ANDREA JORDAN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF CHARLES E. JORDAN, APPELLANT,
v.
ALVIN NIENHUIS, AS SHERIFF OF HERNANDO COUNTY, FLORIDA, APPELLEE

Fla. 5th DCA | 2016-11-04
No. 5D16-1245
EVANDER and LAMBERT, JJ., concur.
203 So. 3d 974 Florida District Court of Appeal, Fifth District (2016) Positive Treatment
Cited by 21 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a wrongful death action arising from a 911 operator's handling of a medical emergency call, the Florida District Court of Appeal affirmed the dismissal of the complaint, holding that the sheriff's 911 service constitutes a Category II governmental function (law enforcement/public safety) for which no duty of care exists absent a special relationship, and that the plaintiff failed to plead sufficient facts to establish such a relationship or invoke the undertaker's doctrine.


Holding

The court held that the 911 operator's conduct does not give rise to governmental tort liability. The operation of a 911 emergency system constitutes a Category II governmental function (law enforcement and public safety) which has no underlying common law duty of care absent a special relationship. The plaintiff failed to plead sufficient facts establishing a special relationship, and the undertaker's doctrine is inapplicable because the 911 operator did not increase the risk of harm or control the situation—the operator merely gathered information and dispatched EMS.


Headnotes

[1] Governmental tort liability for operating a 911 emergency call system, a Category II function, requires pleading facts demonstrating a special relationship between the vi…

[2] To establish a special relationship for governmental tort liability, a plaintiff must plead facts showing an express promise or assurance of assistance, justifiable relia…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“The operation of a 911 emergency call system is part of the law enforcement and protection of public safety service provided by a [sheriffs] office and therefore constitutes a Category II function.”

Establishes that 911 operations fall within a governmental function category that has no inherent common law duty of care absent a special relationship.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Charles E. Jordan experienced a medical emergency involving breathing difficulties. His wife called 911 and informed the operator of his condition; th…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
ORFINGER,.J.

ORFINGER,.J.

Appellant, Andrea' Jordan, as personal representative of the Estate of Charles E. Jordan (“Decedent”), filed a wrongful death action against Alvin Nienhuis, in his capacity as Sheriff of Hernando County, Florida, based upon the alleged negligence of a 911 operator in responding to a call for medical assistance.1 The trial court *976found that the Sheriff owed no actionable duty to Decedent and dismissed Appellant’s third amended complaint with prejudice. This appeal followed.2

The third amended complaint alleged Decedent experienced a medical emergency, inhibiting his ability .to breathe. His wife,. Annette Jordan, contacted 911 for assistance, informing the 911 operator of Decedent’s breathing difficulties. The 911 operator told Mrs. Jordan that “help was on the way,” and questioned her about Decedent’s condition. When Decedent’s condition worsened and he lost consciousness, ending up on the floor, the 911 operator directed Mrs. Jordan to “just leave [him] there” while awaiting further assistance from EMS. EMS arrived at the scene and administered CPR, but Decedent ultimately died.

The third amended complaint asserted that the 911 operator negligently misled Mrs. Jordan about the seriousness of Decedent’s medical emergency and induced her not to render aid to Decedent, resulting in his death. The complaint further alleged the 911 operator was negligent in giving Mrs. Jordan instructions on how to care for Decedent, assuring her that help was. on the way, and leading her to believe that there was no need to render further aid. Appellant claimed that Mrs. Jordan relied on the 911 operator’s assurances and did not explore alternative options for responding to Decedent’s emergency, thereby placing Decedent in a zone of danger. The trial court granted the Sheriffs motion to dismiss the third amended complaint with prejudice for failure to state a cause of action,. based on its finding that the Sheriff owed a duty of care only to the general public and not to Decedent individually and that Appellant had failed to sufficiently plead a special relationship between the 911 operator and Decedent.

A trial court’s order granting a motion to dismiss with prejudice is reviewed de novo. See Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009) (reviewing de novo dismissal of complaint for failure to state cause of action). We take the factual allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Ray Coudriet Builders, Inc. v. R.K. Edwards, Inc., 157 So.3d 484, 485 (Fla. 5th DCA 2015). However, general, vague and conclusory statements are insufficient to satisfy the requirement that a pleader allege “a short and plain statement of the ultimate facts showing the pleader is entitled to relief — ” Fla. R. Civ. P. 1.110(b); see Beckler v. Hoffman, 550 So.2d 68, 70 (Fla. 5th DCA 1989).

“[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct.” Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 917 (Fla. 1985). Governmental tort liability generally depends on the nature of the governmental function, and has been broadly divided into four categories. Category I activities include legislative, permitting, licensing, and executive officer functions; category II includes enforcement of laws and the protection of the public safety; category III concerns capital improvements and property control operations; and category IV includes providing professional, educational, and general services for the health and welfare of citizens. Id. at 919. Activities that fall within categories I and II have no underlying common law duty of care; however, liability may nevertheless be imposed when a special *977relationship exists between the tort victim and the governmental actor. Id. at 919-21; see Everton v. Willard, 468 So.2d 936, 938 (Fla.1985). In contrast to categories I and II, there may be governmental tort liability under categories III and IV, excepting those characterized as planning or judgmental. Dean, 3 So.3d at 1053; Trianon, 468 So.2d at 921.

“The operation of a 911 emergency call system is part of the law enforcement and protection of public safety service provided by a [sheriffs] office and therefore constitutes a Category II function.” Pierre v. Jenne, 795 So.2d 1062, 1063 (Fla. 4th DCA 2001). Thus, to impose governmental liability, Appellant was required to plead sufficient facts that, if proven, demonstrate a special relationship existed between the Sheriff and the Decedent. See id.; see also Laskey v. Martin Cty. Sheriff’s Dep’t, 708 So.2d 1013, 1014 (Fla. 4th DCA 1998) (recognizing 911 emergency call system falls within category II, and rejecting assertion that because 911 service relays medical emergency calls as well as those concerning violations of law or fires, it is more closely analogous to category IV function). To establish a special relationship, Appellant was required to plead facts sufficient to show, if proven:

1)an express promise or assurance of assistance;
2) justifiable reliance on the promise or assurance of assistance; and,
3) harm suffered because of the reliance upon the express promise or assurance of assistance.

Pierre, 795 So.2d at 1064.

The trial court correctly concluded that Appellant failed to allege facts sufficient to show the necessary elements to establish a special relationship.3 Nonetheless, Appellant asserts that a liability exists pursuant to the undertaker’s doctrine because the 911 operator increased the risk of harm to Decedent. We disagree and conclude the undertaker’s doctrine is inapplicable. The undertaker’s doctrine applies when government agents engage an injured party, and then either control a situation and increase the risk of harm to the injured party or induce third parties— who would have otherwise rendered aid— to forebear from doing so, thereby placing the injured party in a greater “zone of risk.” Dean, 3 So.3d at 1040.

In Dean, the Florida Supreme Court held that the plaintiff stated a claim for negligence based on the undertaker’s doctrine. In that, case, after responding to a call for a safety check, the sheriff’s deputies gathered information from a neighbor about the subject of the call, entered the unconscious woman’s home, provided an assessment of her safety, and repeatedly assured third parties that the woman was *978asleep and that it was unnecessary to call for an ambulance. Id. at 1043. Based on those assurances, the neighbor did nothing more until the next day when, after finding the woman still unresponsive, she called for an ambulance. The woman ultimately died. Id. The court held that the undertaker’s doctrine applied because the deputies took control of the situation and increased the risk of harm to the woman by discouraging third parties from rendering aid. As a result, the court found that the complaint stated a cause of action for wrongful death.4 Id. at 1052.

Unlike the deputies in Dean, the 911 operator responded to Mrs. Jordan’s call by gathering information on Decedent’s condition and dispatching EMS to provide assistance. The 911 operator did not increase the risk of harm to Decedent or control the situation. It is not enough that a risk merely exists or that it is foreseeable. Instead, the defendant’s conduct must create the risk or control the situation before liability may be imposed. Bongiorno v. Americorp, Inc., 159 So.3d 1027, 1029-30 (Fla. 5th DCA 2015).

We affirm the trial court’s order dismissing Appellant’s third amended complaint with prejudice.

AFFIRMED.

EVANDER and LAMBERT, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (15 total)

  • Fla. Fish & Wildlife Conservation Comm'n v. Daws, 256 So. 3d 907 (Fla. 1st DCA 2018)
    …ictly limited to circumstances where the State owes the plaintiff an underlying common law or statutory duty of care and where the challenged government actions are not discretionary and are not inherent in the act of governing. Jordan v. Nienhuis , 203 So. 3d 974, 976 (Fla. 5th DCA 2016). With this framework in mind, we consider whether the doctrine of sovereign immunity precludes Appellees' constitutional takings claims and their tort-based nuisance claims. 1. Constitutional Claims - Takings Appellees cla…
  • Demase v. State Farm Fla. Ins. Co., 239 So. 3d 218 (Fla. 5th DCA 2018)
    …o. E.g., Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009). In assessing the adequacy of the pleading of a claim, we take the factual allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Jordan v. Nienhuis, 203 So. 3d 974, 976 (Fla. 5th DCA 2016) ; Ray Coudriet Builders, Inc. v. R.K. Edwards, Inc., 157 So. 3d 484, 485 (Fla. 5th DCA 2015). As we shall explain, we hold that an underlying action on the insurance contract is not required for there to be a determination…
  • Maldonado v. Orange Cnty. Pub. Library Sys., 273 So. 3d 278 (Fla. 5th DCA 2019)

Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw