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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A student sued his physical education instructor and school board for injuries sustained while performing mandatory acrobatics on a trampoline. The trial court dismissed the instructor as a defendant based on statutory immunity, but the appellate court reversed, holding that Florida's tort immunity statute provides indemnification for employees' judgments rather than immunity from suit.
The court held that Section 768.28(9) operates only to indemnify an employee of the state for monetary judgments resulting from negligent acts within the scope of employment, but does not bar suit against the employee as a party defendant. The statute does not provide immunity from suit.
[1] A statute indemnifying a state employee for monetary judgments arising from acts within the scope of employment does not bar a suit against the employee personally.
[2] A statute providing indemnification for an employee's tortious conduct within the scope of employment does not grant the employee immunity from suit.
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Join FLexlaw to unlock all legal intelligence“Section 768.28(9), Florida Statutes (1975), does not clearly provide that no cause of action may be sustained against an employee of the Board, nor does it clearly provide that an individual employee is immune from suit as a result of injuries sustained due to his negligence.”
Establishes that the statute does not expressly grant immunity from suit to state employees.
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Join FLexlaw to unlock all legal intelligenceRobert Talmadge, a student at Tavares Middle School, was injured while performing acrobatics on a trampoline under the direction of his PE instructor,…
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RYDER, Judge.
Talmadge appeals an order of the trial court dismissing Walters as a defendant in a suit filed by Talmadge against Walters, appellee District School Board of Lake County (Board), and their insurer, Auto Owners Insurance Company. We reverse for reasons hereafter expressed.
Talmadge was a student at Tavares Middle School and Walters was his physical education instructor. Talmadge filed a complaint against Walters, the Board, and its insurer seeking damages for injuries received while Talmadge was performing on a trampoline. The complaint alleged that Walters forced Talmadge to perform certain acrobatics on the trampoline against his will, and while so performing, Talmadge sustained injuries to his knee and teeth. Talmadge further alleged Walters had provided him with only minimal instructions on the trampoline and that Talmadge had little experience on the equipment and was therefore unprepared to safely perform the acrobatics demanded by Walters.
Walters filed a motion to dismiss himself as a defendant in the lawsuit on the ground that, under Section 768.28(9), Florida Statutes (1975), no cause of action exists against him. The motion to dismiss was granted and the propriety of the granting of this motion is the sole issue on appeal.
Section 768.28(9), Florida Statutes (1975), does not clearly provide that no cause of action may be sustained against an employee of the Board, nor does it clearly provide that an individual employee is immune from suit as a result of injuries sustained due to his negligence. While it does state, “No . . . employee, or agent of the state . . . shall be held personally liable in tort . . .,” the statute goes on to indemnify such an employee for a monetary judgment rendered against him personally with the following language:
“. . . [T]he state shall pay any monetary judgment which is rendered in a civil action personally against an . employee . . . which arises as a result of any act . within the scope of his employment.”
We hold that this statute acts only to indemnify an employee of the state for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment, but does not operate as a bar against suing such an employee as a party defendant. Had the legislature intended that individual employees be immune from suit, they would have clearly so stated.
In so holding, we find it was, therefore, error to dismiss Walters as a defendant in the instant case.
Reversed and remanded for proceedings consistent with this opinion.
OTT, Acting C. J., and DANAHY, J., concur.
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Dist. Sch. Bd. OF Lake Cnty. v. Talmadge, 381 So. 2d 698 (Fla. 1980)…Justice. We here interpret one aspect of the state’s waiver of sovereign immunity statute, against a background of conflicting district court decisions. Donner v. Hether-ington, 370 So. 2d 1225 (Fla. 3d DCA 1979); Talmadge v. District School Board, 355 So. 2d 502 (Fla. 2d DCA 1978); Paul v. Heritage Insurance Co. of America, 363 So. 2d 563 (Fla. 3d DCA 1978); Metropolitan Dade County v. Kelly, 348 So. 2d 49 (Fla. 1st DCA 1977); Pennington v. Serig, 353 So. 2d 107 (Fla. 3d DCA 1977). The issue presented is wh…
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Rice v. LEE, 477 So. 2d 1009 (Fla. 1st DCA 1985)…against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function. (Emphasis supplied.) The case of Talmadge v. District School Board of Lake County, 355 So. 2d 502 (Fla.2d DCA 1978) (Talmadge I), involved review of a trial court ruling in a negligence action wherein the School Board, its insurer, and one of the Board’s employees were named as parties defendant. The trial court had ruled that under the provisio…
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Donner v. Hetherington, 370 So. 2d 1225 (Fla. 3d DCA 1979)…uel and unusual punishment.” We hold that summary judgment was improperly entered in McCardel’s favor.1 In Paul v. Heritage Ins. Co. of Amer [*1227] ica, 363 So. 2d 563 (Fla. 3d DCA 1978), following Talmadge v. District School Board of Lake County, 355 So. 2d 502 (Fla. 2d DCA 1978), we interpreted Sec. 768.28(9), Florida Statutes (1977) to permit the maintenance of an action against a public employee “as a result of negligent acts occurring within the scope of his employment.” 363 So. 2d, at 564. It is clear…
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