brief on jurisdiction of city of boca raton, florida...city of boca raton, florida respondent. brief...

IN THE SUPREME COURTSTATE OF FLORIDA

CASE NO. SC12-1059 .

PETER MILANESE, as personal representativeof the Estate of Christopher Milanese, 's

Petitioner,

v.

CITY OF BOCA RATON, FLORIDA

Respondent.

BRIEF ON JURISDICTION OFCITY OF BOCA RATON, FLORIDA

ON DISCRETIONARY REVIEW FROM A DECISION OF THE

FOURTH DISTRICT COURT OF APPEAL

Jamie A. Cole, Esq.Florida Bar No. 767573

Edward G. Guedes, Esq.Florida Bar No. 768103

Matthew H. Mandel, Esq.Florida Bar No. 147303

Weiss Serota Helfman Pastoriza Cole &Boniske, P.L.200 E. Broward Blvd., Ste. 1900Fort Lauderdale, Florida 33301Telephone: (954) 763-4242Facsimile: (954) 764-7770

Counselfor City ofBoca Raton, Florida

WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L.

2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA 33134 • TEL. 305-854-O8OO • FAX 305-854-2323

TABLEOFCONTENTS

Paae

TABLE OF CONTENTS........................................................................................... i

TABLE OF CITATIONS.......................................................................................... ii

ABBREVIATIONS USED IN THIS BRIEF........................................................... iii

INTRODUCTION..................................................................................................... 1

STATEMENT OF THE CASE AND FACTS.......................................................... 1

SUMMARY OF ARGUMENT ................................................................................ 1

ARGUMENT ............................................................................................................ 2

I. THE COURT'S LIMITED JURISDICTION................................................. 2

II. THE CASES CITED BY MILANESE DO NOT EXPRESSLYAND DIRECTLY CONFLICT WITH THE DECISIONOBELW. ......................................................................................................... 4

A. The "custody" cases.............................................................................. 4

B. The police "interference" or "undertaking" cases................................ 6

CONCLUSION ......................................................................................................- 10

CERTIFICATE OF SERVICE................................................................................ 11

CERTIFICATE OF COMPLIANCE ...................................................................... 12

1


2525 PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORlDA 33134 • TEL. 305-854-0800 • FAX 3OS-854-2323

TABLE OF CITATIONS

Page

Cases

Aravena v. Miami-Dade County, 928 So. 2d 1163 (Fla. 2006)................................ 3

Crossley v. State, 596 So. 2d 447 (Fla. 1992)........................................................... 3

Dupont Plaza, Inc. v. Dade County, 125 So. 2d 564 (Fla. 1960)............................. 3

Everton v. Willard, 468 So. 2d 936 (Fla.1985)......................................................... 7

Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999) .......................................... 4, 6, 7

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)........................................................... 8

Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989)..................................................... 4, 5, 6

LeMay v. Kondrk, 923 So. 2d 1188 (Fla. 5th DCA 2006).............................. 6, 9, 10

Milanese v. City ofBoca Raton, Florida, Case No. 4D0-5247 ................................ y

State v. Barnum, 921 So. 2d 513 (Fla. 2005)............................................................ 3

Trianon Park [Condo. Ass'n, Inc. v. City ofHialeah],468 So. 2d at 918......................................................................................... 7, 9

Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)..................................................... 6, 8, 9

Walston v. Fla. Highway Patrol, 429 So. 2d 1 3 22(Fla. 5th DCA 1983)................................................................................... 4, 5

Williams v. Dugan, 153 So. 2d 726 (Fla. 1963)........................................................ 3

Statutes

§ 768.28(9)(a), Fla. Stat. ......................................................................................... 10

Constitutional Provisions

Art. V, § 3(b)(3) of the Florida Constitution............................................................. 2

11


2525 PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORIDA 33134 • TEL. 305-854-0800 • FAX 305-854-2323

ABBREVIATIONS USED IN THIS BRIEF

References to petitioner, Peter Milanese, will appear as "Milanese" while

references to respondent, City of Boca Raton, Florida, will appear as "City."

References to Milanese's brief on jurisdiction will appear as "MBJ."

References to the Fourth District Court of Appeal's en banc decision in

Milanese v. City of Boca Raton, Florida, Case No. 4D0-5247, will be to the

pagination reflected in the appendix ("App.") attached to Milanese's brief.

111


2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA 33134 • TEL. 305-854-0800 • FAX 305-854-2323

INTRODUCTION

Milanese asks this Court to exercise its discretionary jurisdiction to review

the Fourth District Court of Appeal's en banc decision below based upon a

purported "express and direct" conflict with certain precedents of this Court and

the Fifth District Court of Appeal. Inasmuch as no "express and direct" conflict

exists, the Court should decline review.

STATEMENT OF THE CASE AND FACTS

While the City objects to Milanese's characterization of the dissent below as

taking "issue with the majority for ignoring various facts" (MBJ at 4, n. 2), the

City otherwise accepts Milanese's statement of the case and facts as supported by

the Fourth District's majority decision.

SUMMARYOFARGUMENT

Since the 1980 amendment of the Florida Constitution, this Court has been a

court of limited jurisdiction, leaving the district courts of appeal to be courts of last

resort in most cases. Milanese improperly invokes the Court's limited jurisdiction

claiming an express and direct conflict that simply does not exist. Milanese's

jurisdictional brief identifies five discreet decisions that he contends expressly and

directly conflict with the en banc decision below. However, a more careful

examination of those cases reveals (i) that they are factually and analytically

distinguishable, and (ii) that finding express and direct conflict here would require

the Court to extend duty of care principles to a situation where they have never

been applied. As even the dissent below acknowledged, the situation presented

1WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L.

2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORlDA 33134 • TEL. 305-854-0800 • FAX 305-854-2323

was one of "first impression." App. at 9 ("Factually, this is a case of first

impression in the reported cases in Florida.").

While Milanese oft invokes the language of conflict, he never actually

articulates the duty of care that the City owed under the facts of the case, but which

the Fourth District allegedly disregarded. Should the City have forcibly prevented

Milanese from leaving when he was not charged? Was the City under a duty to

ensure that Milanese actually entered the taxi that was called for him? Was a

police officer required to follow the taxi all the way to Milanese's home to make

sure he did not prematurely exit the taxi? Was the City required to post an officer

at Milanese's home to ensure he did not leave the residence again? These

questions are largely unanswerable because there is no principled way to impose a

duty of care on the City based on the undisputed facts. As such, there is no express

and direct conflict between the Fourth District's decision and any of the decisions

enumerated by Milanese that would render them irreconcilable. Review should be

denied.

ARGUMENT

I. THE COURT'S LIMITED JURISDICTION.

Pursuant to Art. V, § 3(b)(3) of the Florida Constitution, this Court may:

review any decision of a district court of appeal that ... expressly anddirectly conflicts with a decision of another district court of appeal orof the supreme court on the same question of law.

According to the Commentary to Article V, this section of the State's Constitution

was amended in 1980 to restrict the Court's jurisdiction: the amendment


2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA 33134 • TEL. 305-854-O800 • FAX 305-854-2323

represented "a departure from the existing jurisdiction of the supreme court which

was essentially an appellate court of last resort. Under this amendment, the district

courts of appeal, except in the enumerated cases, are the courts of final appeal."

As the Court, itself, has observed, "[the Court] is without power to simply

assume jurisdiction in a case to correct what [it] perceive[s] as error, even if the

issue appears to be important ...." State v. Barnum, 921 So. 2d 513, 523 (Fla.

2005). A conflict has been said to be direct when another decision concerns "the

same point of law and leaves the jurisprudence of the State on the point of law in

confusion and lacking uniformity." Dupont Plaza, Inc. v. Dade County, 125 So. 2d

564, 565 (Fla. 1960). Conflict jurisdiction arises when there is a "collision on a

point of law" and where "two decisions are wholly irreconcilable." Williams v.

Dugan, 153 So. 2d 726, 727 (Fla. 1963). Further, where a DCA reaches the

opposite result on controlling facts which, if not identical, more strongly dictate the

result reached by the alleged conflict case, then a conflict exists warranting the

acceptance of jurisdiction. Aravena v. Miami-Dade County, 928 So. 2d 1163,

1166-67 (Fla. 2006) (citing Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992)).

However, the "conflicting" decisions should be largely "irreconcilable." Id..

Milanese has failed to demonstrate the kind of express and direct conflict

needed for this Court to exercise its jurisdiction for he has not demonstrated how

the decision below is "wholly irreconcilable" with a prior precedent of this Court

or another district court of appeal.



II. THE CASES CITED BY MILANESE DO NOT EXPRESSLYAND DIRECTLY CONFLICT WITH THE DECISION BELOW.

The question of whether a duty of care exists and is owed under a particular

set of facts is a matter of law for the trial court to decide, not the jury. Henderson

v. Bowden, 737 So. 2d 532, 536 (Fla. 1999) ("[D]uty exists as a matter of law and

is not a factual question for the jury to decide: Duty is the standard of conduct

given to the jury for gauging the defendant's factual conduct."). None of the cases

identified by Milanese addresses duty of care under facts substantially similar to

those in this case.

A. The "custody" cases.

Two of the cases identified by Milanese - Kaisner v. Kolb, 543 So. 2d 732

(Fla. 1989) and Walston v. Fla. Highway Patrol, 429 So. 2d 1322 (Fla. 5th DCA

1983) - are immediately distinguishable because they were decided on the basis

that the police officers in question had active custody of the plaintiffs at the time

the accidents happened. Thus, in Kaisner, this Court reasoned that

In this case, we find that petitioner was owed a duty of care by thepolice officers when he was directed to stop and thus was deprived ofhis normal opportunity for protection. ... So long as petitioner wasplaced in some sort of "custody" or detention, he is owed a commonlaw duty of care.

* * *Petitioner and his family unquestionably were re-strained of theirliberty when they were ordered to the roadside. They were notfree toleave the place where the officers had ordered them to stop. Petitionereffectively had lost his ability to protect himself and his family fromthe hazard at hand, which consisted of onrushing traffic. The onlyway petitioner could have escaped this threat would have been bydisobeying the officers' instructions that he remain ... where they had


2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORIDA 33134 . TEL. 305-854-0800 • FAX 305-854-2323

stopped him, thus subjecting himself to immediate arrest and criminalcharges. Under these circumstances, petitioner clearly wassufficiently restrained of liberty to be in the "custody" or control ofthe police. Thus, the officers owed him and his family a duty of carearising under the common law ofFlorida.

543 So. 2d at 734 (emphasis added).' The Kaisner Court cited to the Fifth Distict's

decision in Walston as "indistinguishable" from the facts in Kaisner, because "an

officer detained a person at roadside despite evidence of the danger posed by

onrushing traffic."2 Id. at 735 (citing Walston, 429 So. 2d at 1324).

Unlike the situations in Kaisner and Walston, Milanese was not in custody

or otherwise restricted by police action so that he was "deprived of his normal

opportunity for protection" when the accident occurred. Kaisner, 543 So. 2d at

734. The accident did not occur roadside, during transport or at the station. On the

contrary, Milanese was released from custody, a taxi was called for him, and he

was escorted to the station door. App. at 2. Therefore, there can be no express and

direct conflict between the Fourth District's decision and either Kaisner or Walston

Additionally, unlike here, the Court noted that an expert affidavit had beensubmitted attesting to the fact that the police had failed to follow properpolice procedure during the stop and it created an issue of fact. Kaisner, 543So. 2d at 733, 736. No similar allegation was made by Milanese.

2 In Walston, the plaintiffs were under arrest at the time of the accident. 429So. 2d at 1323-24. The Fifth District described the facts as follows: "Therecord reveals that Trooper Holder admitted that he was taught not to allowpeople to stand between cars during highway stops; furthermore, he hadexpressed (to himself) concern for the safety of [the plaintiffs] when he sawthem standing between the cars ...; Holder initially led Bartleman betweenthe two cars; neither [plaintiff], both of whom were drunk, was ever warnedby either arresting trooper about the danger." 429 So. 2d at 1324.

5WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P. L.

2525 PONCE DE LEON BOULEVARD, SUITE 700, CORAL GABLES, FLORlDA 33134 • TEL. 305-854-0800 • FAX 305-854-2323

where the fundamental analytical premise of the latter cases - custody at the time

of the accident - is missing here.

B. The police "interference" or "undertaking" cases.

The remaining three cases identified by Milanese - Henderson, supra;

Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009); and LeMay v. Kondrk, 923 So. 2d

1188 (Fla. 5th DCA 2006) - are immediately distinguishable because in each

instance, the police actively injected themselves into the situation by interfering

with the plaintiffs' liberty, directing their actions or undertaking a specific duty

they were otherwise not required to undertake, which resulted in the accidents.

Thus, in Henderson, the police officers, after arresting the intoxicated driver

of a vehicle and while still at the scene of the arrest, directed another obviously

intoxicated passenger in the vehicle to drive the vehicle (along with the remaining

passengers) to a nearby convenience store (or suffer impoundment of the vehicle).

737 So. 2d at 533-34. When one of the officers later followed to the convenience

store, he observed the vehicle drive away at a high rate of speed and the officer

pursued, leading to the eventual crash that killed the passengers.3 Id. at 534.

Citing Kaisner, the Court took pains to distinguish Henderson from those

cases where immunity might apply. The Court's focus was plainly on the officer's

affirmative directive to the passengers:

The allegation that the deputies affirmatively directed an intoxicatedLyons to drive the vehicle distinguishes this case from those cases

3 The plaintiffs also asserted a tort claim for negligent pursuit. Id. at 533.



which hold that a government entity has no common-law duty toenforce the law for the benefit of an individual or a specific group ofindividuals, see Trianon Park [Condo. Ass'n, Inc. v. City ofHialeah],468 So. 2d at 918; see also Everton v. Willard, 468 So. 2d 936(Fla.1985) ("A law enforcement officer's duty to protect the citizensis a general duty owed to the public as a whole."), and that agovernmental entity has no duty to protect the general public from thelawless acts of third parties.

737 So. 2d at 536 n. 8 (emphasis added). Unlike the situation in Henderson, the

officers here did not direct Milanese to do anything or otherwise interfere with his

behavior after being released. Instead, the officers merely engaged in the prudent

act of calling him a taxi and expeditiously escorting him to the door.4

Milanese latches onto the following dicta from Henderson to assert a

conflict: "There may be no duty to take care of a man who is ill or intoxicated, and

unable to look out for himself; but it is another thing entirely to eject him into the

danger of a street or railroad yard; and if he is injured there will be liability." MBJ

at 7 (citing Henderson, 737 So. 2d at 537). Of course, Henderson was not decided

on the basis of the language cited, but rather on the fact that the police

"affirmatively directed an intoxicated [passenger] to drive the vehicle." 737 So. 2d

at 536 n. 8. Milanese cannot premise his claim of conflict on dicta - a conflict

4 Citing the dissent, Milanese takes issue with the fact that the officers "nevereven determined if the cab had ever arrived." MBJ at 5 n. 2. Assumingsuch an obligation even existed, it is undisputed, however, that the taxi wascalled and did arrive two minutes after it was called and one minute beforeMilanese was escorted to the station door. App. at 2.



must be based on an express ruling of the Court.5 Jenkins v. State, 385 So. 2d 1356

(Fla. 1980).

Milanese's reliance on Wallace to establish conflict is even more unavailing.

In Wallace, police were called to a home for a safety check after neighbors were

unable to reach the resident.6 Upon entering, they discovered the resident but were

unable to rouse her, despite "repeatedly scream[ing] her name" and "aggressively"

shaking her. 3 So. 3d at 1043. The Court described the scenario as follows:

In spite of these repeated, intensive efforts to arouse Brenda, sheremained completely unresponsive. Ginder then requested that thedeputies summon an ambulance, but the deputies "rebuffed" thisrequest by repeatedly assuring Ginder that it was unnecessary to doso because Brenda was merely sleeping. Moreover, Ginder's fathersuggested that Brenda might have lapsed into a diabetic coma, towhich one of the deputies replied, "One does not snore if in a diabeticcoma." Ginder and her father relied on the deputies' repeatedassurances that Brenda was simply sleeping and their continuedaffirmation that emergency help was not immediately required.

Even if this were not the law, the fact remains that the City did not "eject"Milanese into the "danger of a street or railroad yard." The City calledMilanese a taxi, which arrived on time. The fact that Milanese did not takethe taxi does not legally create a duty of care for the City, any more than itwould have if Milanese had gotten in the taxi and disembarked three blocksaway from the station or if he had gotten home and then decided to leave hisresidence on foot before being injured.

6 The Court found conflict in Wallace because the decision under review"involved the substantially similar factual scenario of an allegedly negligentlaw-enforcement response to a safety check, which the respective plaintiffscontended increased the risk of harm to their decedents." 3 So. 3d at 1039.



Id. (emphasis added). The Court described the issue before it as "whether the

undertaker's doctrine applies to governmental officers who have affirmatively

responded to a 911 call, actually engaged an individual, and undertaken to

perform a safety check." Id. at 1040 (emphasis added).

The Wallace Court eventually concluded that what the officers did was akin

to "providing professional, educational, and general services for the health and

welfare of ... citizens." Id. at 1049 (citing Trianon, 468 So. 2d at 919). The Court

reasoned: "Voluntarily undertaking to do an act that if not accomplished with due

care might increase the risk of harm to others or might result in harm to others due

to their reliance upon the undertaking confers a duty of reasonable care, because it

thereby 'creates a foreseeable zone of risk.'" Id. at 1050 (emphasis added).

Unlike what occurred in Wallace, the officers in this case did not voluntarily

undertake to render professional services and/or advice that resulted in others

detrimentally relying on such service or arguably unqualified advice. The record

does not reflect that the City's officers counseled or directed Milanese or caused

anyone to forebear from taking action to assist Milanese; they merely called him a

taxi and escorted him to the door of the station. By asserting conflict, Milanese is

effectively asking this Court find a duty of care where none has previously been

found.

The last decision erroneously identified by Milanese as creating an express

and direct conflict is LeMay. Like the preceding two cases, LeMay involved a

situation where a police officer directly interfered with or directed the conduct of

the plaintiff, which led to a subsequent accident:


2525 PONCE DE LEON BOULEVARD, SUlTE 700, CORAL GABLES, FLORIDA 33134 • TEL. 305-854-O800 • FAX 305-854-2323

[The officer] ordered Mr. Younce to walk in one direction on thehighway, and Mr. Ault to walk the other way. Mr. Ault got to a nearbystop sign and then returned to the store. The deputy intercepted Mr.Ault with his vehicle, and said to him, "No, I told you to go." Mr.Ault, who was wearing dark clothing, then walked down the two-lane,unlit rural highway with no sidewalks or paved shoulders, and was hitby a car and killed somewhere between four and fifteen minutes later.Postmortem tests reflected that Mr. Ault had a blood alcohol level of0.158.

Id. at 1189-90 (emphasis added). In contrast, the City's officers did not direct

Milanese to leave, to travel in any particular direction or interfere with his choice

of direction.

Additionally, it appears that the question of whether a duty of care was owed

in the first instance was not disputed in LeMay, since the Fifth District's analysis

seems to skip over the duty question and proceed directly to determining that a

disputed factual inquiry precluded summary judgment on the basis of immunity

under section 768.28(9)(a), Florida Statutes. Id. at 1190. Because the Fifth

District did not actually rule on the existence of a duty of care, but rather whether

immunity was validly asserted, LeMay cannot form the basis for express and direct

conflict that would support this Court's jurisdiction.

CONCLUSION

None of the five cases identified by Milanese presents a sufficiently similar

factual or legal context that would yield an irreconcilable express and direct

conflict with the Fourth District's en banc decision below. As such, the City

respectfully requests that the Court deny review.



Respectfully submitted,

Jamie A. Cole, Esq.Florida Bar No. 767573

Edward G. Guedes, Esq.Florida Bar No. 768103

Matthew H. Mandel, Esq.Florida Bar No. 147303

Weiss Serota Helfman Pastoriza Cole &Boniske, P.L.200 E. Broward Blvd., Ste. 1900Fort Lauderdale, Florida 33301Telephone: (954) 763-4242Facsimile: (954) 764-7770

Counselfor City ofBoca Raton

By:Edward G. Gue s

CERTIFICATE OF SERVICE

I certify that a copy of this respondent's brief on jurisdiction was mailed on

June Í 012 to James K. Green, Esq. (Counsel for Petitioner), James K. Green,

P.A., Suite 1650, Esperanté, 222 Lakeview Avenue, West Palm Beach, Florida

33401.

Edward G. Gue)ies



CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Times New Roman, 14-point

font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

Edward G. Guedes)



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