DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SCHOOL BOARD OF BROWARD COUNTY,

Appellant,

v.

SEBASTIAN McCALL, JR.,

Appellee.

No. 4D19-104

[May 19, 2021]

Appeal of nonfinal order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; David A. Haimes, Judge; L.T. Case No. 

CACE 15-015969 (08).

Thomas W. Paradise and Lauren Stone of Vernis & Bowling of Broward, 

P.A., Hollywood, for appellant.

Mark T. Packo of Ged Lawyers, LLP, Boca Raton, for appellee.

PER CURIAM.

The School Board of Broward County (“School Board”) appeals a 

nonfinal order denying its motion for summary judgment based on 

sovereign immunity. We reverse because we determine that the School 

Board is entitled to sovereign immunity and remand for the trial court to 

grant the School Board’s motion for summary judgment.

Background

Sebastian McCall, Jr. sued the School Board after he suffered injuries 

while attending a high school basketball game. He alleged that after the 

game ended, a crowd of people leaving the school suddenly turned around 

and ran back onto campus. To avoid being an obstacle in the way of the 

running crowd, he turned and ran with the crowd. While running, he fell,

injuring his hip and shoulder. In his complaint, McCall alleged the School 

Board failed to provide adequate security and crowd control.

The School Board moved for summary judgment based on sovereign 

immunity and argued that McCall’s claim of negligent security was 
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directed at a planning level function, rather than an operational function. 

The record reflected that before each school year, the principal, assistant 

principal, and school resource officer of each high school, along with a 

third-party security specialist, would meet and determine the necessary 

number of police and security personnel for each sporting event. 

McCall argued that the basketball game was an “operational level event” 

and that the School Board’s alleged failure to provide adequate security 

was not protected by sovereign immunity.

The trial court denied the School Board’s motion and found that the 

security personnel decisions were an operational function and that the 

question for the jury would be “whether or not adequate measures were 

put in place to protect the community.”

The School Board appealed.

Analysis

“The standard of review governing a trial court’s ruling on a motion for 

summary judgment posing a pure question of law is de novo.” Major 

League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001).

Duty

McCall relies on City of Belle Glade v. Woodson, 731 So. 2d 797 (Fla. 

4th DCA 1999), for the proposition that the government has the same legal 

duty as a private landowner to protect invitees from reasonably foreseeable 

harms. In Woodson, we concluded that the city was not entitled to 

sovereign immunity following a shooting at a dance at the city’s civic 

center. Id. at 797. The plaintiffs alleged that the city “fail[ed] to provide 

adequate security.” Id. We held that the city “does not enjoy sovereign 

immunity but rather has the same common law duty as a private person 

to properly maintain and operate the property.” Id. at 798.

However, the Florida Supreme Court has criticized the Woodson 

decision and noted that its opinions issued after Woodson “make clear that 

duty and sovereign immunity are not to be conflated.” Sanchez v. MiamiDade Cnty., 286 So. 3d 191, 192 (Fla. 2019). The Florida Supreme Court’s 

“opinions have rendered obsolete [our] reasoning in Woodson that the 

existence of a duty renders sovereign immunity inapplicable.” Id. at 194.
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Accordingly, the School Board owed a duty to provide security to 

patrons at the basketball game. However, that duty does not supersede 

the School Board’s claim of sovereign immunity.

Sovereign Immunity

The School Board argues that it is entitled to sovereign immunity 

because its decisions regarding security at the basketball game were 

planning level functions.

“[T]he separation-of-powers provision present in article II, section 3 of 

the Florida Constitution requires that ‘certain [quasi-legislative] policymaking, planning or judgmental governmental functions cannot be the 

subject of traditional tort liability.’” Wallace v. Dean, 3 So. 3d 1035, 1053 

(Fla. 2009) (second alteration in original) (quoting Com. Carrier Corp. v. 

Indian River Cnty., 371 So. 2d 1010, 1020 (Fla. 1979)). “On the other 

hand, decisions made at the operational level—decisions or actions 

implementing policy, planning, or judgmental governmental functions—

generally do not enjoy sovereign immunity.” Miami-Dade Cnty. v. Pozos, 

242 So. 3d 1152, 1162 (Fla. 3d DCA 2017) (citing Com. Carrier Corp., 371 

So. 2d at 1021). “Planning level functions are generally interpreted to be 

those requiring basic policy decisions, while operational level functions are 

those that implement policy.” Com. Carrier Corp., 371 So. 2d at 1021.

Generally, “the number and placement of supervisory personnel 

constitutes a discretionary decision” protected by sovereign immunity. 

Davis v. State, Dep’t of Corr., 460 So. 2d 452, 453 (Fla. 1st DCA 1984); see 

also Sanchez v. Miami-Dade Cnty., 245 So. 3d 933, 940 (Fla. 3d DCA 2018) 

(“[A] municipality’s decision on where to allocate its police resources is a 

planning level decision that is not subject to civil liability.”). We agree with 

the dissent that schools are not prisons or public parks, and that a school 

board has a different relationship to students than a law enforcement 

agency does to prisoners. However, we disagree with the dissent and 

Judge Salter’s dissent in Sanchez, that a school, working with a law 

enforcement agency, has a different relationship than a county does to the 

park-going general public.

In Commercial Carrier, the Florida Supreme Court provided a four-part 

test for determining if a government action is shielded from tort liability by 

sovereign immunity:

“(1) Does the challenged act, omission, or decision 

necessarily involve a basic governmental policy, program, or 

objective? 
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(2) Is the questioned act, omission, or decision essential to 

the realization or accomplishment of that policy, program, or 

objective as opposed to one which would not change the 

course or direction of the policy, program, or objective? 

(3) Does the act, omission, or decision require the exercise of 

basic policy evaluation, judgment, and expertise on the part 

of the governmental agency involved? 

(4) Does the governmental agency involved possess the 

requisite constitutional, statutory, or lawful authority and 

duty to do or make the challenged act, omission, or decision? 

If these preliminary questions can be clearly and 

unequivocally answered in the affirmative, then the 

challenged act, omission, or decision can, with a reasonable 

degree of assurance, be classified as a discretionary 

governmental process and nontortious, regardless of its 

unwisdom. If, however, one or more of the questions call for 

or suggest a negative answer, then further inquiry may well 

become necessary, depending upon the facts and 

circumstances involved.”

371 So. 2d at 1019 (quoting Evangelical United Brethren Church of Adna v. 

State, 407 P.2d 440, 445 (Wash. 1965)).

In this case, the challenged act is the security plan enacted to protect 

attendees at the basketball game. School boards have a governmental 

policy and objective to give students a well-rounded, free education. As a 

matter of policy and objective, the School Board deemed it important to 

teach students the importance of sports, particularly in the context of a 

public event. In doing so, the School Board obtained an interlocal 

agreement with another governmental entity (law enforcement) to 

implement the policy and objective and meet its duty to protect the 

attendees.1 Thus, the security plan was essential to the realization of the 

School Board’s objective and policy to teach students. Without the 

security plan, the course and direction of the teaching policy and objective 

would not have occurred. Additionally, devising the plan required the 

exercise of judgment and expertise by the principal, assistant principal, 

1 We note that some school boards create their own law enforcement entities.
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school resource officer (law enforcement), and a third-party security 

specialist to determine the necessary number and distribution of security 

personnel. Finally, the School Board clearly possessed the lawful 

authority to devise and implement the security plan. Thus, the four-part 

test of Commercial Carrier was met.

McCall argues that the Commercial Carrier test is not satisfied but offers 

little explanation as to why any of the questions should be answered in the 

negative. He cites Wallace as support for his argument that the security 

plan at the basketball game should be considered an operational level 

function, but Wallace is distinguishable.

In Wallace, the plaintiff sued a county sheriff pursuant to Florida’s 

Wrongful Death Act following deputies’ response to a 911 call. 3 So. 3d at 

1041. Deputies performed a safety check according to the department’s 

established 911 call-response system, found someone unresponsive, and 

failed to call an ambulance (among other questionable decisions). Id. The 

person was taken to the hospital the next day and died. Id. The trial court 

dismissed the suit, in part, because “the Sheriff’s deputies were performing 

a quasi-legislative discretionary function” in implementing the callresponse system “for which the Sheriff enjoys sovereign immunity.” Id.

The Florida Supreme Court analyzed the Commercial Carrier test and 

concluded that although the case involved the “basic policy decision to 

establish a 911 call-response system,” the questioned act was not essential 

to the realization of that policy. Id. at 1054. Additionally, “[t]he actions of 

the deputies were ‘not necessary to or inherent in policy or planning,’ and 

merely reflected a secondary decision as to how preexisting policies, plans, 

programs, or objectives would be implemented.” Id. (quoting Kaisner v. 

Kolb, 543 So. 2d 732, 737 (Fla. 1989)).

Notably, the questioned act in Wallace was the deputies’ response to a 

911 call, not the 911 call-response system. The deputies’ actions were

clearly an operational level function implementing the call-response 

system. In this case, however, the questioned act is the security plan. 

McCall does not allege any individual negligence by any of the security 

personnel nor does he accuse the School Board of failing to follow its own 

plan and procedures.

Conclusion

The School Board’s security plan for the basketball game was a 

planning level function protected by sovereign immunity. Therefore, we 
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reverse and remand for the trial court to grant summary judgment in favor 

of the School Board.

Reversed and remanded with instructions.

CONNER and KUNTZ, JJ., concur.

GROSS, J., dissents with opinion.

GROSS, J., dissenting.

The majority relies upon Davis v. State, Department of Corrections, 460 

So. 2d 452, 453 (Fla. 1st DCA 1984), and Sanchez v. Miami-Dade County, 

245 So. 3d 933, 940 (Fla. 3d DCA 2018), to conclude that the School 

Board’s security plan in this case was a planning or judgmental 

governmental function that is shielded by sovereign immunity. 

But these cases should not control because schools are not prisons or 

public parks. A school board has a different relationship to students than 

a law enforcement agency does to prisoners or a county does to the parkgoing general public. To paraphrase Judge Salter’s dissent in Sanchez, 

the majority’s holding is that “any matter involving the security of invitees” 

to an event on school property is “an inherently governmental function 

implicating the discretionary allocation of law enforcement resources.” 

245 So. 3d at 947 (Salter, J. dissenting).

As I see it, the planning level function in this case was the School 

Board’s decision to have a program of interscholastic sports that 

spectators could attend. The proper level or type of security at a game is 

an operational level function that will differ from school to school and sport 

to sport. A badminton contest would require a different level of security 

than tackle football. This approach is analogous to the Florida Supreme 

Court’s handling of a government unit’s operation of swimming facilities. 

See Avallone v. Bd. of Cty. Comm’rs of Citrus Cty., 493 So. 2d 1002, 1005 

(Fla. 1986). In Avallone, our supreme court expressly rejected the 

argument that “the decision not to supervise the swimming facility was a 

planning level or discretionary decision for which there is immunity.” Id. 

The Avallone court explained:

A government unit has the discretionary authority to operate 

or not operate swimming facilities and is immune from suit on 

that discretionary question. However, once the unit decides 

to operate the swimming facility, it assumes the common law 

duty to operate the facility safely, just as a private individual 

is obligated under like circumstances.
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Id. Likewise, in this case, once the School Board decided to operate an 

interscholastic sporting event, it assumed the common law duty to operate 

the event safely, just as a private individual would be obligated under like 

circumstances. 

This case is also similar to the issue considered in Comuntzis v. Pinellas 

County School Board, 508 So. 2d 750 (Fla. 2d DCA 1987). There, the 

Second District considered a complaint that alleged that a student was 

beaten during lunch outside the school cafeteria. Id. at 751. After 

analyzing the claim under Commercial Carrier Corp. v. Indian River County,

371 So. 2d 1010, 1021–22 (Fla. 1979), the court concluded that the 

plaintiff’s complaint had stated a cause of action against the school board, 

holding that “as to the School Board there is a common law and statutory 

duty to supervise students, that supervision is not protected by sovereign 

immunity, supervision is operational and not discretionary.” Id. at 753. 

For these reasons, I dissent.

* * *

Not final until disposition of timely filed motion for rehearing.