unresponsive. Ginder then requested that the deputies summon an ambulance, but the deputies "rebuffed" this request by repeatedly assuring Ginder that it was unnecessary to do so because Brenda was merely sleeping. Moreover, Ginder's father suggested that Brenda might have lapsed into a diabetic coma, to which one of the deputies replied, "One does not snore if in a diabetic coma." Ginder and her father relied on the deputies' repeated assurances that Brenda was simply sleeping and their continued affirmation that emergency help was not immediately required. Even if this were not the law, the fact remains that the City did not "eject" Milanese into the "danger of a street or railroad yard." The City called Milanese a taxi, which arrived on time. The fact that Milanese did not take the taxi does not legally create a duty of care for the City, any more than it would have if Milanese had gotten in the taxi and disembarked three blocks away from the station or if he had gotten home and then decided to leave his residence on foot before being injured. 6 The Court found conflict in Wallace because the decision under review "involved the substantially similar factual scenario of an allegedly negligent law-enforcement response to a safety check, which the respective plaintiffs contended increased the risk of harm to their decedents." 3 So. 3d at PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

13 Id. (emphasis added). The Court described the issue before it as "whether the undertaker's doctrine applies to governmental officers who have affirmatively responded to a 911 call, actually engaged an individual, and undertaken to perform a safety check." Id. at 1040 (emphasis added). The Wallace Court eventually concluded that what the officers did was akin to "providing professional, educational, and general services for the health and welfare of... citizens." Id. at 1049 (citing Trianon, 468 So. 2d at 919). The Court reasoned: "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.'" Id. at 1050 (emphasis added). Unlike what occurred in Wallace, the officers in this case did not voluntarily undertake to render professional services and/or advice that resulted in others detrimentally relying on such service or arguably unqualified advice. The record does not reflect that the City's officers counseled or directed Milanese or caused anyone to forebear from taking action to assist Milanese; they merely called him a taxi and escorted him to the door of the station. By asserting conflict, Milanese is effectively asking this Court find a duty of care where none has previously been found. The last decision erroneously identified by Milanese as creating an express and direct conflict is LeMay. Like the preceding two cases, LeMay involved a situation where a police officer directly interfered with or directed the conduct of the plaintiff, which led to a subsequent accident: PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORIDA TEL O800 FAX

14 [The officer] ordered Mr. Younce to walk in one direction on the highway, and Mr. Ault to walk the other way. Mr. Ault got to a nearby stop sign and then returned to the store. The deputy intercepted Mr. Ault with his vehicle, and said to him, "No, I told you to go." Mr. Ault, who was wearing dark clothing, then walked down the two-lane, unlit rural highway with no sidewalks or paved shoulders, and was hit by a car and killed somewhere between four and fifteen minutes later. Postmortem tests reflected that Mr. Ault had a blood alcohol level of Id. at (emphasis added). In contrast, the City's officers did not direct Milanese to leave, to travel in any particular direction or interfere with his choice of direction. Additionally, it appears that the question of whether a duty of care was owed in the first instance was not disputed in LeMay, since the Fifth District's analysis seems to skip over the duty question and proceed directly to determining that a disputed factual inquiry precluded summary judgment on the basis of immunity under section (9)(a), Florida Statutes. Id. at Because the Fifth District did not actually rule on the existence of a duty of care, but rather whether immunity was validly asserted, LeMay cannot form the basis for express and direct conflict that would support this Court's jurisdiction. CONCLUSION None of the five cases identified by Milanese presents a sufficiently similar factual or legal context that would yield an irreconcilable express and direct conflict with the Fourth District's en banc decision below. As such, the City respectfully requests that the Court deny review PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

15 Respectfully submitted, Jamie A. Cole, Esq. Florida Bar No Edward G. Guedes, Esq. Florida Bar No Matthew H. Mandel, Esq. Florida Bar No Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. 200 E. Broward Blvd., Ste Fort Lauderdale, Florida Telephone: (954) Facsimile: (954) Counselfor City ofboca Raton By: Edward G. Gue s CERTIFICATE OF SERVICE I certify that a copy of this respondent's brief on jurisdiction was mailed on June Í 012 to James K. Green, Esq. (Counsel for Petitioner), James K. Green, P.A., Suite 1650, Esperanté, 222 Lakeview Avenue, West Palm Beach, Florida Edward G. Gue)ies PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX

16 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. Edward G. Guedes) PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA TEL FAX