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Sierra v. Associated Marine Institutes6/18/2003
at 988-89 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). Nevertheless, the court refused to rule as a matter of law that the plaintiffs' inability to prove bad faith, maliciousness, or wanton and willful conduct on the officials' part precluded them from proving a deliberate deprivation of rights for purposes of their ยง 1983 claim. Crocker, 778 So. 2d at 989.
Especially in light of Turner and Crocker, we are unable to declare that the "substantial certainty of injury " standard for avoiding workers' compensation immunity requires misconduct of a degree that would necessarily be "wanton and willful" and therefore immunize a government defendant under section 768.28(9)(a). More particularly, Mrs. Sierra's second amended complaint did not affirmatively and clearly demonstrate the conclusive applicability of this sovereign immunity defense. Therefore, the circuit court erred by dismissing her action on this ground.
Finally, the circuit court accepted the defendants' argument that they were shielded by sovereign immunity because the acts alleged in the second amended complaint were planning level activities for which sovereign immunity has not been waived. See Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 919 (Fla. 1985). For purposes of this discussion we assume that AMI and BCWI were agents of the state although, as previously discussed, their status as such could not be determined at the pleadings stage in this case. Of course, if they were not agents of the state, they were not entitled to sovereign immunity, period.
As a preliminary matter, we note that the defendants do not dispute that they owed Sierra a duty of care. See Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999) (reiterating that the question of sovereign immunity does not arise until it is determined that the defendant owes a duty of care to the plaintiff); Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989) (same). Indeed, it is easy to see that the defendants' actions foreseeably placed their employee, Sierra, in a zone of increased risk, giving rise to a common law duty on their part either to lessen the risk or to protect him against it. See Henderson, 373 So. 2d at 537; Kaisner, 543 So. 2d at 735-36; see also Bardy v. Walt Disney World Co., 643 So. 2d 46 (Fla. 5th DCA 1994).
We turn now to the question of whether the conduct alleged by Mrs. Sierra constituted planning level activity for which sovereign immunity has not been waived. As made clear in Kaisner, the simple classification of a government endeavor as a law enforcement or public safety activity pursuant to Trianon Park does not shield the actor from liability. The court emphasized that the planning or "discretionary" function exception to government tort liability is grounded in the separation of powers. Kaisner, 543 So. 2d at 736 (citing Trianon Park, 468 So. 2d at 918, and Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022 (Fla. 1979)). "That is," the Kaisner court wrote, "it would be an improper infringement of separation of powers for the judiciary, by way of tort law, to intervene in fundamental decisionmaking of the executive and legislative branches of government, including the agencies and municipal corporations they have created." Id.
Kaisner held that this principle does not shield acts that are "operational" in nature. An act is operational if it "is not one necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented." Id. at 737. On the other hand, governmental acts are "discretionary" and immune if they involve "an exercise of executive or legislative power such that, for the court to i
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