ERROL G. TUBELL, EMILE J. TUBELL AND VIRGINIA TUBELL, APPELLANTS,
v.
DADE COUNTY PUBLIC SCHOOLS, APPELLEE
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The Florida Third District Court of Appeal holds that no cause of action for 'educational malpractice' exists under Florida law. The court affirmed summary judgment dismissing a case where parents alleged their child was mistested and misclassified into an improper special education program.
No cause of action for educational malpractice exists in Florida. The court held that even if the allegations of mistesting and misclassification are correct, no valid cause of action is stated. The sovereign immunity waiver statute does not create such a cause of action.
[1] Florida does not recognize a cause of action for "educational malpractice."
[2] Allegations of mistesting and misclassification leading to placement in an improper special educational program do not state a cause of action for "educational malpractic…
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Join FLexlaw to unlock all legal intelligence“Should a cause of action for 'educational malpractice' be recognized in the State of Florida? The trial court answered this in the negative by entering a final summary judgment adverse to the plaintiff-appellants herein. We agree and affirm.”
Establishes the central legal question and the court's holding that no such cause of action exists.
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Join FLexlaw to unlock all legal intelligenceThe minor plaintiff was mistested and misclassified, resulting in placement in an improper special educational program for a number of years to his de…
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PER CURIAM.
Should a cause of action for “educational malpractice” be recognized in the State of Florida? The trial court answered this in the negative by entering a final summary judgment adverse to the plaintiff-appellants herein. We agree and affirm.
The basis of the plaintiff’s complaint1 was a mistesting and misclassification resulting in the minor plaintiff being placed in an improper special educational program for a number of years to his detriment. We hold that even if these allegations are correct there is no cause of action stated. D. S. W. v. Fairbanks North Star Borough School District, 628 P. 2d 554 (Alaska 1981); Smith v. Alameda County Social Services, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976); Hunter v. Board of Education of Montgomery County, 292 Md. 481, 439 A. 2d 582 (1982); Hoffman v. Board of Education of the City of New York, 49 N.Y.2d 121, 424 N.Y.S. 376, 400 N.E. 2d 317 (1979); Helm v. Professional Childrens’ School, 103 Misc.2d 1053, 431 N.Y.S. 246 (1980); Donohue v. Copiague Union Free School District, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E. 2d 1352 (1979).
The appellants urge that the enactment of Section 768.28 of Florida Statute, (1975), which is the waiver of sovereign immunity statute, in effect permits such an action. We disagree.2 Zorick v. Tynes, 372 So. 2d 133 (Fla. 1st DCA 1979); Johnson v. Weiner, 155 Fla. 169, 19 So. 2d 699 (1944); Dodson v. Solomon, 134 Fla. 284, 183 So. 825 (1938); Miener v. State of Missouri, 498 F.Supp. 949 (E.D.Mo.1980); Loughran v. Flanders, 470 F.Supp. 110 (D.C.Conn.1979).
Therefore the summary judgment here under review be and the same is hereby affirmed.
. While the plaintiffs complaint alleged, in separate counts, causes of action for negligence, false imprisonment, violation of civil rights and equal protection, and violation of state constitutional rights to enjoy and defend life and liberty, to pursue happiness and be rewarded for industry, and denial of due process, the underlying facts pleaded to support each count were, in fact, those that would support a claim for “educational malpractice”, regardless of the nomenclature.
. Generally the addition of a waiver of immunity statute cannot create a cause of action. Airport Sign Corporation v. Dade County, 400 So. 2d 828 (Fla.3d DCA 1981); e.g., Welsh v. Metropolitan Dade County, 366 So. 2d 518 (Fla. 3d DCA 1979). Moreover, if there was cause of action for “educational malpractice” in the State of Florida the sovereign immunity defense would still be available under the facts in the instant case because the alleged negligent action was not of the type of conduct that gives rise to a valid cause of action against a public agency. Commercial Carrier Corporation v. Indian River County, 371 So. 2d 1010 (Fla.1979); Ellmer v. City of St. Petersburg, 378 So. 2d 825 (Fla.2d DCA 1979).
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Dep't of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906 (Fla. 1995)…ng those in Florida, have rejected claims of educational malpractice as a tort action for a variety of reasons, one being that it would offend the separation of powers between the three branches of government. See Tubell v. Dade County Pub. Schools, 419 So. 2d 388 (Fla. 3d DCA 1982). The district court applied this reasoning to immunize HRS’s placement decisions, but did not extend it to HRS’s decisions as to the provision of services. We believe it applies to both functions. The decisions concerning the allo…
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Monroe v. Sarasota Cnty. Sch. Bd., 746 So. 2d 530 (Fla. 2d DCA 1999)…traditionally refused to create a cause of action for "educational malpractice” based primarily upon public policy considerations. See Armstrong v. Data Processing Inst., Inc., 509 So. 2d 1298 (Fla. 1st DCA 1987); Tubell v. Dade County Pub. Schools, 419 So. 2d 388 (Fla. 3d DCA 1982); Hoffman v. Board of Educ. of the City of New York, 49 N.Y.2d 121, 400 N.E. 2d 317, 424 N.Y.S.2d 376 (1979). . As support for this proposition, footnote 3 of Moransais cites to 38 Fla. Jur.2d, Negligence, § 156 (1998). . In each…
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B.J.M. v. State, 627 So. 2d 512 (Fla. 3d DCA 1993)…olicy-making, planning or judgmental government functions” for which government agencies remain immune from liability. Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979). [*516] See also Tubell v. Dade County Public Schools, 419 So. 2d 388 (Fla. 3d DCA 1982) (holding that no cause of action exists for educational malpractice for improper placement in special educational program). To clarify the concept of governmental tort liability, the Florida Supreme Court placed governmental funct…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- Johnson v. Meyer Weiner also known as M. Weiner, 155 Fla. 169 (Fla. 1944)
- Dodson v. Solomon, 134 Fla. 284 (Fla. 1938)
- Ellmer v. The City OF ST. Petersburg, 378 So. 2d 825 (Fla. 2d DCA 1979)
- Welsh v. Metro. Dade Cnty., 366 So. 2d 518 (Fla. 3d DCA 1979)
- Zorick v. Tynes, 372 So. 2d 133 (Fla. 1st DCA 1979)
- Airport Sign Corp. v. Dade Cnty. & Richard Judy, 400 So. 2d 828 (Fla. 3d DCA 1981)