ROBERT TALMADGE, BY HIS NEXT FRIEND AND NATURAL GUARDIAN, BILLY TALMADGE, AND BILLY TALMADGE, INDIVIDUALLY, APPELLANTS,
v.
DISTRICT SCHOOL BOARD OF LAKE COUNTY, SONNY WALTERS AND AUTO OWNERS INSURANCE COMPANY, APPELLEES
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Talmadge sued a school board and its employee for injuries sustained during physical education class. The court held that a Florida statute amended to bar suits against government employees cannot be applied retroactively to pending litigation, as it would impair the plaintiff's vested right to sue.
The retroactive application of Chapter 80-271 to section 768.28(9) is unconstitutional as applied because retroactive legislation that impairs vested rights is invalid. The plaintiff had a vested right to sue when the tort was committed in 1976, which cannot be eliminated by retroactive legislation.
[1] A statute that retroactively bars actions against state employees for acts committed within the scope of employment, where such actions were previously permitted, is unco…
[2] Retroactive legislation is generally invalid if it impairs a vested right.
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Join FLexlaw to unlock all legal intelligence“Retroactive legislation is usually invalid if it impairs a vested right.”
Statement of the governing legal principle that the court applied to invalidate the retroactive application of the amended statute.
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Join FLexlaw to unlock all legal intelligenceIn 1976, Billy Talmadge sued on behalf of his son Robert for injuries occurring during a physical education class taught by Sonny Walters, an employee…
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COBB, Judge.
In 1976, Billy Talmadge, on behalf of his son, Robert Talmadge, sued the District School Board of Lake County, and its insurer, Auto Owners Insurance Company, and a physical education instructor, Sonny Walters, for an injury that occurred to Robert Talmadge during physical education class.
Sonny Walters moved to dismiss on the ground that there was no cause of action against him due to section 768.28(9), Florida Statutes (1975). The trial court granted that motion to dismiss and Talmadge appealed to the Second District Court of Appeal. The Second District Court of Appeal found that section 768.28(9), Florida Statutes (1975), did not operate as a bar against suing an employee of the Board, but only acted to indemnify such employee for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment. Talmadge v. District School Board, 355 So. 2d 502 (Fla. 2d DCA 1978). The Florida Supreme Court affirmed that decision. District School Board v. Talmadge, 381 So,2d 698 (Fla.1980).
Shortly thereafter, the Florida Legislature passed Chapter 80-271, Laws of Florida, which amended section 768.28(9), Florida Statutes, so that it barred actions against employees of the state or its subdivisions for acts committed within the scope of employment unless they were done in bad faith or with a malicious purpose. The act further provided that it “shall apply to all actions pending in the trial or appellate courts from the date this act shall take effect and to all actions thereafter initiated.” The act took effect on July 1, 1980.
Subsequent to this amendment, Sonny Walters again moved to dismiss the complaint. The trial court granted that motion. Appellant is appealing that order on the ground that section 768.28(9), Florida Statutes (Supp.1980), is unconstitutional as applied to the appellant.
Retroactive legislation is usually invalid if it impairs a vested right. 10 Fla.Jur.2d Constitutional Law § 296 (1979), and cases cited therein. To the extent that Chapter 80-271, Laws of Florida, amended section 768.28(9), Florida Statutes (Supp. 1980), to apply retroactively, it is unconstitutional. State Dept. of Transportation v. Knowles, 402 So. 2d 1155 (Fla.1981), rehearing denied (Fla. Sept. 24, 1981).
Accordingly, we reverse the trial court’s order granting the motion to dismiss.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Knowles, 402 So. 2d 1155 (Fla. 1981)
- Dist. Sch. Bd. OF Lake Cnty. v. Talmadge, 381 So. 2d 698 (Fla. 1980)
- Talmadge v. Dist. Sch. Bd. OF Lake Cnty., 355 So. 2d 502 (Fla. 2d DCA 1978)