JUDITH ANN SCHULTZ, AS PERSONAL REPRESENTATIVE OF THOMAS TESMACHER SCHULTZ, A DECEASED MINOR, APPELLANT,
v.
BREVARD COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA; DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, AN AGENCY OF THE STATE OF FLORIDA, AND THE HARTFORD, ACCIDENT & INDEMNITY COMPANY, A FOREIGN INSURANCE COMPANY, APPELLEES
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The court held that the statutory exception to the venue privilege for state agencies does not apply retroactively to causes of action that accrued before its effective date.
[1] A state and its agencies historically enjoyed a common law venue privilege allowing them to be sued only in counties where they maintained their principal headquarters.
[2] Public policy may dictate an exception to the state's venue privilege in cases involving joint public tortfeasors, but the creation of such an exception is a legislative…
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Join FLexlaw to unlock all legal intelligencePlaintiff sued Brevard County and the Department of Health and Rehabilitative Services in Brevard County, alleging they were joint tortfeasors respons…
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SHARP, Judge.
Schultz appeals from an order of the trial court changing the venue of her cause of action, en toto, from Brevard County to Leon County. She sued Brevard County and the Department of Health and Rehabilitative Services in Brevard County. Her complaint alleged they were joint tort-feasors who caused the death of her minor son by failing to monitor and keep the public from swimming in Grant Lake, which is located in Brevard County. Schultz’ son contracted a fatal disease (primary amoebic meningoencephalitis) while swimming in Grant Lake. We affirm.
At the time the cause of action accrued in this case, the state and its agencies enjoyed a common law venue privilege in civil actions wherein they could elect to be sued only in the counties in which they maintained their principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla.1948). In Grice v. Board of County Commissioners of Madison County, 413 So. 2d 88 (Fla. 1st DCA 1982), the court suggested there are exceptional circumstances in which blind adherence to the local venue privilege would defeat the legislative purposes of promoting orderly and uniform handling of state litigation and minimizing the expenditure of state funds and manpower. The Grice court found as a matter of public policy that there was an exception for joint public tortfeasors, such as in this case.
Although the Grice exception is logical and would indeed be in the public interest, we think the creation of such an exception is properly a legislative matter. Lake County v. Friedel, 387 So. 2d 514 (Fla. 5th DCA 1980). The legislature has created such an exception in section 768.28(1), Florida Statutes (1981), which permits a claimant to sue a state agency or subdivision in the county where the cause of action accrues if the agency or subdivision maintains an office in that county for the transaction of its customary business. Unfortunately, this statute applies only to causes of action accruing after October 1, 1981. § 768.-28(14), Fla.Stat. (1981). The order appealed is therefore
AFFIRMED.
COBB and COWART, JJ., concur.
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Fla. Dep't OF Transp. v. McFADDEN, 432 So. 2d 676 (Fla. 5th DCA 1983)…ved by the Supreme Court’s answer to the question certified in Grice. The certified question has been docketed in the Supreme Court, No. 62,174, (June 10, 1982). . Appellant has cited the most recent case from this court, Schultz v. Brevard County, 431 So. 2d 187 (Fla. 5th DCA 1983). While that case also relies on Friedel, in affirming the trial court’s order removing the entire case to Leon County it avoids the separation of what is not a severable cause of action.…1 / 2
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Frances B. Glenn, D.D.S. v. Rupert Q. Bliss, D.D.S., 437 So. 2d 171 (Fla. 3d DCA 1983)…ntion presented on appeal2 is that the “sword wielder” exception to that doctrine applies to this case. We do not agree. Carlife v. Game and Fresh Water Fish Commission, 354 So. 2d 362, 365 (Fla.1977). Affirmed. . See Schultz v. Brevard County, 431 So. 2d 187 (Fla. 5th DCA 1983). . Because the appellant does not invoke or cite Medina v. Florida Department of Transportation, 426 So. 2d 1172 (Fla. 3d DCA 1983); compare Lake County v. Friedel, 387 So. 2d 514 (Fla. 5th DCA 1980), we do not discuss the ap…
Authorities Cited
- Smith v. Williams, 160 Fla. 580 (Fla. 1948)
- Spradley v. Fla. Dep't of Corr. (Fla. 3d DCA 2020)
- Lake Cnty. v. Friedel, 387 So. 2d 514 (Fla. 5th DCA 1980)
- Grice v. Bd. OF Cnty. Comm'rs OF Madison Cnty., 413 So. 2d 88 (Fla. 1st DCA 1982)