NOCCO, SHERIFF OF PASCO COUNTY

v.

WILCOX

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CHRIS NOCCO, in his official capacity as Sheriff of Pasco County,

Appellant,

v.

DAKOTA WILCOX,

Appellee.

No. 2D2024-1585

June⁶, 2025

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pasco County; Kimberly Sharpe Byrd, Judge.

Benjamin D. Baird and Thomas W. Poulton of DeBevoise & Poulton, P.A., Winter Park, for Appellant.

Jennifer Ann Burns of Carlson Meissner Hayslett P.A., Clearwater, for Appellee.

SLEET, Chief Judge.

In this interlocutory appeal, Chris Nocco, in his official capacity as Sheriff of Pasco County, challenges the nonfinal order denying his motion for summary judgment entered in favor of Dakota Wilcox in the underlying negligent training action. On appeal, Sheriff Nocco argues that the trial court erred in denying his motion for summary judgment

2 on sovereign immunity grounds because he was engaged in a discretionary function which makes him immune from suit. Because the negligent training cause of action alleged in Wilcox's complaint is premised upon the Sheriff's planning-level decisions, he is entitled to sovereign immunity, and we reverse.

I.

BACKGROUND

It appears from the summary judgment evidence presented below that on April 14, 2016, Dakota Wilcox, a then-thirteen-year-old student at Bayonet Point Middle School, attempted to climb over a fence and reenter the school after dismissal to retrieve his computer tablet. The school shared a campus with Fivay High School, and Wilcox was confronted by Fivay Principal Marsha VanHook and Bayonet Point Assistant Principal Kathy Wild. While walking Wilcox to the principal's office, Principal VanHook heard Wilcox say: "There is no use anyway, no one cares. I'm going to cut myself." Assistant Principal Wild heard Wilcox say that he would either "cut" or "kill" himself. Wilcox did not clarify his statement. The Bayonet Point school resource deputy was called to the principal's office and observed that Wilcox was visibly agitated, rocking back and forth, sweating, breathing rapidly, and clenching his hands and had bouts of crying. Both school administrators, Principal VanHook and Assistant Principal Wild, reported Wilcox's self-harm statements to the school resource deputy. Additionally, Wilcox told the deputy that he thought about killing himself all the time, that he tried to cut his wrist with the lid of a can, that he thought he would be better off dead, and that he wished he were dead. When Wilcox's stepmother arrived at the school, she called Wilcox's mental health counselor Holly Edgren. After Edgren spoke with Wilcox

1 §§ 394.451-.47892, Fla. Stat. (2021).

4

II.

ANALYSIS

On appeal, Sheriff Nocco argues that the trial court erred in denying his motion for summary judgment as to the negligent training count because the court improperly considered the timeliness of the school resource deputy's Baker Act training when it was outside the scope of the operative complaint. He further argues that even if the timeliness was within the scope, the Sheriff's training decisions, including when to conduct training, are discretionary functions—not operational—and therefore he is immune from suit. We review de novo the trial court's denial of the Sheriff's motion for summary judgment based on sovereign immunity. See City of New Port Richey v. Lamko, 359 So. 3d 840, 843 (Fla. 2d DCA 2023). The State of Florida and its subsidiaries—including its agencies and subdivisions—are generally immune from tort liability; however, Florida has waived this immunity "under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state." § 768.28(1), Fla. Stat. (2023); see also art. X, § 13, Fla. Const. Yet even if the claim contained sufficient allegations of tort liability under which a private person would be liable, the waiver of sovereign immunity would still not apply if the challenged acts of the state agent were "discretionary" governmental acts rather than merely "operational" ones. See Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004) ("[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity."). "In this context, a 'discretionary,' planning-level function involves 'an exercise of executive or legislative power such that a court's intervention by way of tort law would inappropriately entangle the

KELLY and MORRIS, JJ., Concur.

Opinion subject to revision prior to official publication.