UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROBERT GENE WELLS,

Case No.: 5:21-cv-00019-TKW-MJF

Plaintiff, 

v.

TOMMY FORD, in his official 

capacity as SHERIFF OF BAY COUNTY, 

and RICK ANGLIN, in his supervisor capacity,

Defendants.

________________________________________/

PLAINTIFF’S SUR-REPLY IN OPPOSTION TO 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff, Robert Gene Wells, files this Sur-Reply in Opposition to 

Defendants’ Motion for Summary Judgment. Pursuant to this Court’s Order [Doc. 

70], the sur-reply is limited to the issue of whether the “undertaker’s doctrine” is 

applicable to the present matter, as it was raised for the first time in Defendants’ 

Reply.

With little explanation, Defendants argue that pursuant to the “undertaker’s 

doctrine,” one who undertakes an act thereby becomes obligated to use reasonable 

care. [Doc. 64, pg. 19]. It concludes this brief section by arguing that the 

“undisputed, record evidence in this case establishes that [the] Sheriff acted with 

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reasonable care in the classification and confinement of Plaintiff.” [Id.]. Ultimately, 

it appears that Defendants argue that the doctrine is inapplicable here.

The Florida Supreme Court, in Wallace v. Dean, discussed the Undertaker’s 

Doctrine extensively. 3 So. 3d 1035 (Fla. 2009). The Court analyzed the doctrine

and determined that 1) the sheriff owed a common-law duty of care to the victim; 

and 2) because the deputies’ actions were undertaken within the scope of their duties 

and clearly operational in nature, the sheriff was subject to “responsibility and 

accountability[.]” Id. at 1054. To support its holding, the court referenced the First 

District Court of Appeal’s decision in Hartley v. Floyd, 512 So. 2d 1022 (Fla. 1st 

DCA 1987), as “particular significance” to its ruling. 

In Hartley, the court reviewed a final judgment in favor of the appellee, which 

arose out of a situation in which a deputy with the Levy County Sheriff’s Office 

assured the wife of a missing man that he would check the boat ramp from which 

her husband had launched his boat earlier that day. Hartley, 512 So. 2d at 1023. The 

deputy then failed to check the ramp but told the wife he had done so. Id. at 1023-

24. Consequently, in reliance upon the deputy’s assertion, the wife did not conduct 

any further effort to locate her missing husband. Id. The next morning, she was again 

told that a deputy had checked the ramp. Id. Eventually, the wife contacted the Coast 

Guard, initiating a search. Id. at 1024. 

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The Sheriff of Levy County argued that he was entitled to immunity because 

“first, the alleged negligence on the part of the sheriff’s deputy involved an exercise 

of discretion and not merely a ministerial or operational activity, and, second, 

because he owed no special duty to Mrs. Floyd different from his general duty to the 

public at large.” Id. The court stated that once the deputy told Mrs. Floyd he would 

go to the boat ramp and look for her husband and make contact with the Coast Guard, 

“he had a duty to perform these tasks with reasonable care. His negligent failure to 

perform the tasks once he agreed to do so can be a basis for holding the sheriff 

liable.” Id. (citations omitted, italics added). 

In Wallace, the appellant alleged that two Marion County Sheriff’s deputies 

had responded following a 911 call, and then “undertook to determine [the subject 

of the 911 call’s] safety, thereby assuming a duty of care, and negligently increasing 

the risk of harm that [the subject] faced by failing to summon an ambulance, which 

proximately resulted in [her] death.” Wallace, 3 So. 3d at 1041. The Court explained 

that the deputies were not at the subject’s property pursuant to the Fourth 

Amendment, i.e., “to enforce any law and certainly were not engaged in the 

protection of the general public; instead, they affirmatively sought to provide a 

service (a 911 safety check) to a specific individual[.]” Id. at 1049 (citations omitted, 

emphasis added). 

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As to whether the deputies “simply” exercised poor judgment in failing to call 

the ambulance, which the sheriff asserted should afford him immunity, the Court 

stated “even ‘poor judgment’ may result in negligence” because

A failure to conform to the standard [of care] is 

negligence, therefore, even if it is due to clumsiness, 

stupidity, forgetfulness, an excitable temperament, or even 

sheer ignorance. An honest blunder, or a mistaken belief 

that no damage will result, may absolve the actor from 

moral blame, but the harm to others is still as great, and 

the actor’s individual standards must give way in this area 

of the law to those of the public. In other words, society 

may require a person not to be awkward or a fool. Prosser 

and Keeton on the Law of Torts § 31, at 169 (W. Page 

Keeton, et al. eds., 5th ed.1984) (footnotes omitted).

Wallace, 3 So. 3d at 1042 (brackets in original).

The Wallace court analyzed whether the sheriff “owed the decedent a 

common-law duty of care pursuant to traditional principles of tort law without 

having to engage in any inquiry concerning the public-duty doctrine or whether a 

‘special duty’ or ‘special relationship’ existed between the Sheriff and the 

decedent[.]” 3 So. 3d at 1050 (citing Trianon Park Condo. Assoc. v. City of Hialeah, 

468 So. 2d 912 (Fla. 1985)). The court opined:

Where a defendant’s conduct creates a foreseeable zone of 

risk, the law generally will recognize a duty placed upon 

[the] defendant either to lessen the risk or see that 

sufficient precautions are taken to protect others from the 

harm that the risk poses.

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[A]s the risk grows greater, so does the duty, because the 

risk to be perceived defines the duty that must be 

undertaken.

Id. (quoting McCain v. Florida Power Corp, 593 So. 2d 500, 503 (Fla. 1992)

(“[T]he trial and appellate courts cannot find a lack of duty if a foreseeable zone 

of risk more likely than not was created by the defendant.”)). The Wallace Court 

then explained the undertaker’s doctrine duty in detail, and as it is critical to 

Plaintiff’s claims, it is worth reviewing in full:

Three sections of the Restatement (Second) of Torts 

(1965) outline the parameters of this doctrine. 

First, section 323 provides:

One who undertakes, gratuitously or for 

consideration, to render services to another 

which he should recognize as necessary for 

the protection of the other's person or things, 

is subject to liability to the other for physical 

harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if

(a) his failure to exercise such 

care increases the risk of such harm, or

(b) the harm is suffered because of the 

other’s reliance upon the undertaking.

(Emphasis supplied.) Section 323 “applies whether the 

harm to the other or his things results from the defendant's 

negligent conduct in the manner of his performance of the 

undertaking, or from his failure to exercise reasonable care 

to complete it or to protect the other when he discontinues 

it”; however, “[t]he actor may normally abandon his 

efforts at any time unless, by giving the aid, he has put the 

other in a worse position than he was in before the actor 

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attempted to aid him.” § 323 cmts. a, c (emphasis 

supplied). Consequently,

[w]here ... the actor’s assistance has put the 

other in a worse position than he was in 

before, either because the actual danger of 

harm to the other has been increased by the 

partial performance, or because the other, in 

reliance upon the undertaking, has been 

induced to forego other opportunities of 

obtaining assistance, the actor is not free to 

discontinue his services where a reasonable 

man would not do so. He will then be 

required to exercise reasonable care to 

terminate his services in such a manner that 

there is no unreasonable risk of harm to the 

other, or to continue them until they can be so 

terminated.

§ 323 cmt. c (emphasis supplied). Section 324 provides 

further elucidation of these general principles in situations 

where the actor “takes charge” of the injured party:

One who, being under no duty to do so, takes 

charge of another who is helpless adequately 

to aid or protect himself is subject to liability 

to the other for any bodily harm caused to 

him by

(a) the failure of the actor to exercise

reasonable care to secure the safety of the

other while within the actor's charge, or

(b) the actor's discontinuing his aid or 

protection, if by so doing he leaves the other 

in a worse position than when the actor took 

charge of him.

(Emphasis supplied.) Finally, section 324A supplies 

additional insight concerning the type of harm that the 

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tortfeasor's alleged negligent undertaking must have 

caused for the courts to recognize a duty of care:

One who undertakes, gratuitously or for 

consideration, to render services to another 

which he should recognize as necessary for 

the protection of a third person or his things, 

is subject to liability to the third person for 

physical harm resulting from his failure to 

exercise reasonable care to protect his 

undertaking, if

(a) his failure to exercise reasonable 

care increases the risk of such harm,

(b) he has undertaken to perform a duty 

owed by the other to the third person, or

(c) the harm is suffered because of 

reliance of the other or the third person upon

the undertaking.

(Emphasis supplied.) The disjunctive “increased risk” and 

“reliance” requirements are both key factors in limiting 

potential liability. See Clay Elec., 873 So. 2d at 1188; see 

also Restatement (Second) of Torts § 324A, cmts. c, e 

(1965).

Wallace, 3 So. 3d at 1050-52 (some italics in original, some added).

Moreover, as explained in Wallace, liability can be imposed if the actor fails 

to exercise reasonable care to complete the duty undertaken, or to protect the person 

to whom the duty is owed, should he discontinue the actions. 3 So. 3d at 1050. While 

the actor may normally abandon his efforts at any time, he cannot do so if by giving 

the aid he has put the person in a worse position than before the actor engaged his 

actions. Id.

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In light of the above, Plaintiff is unclear as to why the Defendants included 

the “undertaker’s doctrine” in their Reply. It actually benefits the Plaintiff’s 

negligence claim (Count VI) in that the Defendants undertook to care for the Plaintiff 

and failed to exercise reasonable care in doing so. Although Defendants have 

referenced this doctrine in their Reply, they do not appear to argue that it absolves 

them of liability, instead arguing that Plaintiff never filed any type of complaint 

about his housing or treatment by other inmates, and thus it cannot be liable for 

negligence. 

In making this argument, Defendants have apparently overlooked the fact that 

the Plaintiff has a severe brain injury and even has a guardian prosecuting this case 

on his behalf. Nowhere have Defendants brought forward any evidence that Mr. 

Wells could have, knew how to, or was in any way able to file a complaint. In fact, 

another inmate who witnessed the attack on Mr. Wells filed a complaint after 

witnessing the abuse to him in the Defendant Sheriff’s Jail. 

CONCLUSION

Disputed issues of material fact remain, requiring resolution by the jury. 

Accordingly, Defendant’s Motion for Summary Judgment should be denied. 

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Respectfully submitted,

/s/ Marie A. Mattox

Marie A. Mattox [FBN 739685]

MARIE A. MATTOX, P.A. 

203 North Gadsden Street

Tallahassee, Florida 32301

Telephone: (850) 383-4800

Facsimile: (850) 383-4801

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF COMPLIANCE

I hereby certify in accordance this Court’s Order, that this response contains 

1960 words.

/s/ Marie A. Mattox

Marie A. Mattox

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been served this 

12th day of July 2022 via CM/ECF to all parties of record.

/s/ Marie A. Mattox

Marie A. Mattox

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