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Florida Highway Patrol v. Jackson

Florida Court of Appeals, First District

February 23, 2018

Florida Highway Patrol, a division of the Florida Department of Highway Safety and Motor Vehicles, Appellant,
Lashonta Renea Jackson, as personal representative of the Estate of Vontavia Kiara Robinson, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge.

          Pamela Jo Bondi, Attorney General, and Britt Thomas, Chief Assistant Attorney General, Tallahassee, for Appellant.

          Jack J. Fine and Melissa Susan Sheldon of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellee.

          Winokur, J.

         Immunity from suit is meaningless if a court denies immunity to a party entitled to it, forcing the party to stand trial and appeal the improper denial of immunity. This case concerns our jurisdiction to hear an interlocutory appeal of an order denying immunity to a party claiming entitlement to it. The trial court denied a motion for summary judgment filed by the Florida Highway Patrol (FHP), which had argued, among other things, that it was immune from suit. FHP asserts that we have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which permits appellate review of non-final orders that determine "as a matter of law" that a party is not entitled to sovereign immunity. Because the order under review did not explicitly determine, as a matter of law, that FHP was not entitled to sovereign immunity, we dismiss this appeal. But because we perceive an inconsistency between the Florida Supreme Court's decision in Beach Community Bank v. City of Freeport, 150 So.3d 1111 (Fla. 2014), and other cases regarding the specificity with which a court must deny an immunity motion "as a matter of law" to permit interlocutory appellate review, we certify a question of great public importance to the Florida Supreme Court.


         On January 28, 2012, a brush fire started on Paynes Prairie Preserve in Alachua County. Near midnight on January 29, 2012, two traffic crashes occurred, one on I-75 and one on US-441, both of which included reduced visibility from the fire as a contributing factor. Both roads were closed due to the crashes and visibility concerns, and traffic was diverted onto smaller roads. Several hours later, FHP weighed the safety risks involved with keeping both roads closed, determined that visibility conditions had improved, and reopened I-75. Shortly after, the decedent Vontavia Robinson was driving on I-75 when he was involved in a fatal multiple-vehicle collision due to a sudden deterioration in visibility.

         Lashonta Renea Jackson, as personal representative of Robinson's estate, filed an action against FHP alleging negligence in the reopening of I-75. FHP filed a motion for summary judgment asserting that sovereign immunity protected its discretionary decision to reopen the interstate. The trial court denied FHP's motion, finding that disputed factual issues precluded summary judgment.[1] FHP appeals from this order.


         I. Appealability of non-final orders denying immunity

         Only recently were the rules of appellate procedure amended to permit interlocutory appeals of orders denying sovereign immunity. In re Amendments to Fla. Rule of Appellate Procedure 9.130, 151 So.3d 1217, 1218 (Fla. 2014). In order to understand how this rule should be applied here, a review of the background leading to the amended rule is helpful.

         In Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the United States Supreme Court addressed the pre-trial appealability of an order denying qualified immunity, which protects public officials from federal civil-rights claims under certain circumstances. The Court described such immunity as not simply a defense to liability, but an immunity from suit, which "is effectively lost if a case is erroneously permitted to go to trial." Id. Accordingly, "denial of a claim of qualified immunity, to the extent that it turns on an issue of law" is subject to interlocutory review. Id. at 530 (emphasis added).

         When the Florida Supreme Court encountered this issue in state-court suits, it noted that the Florida Rules of Appellate Procedure at the time did not permit appellate review of non-final orders denying most types of immunity. Tucker v. Resha, 648 So.2d 1187, 1189 (Fla. 1994).[2] Citing Mitchell, the Court agreed that qualified immunity is immunity from suit, and not merely a defense to liability, and that such immunity is lost and cannot be restored on appeal if one is erroneously required to litigate. Id. "[I]f 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." Id. at 1190. In order to make such immunity real rather than illusory, the Court requested an amendment to Rule 9.130 providing that "an order denying summary judgment based upon a claim of qualified immunity is subject to interlocutory review to the extent that the order turns on an issue of law." Id. at 1190 (emphasis added).

         Two years after deciding Tucker, the Florida Supreme Court refused to extend the Tucker rule to governmental claims of sovereign immunity. Dep't of Educ. v. Roe, 679 So.2d 756, 757 (Fla. 1996). The Court stated, "[o]ftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits. Thus, many interlocutory decisions would be inconclusive and in our view a waste of judicial resources." Id. at 758. The Court found that sovereign immunity, unlike qualified immunity, is not rooted on a worry of undue influence on public officials, and its applicability would not have a chilling effect on public officials doing their jobs. Id. at 759. As such, the benefit of sovereign immunity "will not be lost simply because review must wait until after final judgment, " and the Court declined to permit interlocutory appeals of orders denying sovereign immunity. Id.

         The Court later analyzed the individual immunity protections of section 768.28(9)(a), Florida Statutes, and determined that this immunity is more similar to qualified immunity, as described in Tucker, than to sovereign immunity, as described in Roe. Keck v. Eminisor, 104 So.3d 359 (Fla 2012) As such, the Court held that interlocutory review of orders denying the immunity protections of section 76828(9)(a) would be permitted "where the issue turns on a question of law" Id. at 366 In a concurring opinion, a majority of the Court requested a review as to whether Rule 9130 should be expanded so that "the denial of any claim ...

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