IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CITY OF WINTER PARK,

Appellant,

v. Case No. 5D22-1757

LT Case No. 2021-CA-000042

ROSEMARY VEIGLE,

Appellee.

________________________________/

Opinion filed June 30, 2023

Nonfinal Appeal from the Circuit Court 

for Seminole County,

Jessica Recksiedler, Judge.

Michael J. Roper and Anna E. 

Engelman, of Roper, P.A., Orlando, 

for Appellant.

Brian J. Lee, of Morgan & Morgan, 

Jacksonville, for Appellee.

JAY, J.

An officer from the Winter Park Police Department got into a car 

accident while driving home from work. The other driver involved in the 
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accident sued the City of Winter Park (“Winter Park”), alleging that the city 

was vicariously liable for the officer’s purportedly negligent driving. Winter 

Park moved for summary judgment on sovereign immunity grounds, arguing 

that the officer was not acting within the scope of his employment when the 

accident occurred.

The trial court found that the issue of whether the officer was within the 

scope of his employment was a fact question and denied summary judgment. 

Because we hold that Winter Park proved its entitlement to sovereign 

immunity as a matter of law, we reverse the trial court’s order.

I.

Officer Rojas is a police officer in Winter Park, a municipality in Orange 

County. On June 17, 2019, he was involved in a car accident in Casselberry, 

a municipality in Seminole County. Rosemary Veigle (“Plaintiff”), the driver of 

the other car involved in the accident, sued Winter Park for negligence, 

claiming the city was vicariously liable for Officer Rojas’s driving.

Winter Park moved for summary judgment. The motion averred that 

Officer Rojas was outside the scope of his employment at the time of the 

accident because he was off duty and on his way home from work. Thus, 

Winter Park maintained that it had sovereign immunity against Plaintiff’s suit.
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In support of its motion, Winter Park attached an affidavit from Officer 

Rojas. The affidavit provided that as part of his employment, Winter Park 

assigned him “a take-home patrol vehicle to drive to and from work, and 

during each shift.” Officer Rojas reported that on the day of the accident, his 

shift ended at 3:00 p.m. Thereafter, he left the police station in his take-home 

patrol vehicle. Approximately thirty minutes later, while on his way home 

along his customary route, Officer Rojas was involved in the car accident in 

Casselberry, which is beyond Winter Park city limits. The affidavit concluded, 

“I did not at any time after my shift, and up to the time of this accident, perform 

any duties as a police officer.”

The trial court initially denied Winter Park’s motion without prejudice to 

allow the parties to complete additional discovery. Several months later, 

Winter Park renewed its motion for summary judgment. In all material 

respects, the renewed motion was the same as the first motion. It also relied 

on the same affidavit from Officer Rojas.

Plaintiff deposed Officer Rojas. He testified that on June 17, 2019, he 

completed his shift at 3:00 p.m. and clocked out via the department’s 

electronic timekeeping system. At 3:28 p.m., while driving home in his takehome patrol vehicle along his normal route, he was involved in a car accident 

at an intersection in Casselberry. He was wearing his Winter Park Police 
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Department uniform. Two Casselberry police officers responded to the scene 

of the accident. Casselberry is outside Winter Park city limits, and Officer 

Rojas had no law enforcement authority there. He testified that he did not 

carry out any law enforcement functions from the end of his shift to the time 

of the accident.

After holding a hearing, the trial court denied Winter Park’s renewed 

motion for summary judgment. The court ruled that whether Officer Rojas was 

within the scope of his employment was a disputed issue of material fact for 

a jury to resolve. In this appeal, Winter Park maintains that it proved its 

entitlement to sovereign immunity as a matter of law.1

II.

Our review is de novo. See Fla. Bar v. Rapoport, 845 So. 2d 874, 877 

(Fla. 2003) (“Furthermore, the standard of review on summary judgment 

orders is de novo.”); Lee Mem’l Health Sys. v. Hilderbrand, 304 So. 3d 58, 

60 (Fla. 2d DCA 2020) (“The issue of a party’s entitlement to sovereign 

1 Winter Park also claims that the trial court erred by considering—and,

in Winter Park’s view, misconstruing—Officer Rojas’s deposition, which 

Winter Park argues was not properly part of the summary judgment 

evidence. Because Winter Park did not raise this argument in the trial court, 

it is waived. See Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) 

(“Any basis for reversal of summary judgment must be preserved by raising 

the issue in the trial court.”); see, e.g., Jelic v. CitiMortgage, Inc., 150 So. 3d 

1223, 1226 (Fla. 4th DCA 2014); Vidal v. Liquidation Props., Inc., 104 So. 3d 

1274, 1276 (Fla. 4th DCA 2013).
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immunity is a legal issue subject to the de novo standard of review.”).

To obtain summary judgment, a movant must show that (1) “there is 

no genuine dispute as to any material fact” and (2) “the movant is entitled to 

judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). A dispute is genuine if 

the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 

3d DCA 2022).

Winter Park asserts that because the crash occurred when Officer 

Rojas was on his regular commute home, he was not within the scope of his 

employment as a matter of law. As such, Winter Park concludes that it is 

entitled to sovereign immunity—and, in turn, summary judgment—against

Plaintiff’s claim. On the other hand, Plaintiff maintains the evidence would 

allow a reasonable jury to find that Officer Rojas was acting within the scope 

of his employment, which would preclude sovereign immunity.

The doctrine of sovereign immunity provides that a government and its 

subdivisions cannot be sued without the government’s consent. Fla. Dep’t of 

HRS v. S.A.P., 835 So. 2d 1091, 1094 (Fla. 2002). The relevant portion of 

the sovereign immunity statute reads:

The state or its subdivisions shall not be liable in tort for the acts 

or omissions of an officer, employee, or agent committed while 

acting outside the course and scope of her or his employment or 

committed in bad faith or with malicious purpose or in a manner 
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exhibiting wanton and willful disregard of human rights, safety, or 

property.

§ 768.28(9)(a), Fla. Stat (2019).

Therefore, “[i]n any given situation,” either the government or its 

employee can incur liability, “but not both.” McGhee v. Volusia Cnty., 679 So. 

2d 729, 733 (Fla. 1996); see also Keck v. Eminisor, 104 So. 3d 359, 366

(Fla. 2012) (noting that under the statute, if an employee’s act is not within 

the scope of his employment, “the plaintiff can recover only from the 

employee, not from the State”). Section 768.28(9)(a) provides “both an 

immunity from liability and an immunity from suit, and the benefit of this 

immunity is effectively lost if the person entitled to assert it is required to go 

to trial.” Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006). 

Thus, “the trial judge must act as a gatekeeper” and “should terminate civil 

proceedings when the immunity applies.” Id.

Here, there is no dispute that the accident occurred after Officer 

Rojas’s shift ended, when he was outside his law enforcement jurisdiction,

and while he was on his way home following his customary route. This 

evidence shows that as a matter of law, Officer Rojas was a commuter 

driving home at the time of the accident, not an employee acting within the 

scope of his employment. See Hernandez v. Tallahassee Med. Ctr., Inc., 896 

So. 2d 839, 843 (Fla. 1st DCA 2005) (“Similarly, under the doctrine of 
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vicarious responsibility, the law is well established that an employee driving 

to and from work is not within the scope of employment so as to impose 

liability on the employer.”); accord Peterson v. Cisco Sys., Inc., 320 So. 3d 

972, 974 (Fla. 2d DCA 2021); Dupree v. Speer, 266 So. 3d 884 (Fla. 5th 

DCA 2019).

The fact that Officer Rojas was driving a patrol vehicle does not change 

the analysis. The Florida Supreme Court has held that merely driving a 

government-owned vehicle, which the government has authorized for 

personal use, does not transform an otherwise off-the-clock government 

employee into one acting within the scope of his employment. See Rabideau 

v. State, 409 So. 2d 1045, 1046 (Fla. 1982) (“We hold, therefore, that twentyfour-hour assignment of a state-owned vehicle to a state employee does not 

enlarge state liability under section 768.28 to include acts committed outside 

the employee’s scope of employment.”).

Neither does Officer Rojas’s uniform. In Garcia v. City of Hollywood, 

966 So. 2d 5 (Fla. 4th DCA 2007), Sergeant Redding, a Hollywood police 

officer, struck a pedestrian with his marked, “take-home” patrol car. Id. at 6. 

On the morning of the accident, Sergeant Redding was driving to the police 

station from his residence. Id. The plaintiff argued that a jury issue existed

as to whether Sergeant Redding was in the scope of his employment
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because he was driving a “take-home” patrol vehicle and “was required to be 

in uniform while operating the vehicle.” Id. The Fourth District Court rejected 

these arguments, holding that “at the time of the accident, Sergeant Redding 

was not in the process of carrying out a ‘primary responsibility’ of his job as 

a police officer” because he “was not engaged in the ‘prevention or detection 

of crime or the enforcement of the penal, criminal, traffic, or highway laws of 

the State.’” Id. at 7 (quoting section 440.091(1)(a), Florida Statutes, which 

addresses when a law enforcement officer is acting within the scope of his 

employment for workers’ compensation purposes). Accordingly, the district 

court affirmed the trial court’s conclusion “that at the time of the accident . . . 

Sergeant Redding, who was driving to the police station, was not in the 

course and scope of his employment with the City, and therefore the City 

was not liable as a matter of law.” Id. at 6.

III.

In both his affidavit and deposition—which are unrebutted by anything 

else in the record—Officer Rojas swore that the accident occurred after he 

left work and while he was outside Winter Park city limits (i.e., outside his 

law enforcement jurisdiction). At the time of the accident, he was simply a 

commuter driving home along his usual route. On this record, no reasonable 

jury could find that Officer Rojas was acting within the scope of his 
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employment for Winter Park when his vehicle struck Plaintiff’s vehicle in 

Casselberry approximately thirty minutes after his workday ended. See 

Rabideau, 409 So. 2d at 1046; Garcia, 966 So. 2d at 6–7; Hernandez, 896

So. 2d at 843. Therefore, as a matter of law, Winter Park is entitled to 

sovereign immunity from Plaintiff’s suit. See § 768.28(9)(a), Fla. Stat.; 

Willingham, 929 So. 2d at 48. Accordingly, we reverse the trial court’s order 

and remand with instructions to grant Winter Park’s renewed motion for 

summary judgment.

REVERSED and REMANDED with instructions.

LAMBERT, C.J., and MAKAR, J., concur.