# Third District Court of Appeal

State of Florida

Opinion filed April 25, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D16-959

Lower Tribunal No. 13-32644

________________



### Christopher Sanchez,

Appellant,

vs.



### Miami-Dade County,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin,

Judge.

Beckham & Beckham and Pamela Beckham and Robert J. Beckham, Jr., for

appellant.

Abigail Price-Williams, Miami-Dade County Attorney, and Joni A. Mosely

and Sabrina Levin, Assistant County Attorneys, for appellee.

Before SUAREZ, SALTER and LUCK, JJ.

PER CURIAM.

Christopher Sanchez and Noel Pozos were shot while in Miami-Dade

County’s Benito Juarez Park attending a birthday party. In separate lawsuits

before different trial court judges, Sanchez and Pozos sued the county because itnegligently failed to allocate off-duty police officers as security to protect the

partygoers. The county moved for summary judgment in each case based on

sovereign immunity under Florida Statutes section 768.28(9). The trial court in the

Pozos case denied the county’s summary judgment motion. We dismissed Pozos’

appeal because the trial court’s unelaborated denial did not determine as a matter

of law that the county was not entitled to sovereign immunity. See Miami-Dade

County v. Pozos

, No. 3D15-2167, 2017 WL 621233, at *1 (Fla. 3d DCA Feb. 15,

2017) (“Because the trial court did not determine that, as a matter of law, the

County was not entitled to sovereign immunity or immunity under section

768.28(9), Florida Statutes, the County was not authorized to appeal the trial

court’s order, and we therefore dismiss this appeal as one taken from a nonfinal,

nonappealable order.”). 1 Chief Judge Rothenberg dissented. She would have

found that we had jurisdiction and the county was immune from Pozos’ claim.

Unlike Pozos

, the trial court in the Sanchez case granted the county’s

summary judgment motion, concluding that the county was immune under section

768.28(9). Sanchez has appealed, and because final summary judgment was

entered in favor of the county, there is no jurisdictional issue as there was in Pozos

.

We have jurisdiction over final judgments. The issue here is the one left

1 The motion for rehearing and rehearing en banc is pending in Pozos

. The motion

is directed to the jurisdictional issue, and does not affect Chief Judge Rothenberg’s

sovereign immunity discussion.

2unanswered by the majority opinion in Pozos : whether the county’s sovereign

immunity barred Pozos and Sanchez’s negligent security claims. We agree with

and adopt the portion of Chief Judge Rothenberg’s Pozos dissent concluding under

the facts of this case that the county had sovereign immunity under section

768.28(9), and affirm the judgment in favor of the county.

FACTUAL BACKGROUND

Chief Judge Rothenberg correctly described the summary judgment

evidence.

On August 24, 2012, Eli Salgado purchased a Miami-Dade County

Park Foundation membership for $149. This membership included a

coupon book containing several promotional items, including two

tickets to the zoo, a 50% discount coupon for golf, and a coupon for

the use of a park shelter without payment of the requisite rental fee.

Along with Salgado’s membership and the coupon booklet, Salgado

was given a copy of the Park’s rules and regulations to be followed

when renting a facility at the Park. These rules contained a section

regarding when permits and off-duty officers are required and

provided notice to Salgado that it was his responsibility to obtain the

correct permit(s) and to hire off-duty police officers under certain

circumstances. For example, these rules provided that when a D.J.,

live music, or speakers are going to be used, the person renting the

facility or hosting the event at the Park must obtain a broadcast permit

and hire and pay for off-duty police officers. Depending on the type or

size of the party or event, other permits are required, and again,

Salgado must hire off-duty police officers to provide security for the

event. Specifically, the rules and regulations provided that if Salgado

was expecting over a certain number of guests, then he would be

required to hire two off-duty police officers and obtain a special

events permit. The rules and regulations additionally stated that the

Park’s employees would not be responsible for providing any of these

items.

3When Salgado rented a shelter at the Park for his September 22,

2012 birthday party, he simply asked to rent the shelter and used the

free rental coupon contained in his membership coupon booklet. He

did not advise anyone that he was going to hire a D.J., and he did not

obtain any permits or hire any off-duty police officers. Instead, he

procured two private security officers to provide security at the party.

The only Park employee present for this after-hours private

party was Diogenes Martin, a part-time Park Service Aide, whose

responsibilities were to clean the restrooms and the Park before and

after an event and to keep the area clean and change the trash bags

during the event. Also present was a teenage volunteer who was

helping Martin that night. Victor Jenkins, the Goulds South Dade

Zone Manager who is responsible for managing seventeen parks for

Miami-Dade County Parks and Recreation, testified in his deposition

that the County has only budgeted for twenty-seven park security

officers to service all of the recreational facilities throughout the

County. These officers are directed to mainly patrol the beaches and

marinas on the weekends. Because the County does not provide

security at these private parties and events, it requires the patron

renting a park facility to contact the police department and hire offduty officers for certain events.

Martin testified in his deposition that he performed his duties as

required on the night of the party. He made sure the restrooms and

area were clean, the trash was properly disposed of, and the trash bags

were changed when the cans became full. He explained that Salgado

was celebrating his eighteenth birthday, and the party consisted of

mostly sixteen-to-eighteen-year-olds who were eating, dancing, and

just having a good time. Salgado’s parents were present, and there

were also two large men wearing “Security” T-shirts present who

appeared to be patrolling the area and providing security for the party.

He did not see anyone using drugs, fighting, or having a confrontation

with anyone. Everything was calm and everyone seemed to be having

a good time when all of a sudden, at around 10:00 or 10:30 p.m., he

heard shots fired. As soon as he realized that some of the kids had

been shot, he called 911 and then called his supervisor.

Inga Portilla, a Park Manager, confirmed that Park Service

Aides are only responsible for maintenance within the Park. They do

4not provide security, do not check to see if the renter has obtained the

required permits, are not trained in crime prevention, and are not

authorized to “police” the area. She also confirmed that after Salgado

paid his membership fee, a booklet was sent to his house containing

the rental coupon and a copy of the Park’s rules and regulations.

These rules and regulations are also posted at the Park. Portilla

explained that “once we rent the facility

. . . we don’t have anything to

do with direct involvement of the parties,” and that it was Salgado’s

responsibility to follow the rules, obtain the necessary permits, and

hire off-duty police officers if he was having a party that required offduty police officers, as “[w]e are not responsible for the party.”

Pozos presented no evidence to refute any of the above

referenced evidence. The affidavit/statement provided by Salgado, the

renter and host of the party, does not refute the testimony of the park

employees or the physical evidence. Salgado did not dispute that he

had received a copy of the Park’s rules and regulations related to

rentals of the Park’s facilities. He merely states that when he rented

the pavilion he was not advised that he needed to hire off-duty officers

and that he did not recall if anyone had asked him how many people

he expected would be attending the party.

Id. at *10-11 (omissions and alterations in original) (emphasis removed). 2

2 The dissenting opinion says it is “puzzled” that we would quote Chief Judge

Rothenberg’s summary of the facts. So as not to leave anyone puzzled, we explain

why. The plaintiffs in Pozos and this case were shot on the same night, at the same

place, at the same party, at the same time, and were represented by the same

attorneys, who have brought the same claim, and made the same arguments against

summary judgment, relying on materially identical evidence. Where one of our

colleagues has succinctly, accurately, and painstakingly laid out the relevant

summary judgment evidence for the sovereign immunity issue, there is no need to

reinvent the wheel when a perfectly round shiny new one was laying around for us

to use. See United States v. Stevens

, 994 So. 2d 1062, 1068 (Fla. 2008) (“While

we could ‘reinvent the wheel’ and set out our own analysis as to the application of

the principles of these sections to the circumstances alleged here, we acknowledge

that we could not improve upon the district court’s analysis. Because we agree

with Judge Hurley’s analysis, we adopt the portion of his order regarding the

application of these sections to the certified question

. . . .”). We couldn’t have

summarized the facts any better than Chief Judge Rothenberg did.

5DISCUSSION

Chief Judge Rothenberg properly applied the summary judgment evidence to

the principles of sovereign immunity articulated by the Florida Supreme Court.

[E]ven where a duty is owed, sovereign immunity may bar an action

for an alleged breach of that duty, see Pollock 882 So. 2d at 932-33;

Henderson

, 737 So. 2d at 535; Kaisner

, 543 So. 2d at 734, because in

Florida, “governmental immunity derives entirely from the doctrine of

separation of powers, not from a duty of care or from any statutory

basis.” Kaisner

, 543 So. 2d at 737.

When addressing the test for determining when a governmental

entity enjoys sovereign immunity, the Florida Supreme Court held

“that the separation-of-powers provision present in article II, section 3

of the Florida Constitution requires that ‘certain [quasi-legislative]

policy-making, planning or judgmental governmental functions

cannot be the subject of traditional tort liability.’” Wallace

, 3 So. 3d

at 1053 (quoting Commercial 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. Commercial Carrier

, 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.” Id. (footnote omitted).

While nearly every endeavor involves some level of discretion,

it is the governmental quasi-legislative discretion exercised at the

policy-making or planning level which is protected from tort liability.

Wallace

, 3 So. 3d at 1053; Yamuni

, 529 So. 2d at 260. Thus, in

addition to the five basic principles identified by the Florida Supreme

Court in Trianon

, which have been listed at the beginning of this

analysis, the Court recognized that “there were areas of government

activity where orthodox tort liability stops and the act of governing

begins,

. . . as well as the distinct principle of law

. . . which makes not

actionable in tort certain judgmental decisions of governmental

authorities which are inherent in the act of governing.” Trianon

, 468

So.2d at 918 (internal citations and quotation marks omitted). Further,

6“certain discretionary governmental functions remain immune from

tort liability

. . . because certain functions of coordinate branches of

government may not be subjected to scrutiny by judge or jury as to the

wisdom of their performance.” Id. (internal citations and quotation

marks omitted).

. . .

. . . .

[T]he unrefuted evidence supports the legal conclusion that the

County made a discretionary policy/planning decision to allow

patrons of its parks to rent its facilities for private parties or events.

Relying on its legislative/permitting/licensing authority, the County

enacted certain rules and regulations governing the rental and use of

its parks and the park’s facilities. Based on the County’s limited

resources, it exercised its discretion to assign only twenty-seven

officers to the Parks and Recreation Department to service all of the

parks, beaches, and County-owned recreational areas located

throughout the county and to direct those officers to primarily patrol

the public beaches and marinas on the weekends, rather than directing

them to patrol and monitor private parties being held in public parks.

The County, therefore, included certain restrictions and requirements

within its enacted rules and regulations and rental agreements, which

the party or event host was required to follow. Among other things,

these rules and regulations required the renter to go to the police

department and (1) obtain a broadcast permit if using a D.J., live

music, or sound equipment; (2) obtain a special event permit if over

200 guests were expected to attend; and (3) hire off-duty police

officers under each of these scenarios. The rules and regulations and

the rental agreement specified that the County’s park employees

would not be responsible for the failure to meet any of these

requirements.

When Salgado purchased his Park membership, he was sent a

copy of these rules and regulations. Salgado, however, did not abide

by these rules and regulations when he used his free coupon to rent a

pavilion for his birthday party. Although he had a D.J. and sound

equipment at the party, he did not obtain a broadcast permit or hire

off-duty police officers from the police department. Whether he was

additionally required to obtain a special event permit and hire off-duty

police officers based on the number of guests he expected to attend is

7unclear because the evidence does not reflect whether Salgado

expected so many people to attend and whether there were more than

200 guests at the party. This issue is nevertheless irrelevant because,

based on Salgado’s use of a D.J. and sound equipment, he was

required to hire two off-duty police officers anyway. However,

instead of obtaining the necessary permit(s) and hiring off-duty police

officers, Salgado hired two private-duty security officers.

. . .

. . . .

Because the County’s decisions were quasi-legislative

discretionary policy or planning decisions it is sovereignly immune

from suit and thus, it was entitled to summary judgment as a matter of

law. This conclusion is supported by prior decisions from the Florida

Supreme Court, this Court, and our sister courts.

For example, in Delgado v. City of Miami Beach

, 518 So. 2d

968 (Fla. 3d DCA 1988), this Court affirmed the trial court’s order

granting the City of Miami Beach's motion for summary judgment

after concluding that the City of Miami Beach was protected from

liability under the doctrine of sovereign immunity as a matter of law.

Delgado was injured when someone in the crowd ignited fireworks

which struck and burned Delgado’s leg while he was attending a

concert and a fireworks display sponsored by the City of Miami

Beach. Delgado claimed that the City of Miami Beach, which had

sponsored the event, breached its duty by failing to prohibit the

attendees from possessing and detonating their own fireworks. This

Court, however, concluded that the City of Miami Beach’s “actions

fell within the planning-level, discretionary function of government,

for which no liability attaches.” Id. at 969. Specifically, this Court

held that “[t]he manner in which a city, through its police officers,

exercises discretionary authority to enforce compliance with the laws

and protect the public safety, falls squarely within the city's power to

govern. Accordingly, the city is protected under the doctrine of

sovereign immunity.” Id. (citing Trianon

, Commercial Carrier

, and

other cases).

As in Delgado

, the County’s actions in the instant case

– not

assigning officers to patrol or be present at private parties or events

held in its public parks, but to, instead, require those who rent its park

8facilities to obtain permits and hire off-duty officers under certain

circumstances

– was a discretionary planning and/or policy decision.

It was a governmental decision made in the exercise of its

discretionary authority regarding the manner in which compliance and

enforcement of the law and the protection of the public would be

effectuated. How the County notified those who rented its park

facilities of their obligations and responsibilities was also a

planning/policy discretionary governmental decision. Because parks

such as Benito Juarez Park were “un-manned” parks with only parttime maintenance employees in attendance, the County, in the

exercise of its discretion, put into place a policy requiring the County

to notify each individual who purchased a Park membership or rented

a Park facility by providing him/her with a copy of the Park’s rules

and regulations. The unrefuted evidence in this case is that these rules

and regulations were sent to the Salgado’s home along with his

coupon book after he purchased his Park membership. Because these

decisions fell squarely within the County’s power to govern, they are

protected as a matter of law under the doctrine of sovereign immunity.

The decisions of the County regarding where and how to

deploy its available manpower (sworn police officers) is a

discretionary or planning function. And, as the Florida Supreme Court

stated in Trianon

, “under the constitutional doctrine of separation of

powers, the judicial branch must not interfere with the discretionary

functions of the legislative or executive branches of government

absent a violation of constitutional or statutory rights.” Trianon

, 468

So. 2d at 918. “While sovereign immunity is a silent issue here, we

ought not lose sight of the fact that inherent in the right to exercise

police powers is the right to determine strategy and tactics for the

deployment of those powers.” Wong v. City of Miami

, 237 So. 2d

132, 134 (Fla. 1970); see also Commercial Carrier

, 371 So. 2d at 1020

(quoting Wong

, 237 So. 2d at 134):

The sovereign authorities ought to be left free to exercise

their discretion and choose the tactics deemed

appropriate without worry over possible allegations of

negligence. Here officials thought it best to withdraw

their officers. Who can say whether or not the damage

sustained by petitioners would have been more

widespread if the officers had stayed

. . . .

9Pozos

, 2017 WL 621233, at *9-13 (some omissions and alterations in original).

We agree with and adopt Chief Judge Rothenberg’s analysis as our own.

We only add to her discussion to address two points in the dissenting opinion: (1)

its discussion of Sanchez’s claim; and (2) its reliance on City of Belle Glade v.

Woodson

, 731 So. 2d 797 (Fla. 4th DCA 1999).

1. Sanchez’s Claim.

The dissenting opinion reads Sanchez’s negligence claim to include

violations of the park employees’ operational duties to keep track of the number of

party-goers, verify security measures, and shut down parties if they spiral out of

control. The dissenting opinion says that Sanchez’s claim does “not necessarily or

simply involve policy decisions on the allocation of County-directed police

officer,” but rather includes operational decisions to issue permits, close the park

after dark, and use warning signs.

Response to Motion for Summary Judgment

. We read Sanchez’s claim as he

wrote and explained it. In his response to the county’s summary judgment motion,

Sanchez said he was “suing for negligent security.” Sanchez argued that county

procedures required “at least one off-duty police officer” at the party, and this set

the standard of care for the county. Sanchez contended the summary judgment

standard had been met “where there is expert evidence, the county admit[s] that

there should have been at least one off-duty police officer to provide security at the

10park, and the circumstances leading-up-to Sanchez’s injury are established by

proof.”

Hearing on Summary Judgment Motion

. At the hearing on the county’s

summary judgment motion, Sanchez described the factual basis for his claim this

way:

There was a police officer needed at this place and the County park

zone manager testified that off-duty police were required to deter

crime and for safety and to be proactive.

. . . Instead, there was just

one part-time park service aid and his unpaid friends with no security

training.

Initial Brief

. Sanchez reiterated in his initial brief that he “filed this

negligence security action after he was shot during an event” at the park. “Sanchez

sued for negligence security.” Sanchez described his “security expert” as

testifying “about the need for police at the event and the deterrent effect that police

have.” “At least two off-duty officers should have been providing security

according to the security expert. The record shows that the attack was both

foreseeable and preventable.” In the fact section of his brief, Sanchez focused on

the county’s duty to provide off-duty police officers at the party, and the

consequences to Sanchez and other party-goers by not providing them:

The county’s park manager admits that this event required at

least one off-duty police officer to provide security. The county’s

zone manager agrees that the park managers and the county employee

at this event know when off-duty police are required to provide

security. However, there were no off-duty police officers providing

security at the party.

11Off-duty police officers provide much more effective security

than private security guards who have no more authority than any

ordinary citizen. The county acknowledges that off-duty police

officers are needed to deter crime at park events and, “For safety and

also to be proactive. When folks see officers they don’t do the normal

stuff.”

Reply Brief

. In his reply brief, Sanchez again told the court the nature of his

claim. “Sanchez sued for negligent security,” he wrote.

Oral Argument

. At oral argument, the question about the scope of

Sanchez’s negligence claim was put to Sanchez’s counsel. This is what he said:

The court:

.... I’m trying to get to the heart of the claim. The

negligence was not having off-duty police officers there,

correct?

Counsel: Say that again, you honor?

The court: The negligence was not having off-duty police officers

present at the party, correct?

Counsel: Um, yes, your honor.

. . . The court:

.... Is that a fair summary of your claim?

Counsel: Um, yes, your honor.

. . .

Sanchez’s claim, as distilled by the time it got to this court, was not about

failing to close the park by dark or having no-trespass signs. His claim was not

about park employees violating their duties to keep track of party-goers and shut

the party down after it got too large. Sanchez’s claim was for negligent security.

The county, according to Sanchez, was required to provide off-duty police officers

at parties like this one, and did not. According to Sanchez’s security expert, it was

foreseeable that there would be criminal activity at the party, but it could have been

avoided had the county provided the off-duty officers.

12Sanchez’s negligent security claim that the county failed to provide off-duty

police officers must fail because the Florida Supreme Court and intermediate

appellate courts have long held that a municipality’s decision on where to allocate

its police resources is a planning level decision that is not subject to civil liability.

See Carter

, 468 So. 2d at 957 (“The city has the right to set its priorities in

reference to law enforcement.”); Wong v. City of Miami

, 237 So. 2d 132, 134 (Fla.

1970) (“[I]nherent in the right to exercise police powers is the right to determine

strategy and tactics for the deployment of those powers.

. . . The sovereign

authorities ought to be left free to exercise their discretion and choose the tactics

deemed appropriate without worry over possible allegations of negligence.”);

White v. City of Waldo

, 659 So. 2d 707, 712 (Fla. 1st DCA 1995) (“Appellant

cannot recover here on the theory that deputies should have been assigned to the

area north of the City of Waldo or have been close enough by to reach the scene

promptly. It was up to the sheriff’s office to decide how to allocate limited

resources. The dispatcher’s inability to send help when requested reflects

competing law enforcement needs. It was for the sheriff, not a jury, to assign

priorities.” (citation omitted)), cause dismissed sub nom. Hindery v. White

, 666

So. 2d 901 (Fla. 1996); Ellmer v. City of St. Petersburg

, 378 So. 2d 825, 827 (Fla.

2d DCA 1979) (“[W]e believe that the ‘negligence’ attributed to the city in this

case falls within the scope of its discretionary planning level function. The alleged

13failure to warn of riot conditions was but an aspect of the larger responsibility of

providing police protection from the riot and restoring law and order to the city

streets.

. . . Decisions are also necessary concerning how to employ available

manpower to effectuate the warnings while at the same time maintain sufficient

forces to deal directly with the rioters and contain the spread of the riot to other

areas of the community.”); Higdon v. Metro. Dade Cty.

, 446 So. 2d 203, 208 (Fla.

3d DCA 1984) (same).

In Carter

, a dog bit a child and severely injured him after escaping from

private property. Carter

, 468 So. 2d at 956. The city knew about the dog but did

not enforce its dog control ordinance to impound the dog after prior biting

complaints. Id. at 956-57. The boy’s mother sued the city for negligence because

the city knew about the dangerous dog, had inspectors on the payroll, but did

nothing. Id. at 956. The Florida Supreme Court agreed that the city was immune

because

[a] government must have the flexibility to set enforcement priorities

on its police power ordinances in line with its budgetary constraints.

Without the ability to make such choices a government must either

pay the high cost of total enforcement or forego the exercise of its

police power. Neither option serves the public interest.

Deciding which laws are proper and should be enacted is a

legislative function. How and in what manner those laws are enforced

is, in most instances, a judgmental decision of the executive branch.

The judicial branch should not trespass into the decisional process of

either.

. . .

14. . . . The amount of resources and personnel to be committed to the

enforcement of this ordinance was a policy decision of the city. The

city has the right to set its priorities in reference to law enforcement.

Id. at 957.

Similarly, in Wong

, neighborhood business owners were worried about

violence overflowing from a nearby protest rally, and asked the city police to

protect their businesses from rioting. Wong

, 237 So. 2d at 133. The city police

initially honored their request, but as the protest rally wore on, officers pulled out

at the instruction of the sheriff. Id. The neighborhood stores were “plunder[ed],”

resulting in $100,000 worth of damages. Id. The business owners sued the city

because it knew about the protest and the likelihood of damages, and still it pulled

its police officers. Id. The Supreme Court agreed that the city was immune

because “at common law a governmental unit had no responsibility for damage

inflicted upon citizens or property as a result of a riot

. . . . [I]nherent in the right

to exercise police powers is the right to determine strategy and tactics for the

deployment of those powers.” Id. at 133-34. 3

3 The dissenting opinion’s fifth footnote, again, characterizes Sanchez’s claim as

the county’s failure to “monitor and enforce the agreement between the Parks

Department and the event sponsor.” This is not Sanchez’s claim. Sanchez’s claim

is exactly what he said it was in his trial court pleadings, appellate briefs, and oral

arguments

– he claims the county was negligent in securing Benito Juarez park

because it knew about the party and still failed to have off-duty police officers.

We have “assume[d]” nothing because we have relied on, and quoted extensively

from, Sanchez’s own words in describing his claim. (And not once in this opinion

– not a single time

– have we used the term “on-duty.”)

Sanchez, and the dissenting opinion, would hold the county liable any time it

15Here, it was undisputed that the county had allocated only twenty-seven

officers to the parks department, and of those twenty-seven, they were assigned

primarily to patrol the public beaches and marinas. As in Carter and Wong

, the

county made a strategic decision in allocating its law enforcement personnel to

dedicate only a few dozen officers to its parks, rather than other high crime areas in

the county, and to prioritize beach-and-marina parks over other ones. The county’s

decision to allocate its scarce law enforcement resources to one area of the county

over another is the kind of discretionary, planning, and policy decision that is

protected by sovereign immunity. To hold otherwise would be to require the

county to allocate police officers to park birthday parties, to the exclusion of other

high-crime or high-priority areas, or face millions of dollars in potential liability.

Such a decision would violate the constitutional principle that policy-making,

planning, and judgment calls by the government are reserved to the executive and

legislative branches, and cannot be second-guessed and picked-over by the courts

through traditional tort liability. See Wallace

, 3 So. 3d at 1053 (“[T]he separationof-powers provision present in article II, section 3 of the Florida Constitution

requires that ‘certain [quasi-legislative] policy-making, planning or judgmental

did not have law enforcement officers at a DJ’ed party at a county park. But

Carter

, Wong

, White

, Ellmer and Higdon hold that a municipality’s decision on

how to employ its law enforcement resources is a policy/planning decision that is

entitled to sovereign immunity, and the failure to have officers on the scene where

a crime occurs

– even if it was foreseeable that a crime would occur

– is not

actionable.

16governmental functions cannot be the subject of traditional tort liability.’”

(alteration in original) (citation omitted)); Carter

, 468 So. 2d at 957 (“How and in

what manner those laws are enforced is, in most instances, a judgmental decision

of the executive branch. The judicial branch should not trespass into the decisional

process of either.”).

2. City of Belle Glade v. Woodson

We also part from the dissenting opinion in its conclusion that this case is

like Woodson

. In Woodson

, a shooting occurred at a city civic center “where a

large crowd of youths had gathered to attend an unauthorized dance” and “the City

knew from [] experience that such dances were dangerous events generally

involving disorderly conduct.” Woodson

, 731 So. 2d at 797. The plaintiff sued the

city for wrongful death and personal injury. The city argued that “enforcing the

law and protecting public safety is a Category II governmental function” under

Trianon ; however, the Fourth District agreed with the plaintiff and found that

maintaining and operating the civic center was a Category III function. Id. at 798.

The court explained: “We agree with the plaintiffs that the City, in maintaining

and operating the Civic Center, falls within the Trianon Park Category III. Thus, it

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.

17Woodson

, for two reasons, does not apply here. First, the Woodson court

conflated its discussion of duty with its determination of sovereign immunity. The

Woodson court found that the municipal government was not immune because it

had a duty to maintain and operate the civic center under Trianon

. But the Florida

Supreme Court has warned that one does not necessarily follow the other.

[B]rief clarification is necessary concerning the differences between a

lack of liability under established tort law and the presence of

sovereign immunity. When addressing the issue of governmental

liability under Florida law, we have repeatedly recognized that a duty

analysis is conceptually distinct from any later inquiry regarding

whether the governmental entity remains sovereignly immune from

suit notwithstanding the legislative waiver present in section 768.28,

Florida Statutes.

Wallace v. Dean

, 3 So. 3d 1035, 1044 (Fla. 2009) (footnote omitted) (emphasis in

original). The Trianon categories discussed by the Woodson court are “a ‘rough,’

general guide concerning the type of activities that either support or fail to support

the recognition of a duty of care between a governmental actor and an alleged tort

victim.” Id. at 1047 (emphasis added) (citing Trianon

, 468 So. 2d at 919). The

Trianon categories do not, as the Woodson court decided they do, answer the

sovereign immunity question. “[I]f a duty of care is owed, it must then be

determined whether sovereign immunity bars an action for an alleged breach of

that duty.” Pollock v. Fla. Dep’t of Highway Patrol

, 882 So. 2d 928, 933 (Fla.

2004).

18To determine whether a government function was entitled to sovereign

immunity, we ask whether it was a policy-making planning or judgmental function,

or an operational one. “[C]ertain [quasi-legislative] policy-making, planning or

judgmental governmental functions cannot be the subject of traditional tort

liability.” Wallace

, 3 So. 3d at 1053 (alteration in original) (quotation omitted).

“Operational level functions, on the other hand, merely implement predetermined

policy and may subject the government entity to tort liability.” Carter

, 468 So. 2d

at 956.

The Woodson court, in the single paragraph discussing sovereign immunity,

did not analyze whether the municipal government made a planning or operational

decision after it found there was a duty. The court assumed there was no sovereign

immunity because the city had a duty to operate and maintain the civic center.

This was contrary to the Florida Supreme Court’s instruction to review duty and

sovereign immunity separately and independently, and therefore, the decision is

unhelpful to the sovereign immunity question presented in this case.

Even if Woodson had separately analyzed the sovereign immunity issue, it

would be unhelpful because the immunity question is different in this case. In

Woodson

, the municipal government knew there were parties at the civic center

but did not authorize them and provided no security. The issue for the Woodson

court was whether the municipal government was immune from liability even

19though it knew about the unauthorized party, let it happen, and provided no

security in any form for the safety of its known visitors.

This does not answer the far harder and narrower immunity question in this

case. Here, the county authorized the party with the condition that the person

throwing it had to provide security. Two security guards and a county parks

employee were at the park the night of the shooting. Unlike in Woodson

, the

county did not ignore that there were parties in the park, and did not fail to provide

security for partygoers. The issue here is not, as in Woodson

, the failure to provide

security altogether. Rather, the issue here is whether the county’s failure to

allocate off-duty police officers, in addition to requiring security as a condition of

the permit and having security guards and a county employee at the party, was a

planning (immune) or operational (not immune) decision. There was no evidence

in Woodson

, as there is here, that law-enforcement resources were scarce and the

municipality had made a policy decision about the allocation of those resources.

Whatever the single paragraph in Woodson said about sovereign immunity at the

Belle Glade civic center, it did not decide the issue in this case. 4

4 The dissenting opinion also relies on our decisions in Prendes v. Miami-Dade

County

, 821 So. 2d 1196 (Fla. 3d DCA 2002), and Hill v. City of North Miami

Beach

, 613 So. 2d 1356 (Fla. 3d DCA 1993). But these are duty cases, and as the

dissenting opinion points out, duty is not an issue here. See Prendes

, 821 So. 2d at

1196 (“The summary judgment entered below for the defendant county is reversed

for trial because the record presents genuine issues of material fact as to

. . . whether the county owed and breached a duty to exercise due care to protect [the

plaintiff] from reasonably foreseeable criminal attacks.”); Hill

, 613 So. 2d at 1357

20CONCLUSION

This is a tragic case. Two young men were shot while attending a party.

But nothing in our decision should be read as leaving Sanchez and Pozos without a

remedy. The shooters, the party organizer, the security guards, and some others

may be responsible for their negligent and willful actions. We conclude only that

the county is shielded from liability for not allocating off-duty police officers, and

only because it has sovereign immunity that protects its policy and planning

decisions about where to allocate its limited police resources. The trial court

correctly concluded the county was entitled to sovereign immunity, and we affirm

the summary judgment in its favor.

Affirmed.

SUAREZ and LUCK, J J., concur.

(“We do not agree that the city had no duty to protect Hill.”). This case deals with

the more difficult question of whether the county’s failure to provide off-duty

police officers as security for the party was a planning/policy decision or an

operational one. Prendes and Hill don’t answer that sovereign immunity question.

21S a n c h e z v

. M i a m i

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S A L T E R

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.

I

. S t a n d a r d o f R e v i e w

Summary judgment should be exercised with special caution in

negligence actions, and granted only when there is a complete absence

of genuine issues of material fact. Holl v. Talcott

, 191 So. 2d 40, 46

(Fla. 1966). Nothing should remain to be resolved but questions of

law. Moore v. Morris

, 475 So. 2d 666 (Fla. 1985); Holl

, 191 So. 2d at

46. If the record on appeal reveals the merest possibility of genuine

issues of material fact, or even the slightest doubt in this respect, the

summary judgment must be reversed. Estate of Marimon ex rel.

Falcon v. Florida Power & Light Co.

, 787 So. 2d 887, 890 (Fla. 3d

DCA 2001) (stating the appellate court must consider the evidence in

the light most favorable to the nonmoving party and must draw all

competing inferences in favor of the nonmoving party).

Piedra v. City of North Bay Village

, 193 So. 3d 48, 51 (Fla. 3d DCA 2016).

II. Pertinent Summary Judgment Evidence

Though puzzled by the majority opinion’s adoption of a statement of facts

from the dissent in another case that is not yet final because it pends in this Court

on a motion for rehearing en banc, I agree that some of the facts in the record in

22the other case, Miami-Dade County v. Pozos

, 42 Fla. L. Weekly D418 (Fla. 3d

DCA Feb. 15, 2017), are duplicated in the record in the present case. But that is

because Messrs. Pozos and Sanchez each were shot at the same park during the

same party

— not because the records and summary judgment evidence in the two

cases were identical.

The fact is that each case was filed separately and decided by separate trial

judges. Each of the two appeals is discrete and is before us on its own record.

One trial court denied the County’s motion for final summary judgment on the

record before it ( Pozos ), and another trial court granted the County’s motion for

final summary judgment on the record before it (this case). The panel majority

opinion in Pozos dismissed that appeal on procedural grounds, which allows the

case to proceed to trial.

The summary judgment evidence before the trial court in this case also

required denial of the County’s motion for summary judgment. The pertinent

facts in the summary judgment evidence are:

 The County owned and operated Benito Juarez Park on the date Sanchez

was shot, Saturday, September 22, 2012. Using its “recreation

management” software and facility rental rules, the County accepted

payment for a parks foundation membership entitling an individual (not a

party to this case or the Pozos case) to the use of a pavilion for an event for

23between 75 to 100 persons for an evening birthday party for a young man

turning 18. The County’s parks employees emailed or otherwise delivered

to the sponsor of the party a single-page, “Benito Juarez Park Facility

Rental Additional Rules and Regulations.” 5

 The additional rules and regulations stated, consistent with Parks

Department written policies, that personal disc jockey (“DJ”) audio

systems or hired DJs “are permitted in the shelter with a mandatory offduty police officer present.” Arrangements for the mandatory off-duty

officer were required to be made “through Miami-Dade Police Hammocks

Station #8 at [telephone number] for the time period of this entertainment.

The rental office must receive a copy of the Miami-Dade Police Station #8

off-duty police permit prior to the event. These officers are responsible for

crowd control, parking, and rules enforcement.”

 The party sponsor did not obtain the DJ “broadcast permit” or obtain an

off-duty police permit prior to the event, but County Parks Department

employees allowed the party to include a DJ, strobe and laser lighting, a

stripper pole, and (by witness estimates) some 200 party-goers as the event

actually took place. No Parks Department employee or off-duty police

5 The lines provided for the sponsor’s signature and the date were not completed.

The written rules at the time did not limit, or include a space for the sponsor to

designate, the number of persons expected to attend.

24officer intervened to rein in the number of participants, underage drinking,

or illegal drug use.

 The Park and adjoining areas had been the site of prior gang incidents and

violent crimes. As the number of birthday party participants grew during

the event, disputes arose among some of the partygoers. Messrs. Sanchez

and Pozos were wounded by gunfire while attending the party; Mr.

Sanchez testified that he was shot for trying to help another party attendee

“who got jumped” by others. The record contains no evidence that Mr.

Sanchez carried or used a weapon himself, or that he struck anyone.

 After the shootings, the Parks Department revised its written reservation

agreements for Park facilities, cut the mandatory closing time for events at

Benito Juarez Park from midnight back to 10:00 p.m., and enforced its offduty police officer regulations for parties. 6

 Mr. Sanchez filed the deposition testimony of his security expert, West

Palm Beach Police Lieutenant David Howard, and three pages of

6 During the depositions of the Parks Department employees who described the

changes in policy and practices in the aftermath of the shootings, the County

objected to the testimony on grounds of “subsequent remedial measures.” The

deposition transcript was filed without any ruling on that objection, apparently

made under section 90.407, Florida Statutes (2014). Recognizing the exceptions to

that rule of inadmissibility, and without ruling on the objection, the Park

employees’ testimony on this point is a part of the summary judgment evidence

filed by Mr. Sanchez in opposition to the County’s motion, even if considered only

to demonstrate the Parks Department’s degree of control over the premises and the

Park’s operations.

25handwritten notes (in lieu of a formal or final written report) prepared by

Lt. Howard, as well as criminal incident reports involving the Park and

surrounding area. The County moved to strike Lt. Howard’s testimony on

various grounds, including the asserted non-compliance with section

90.702, Florida Statutes (2014), and Daubert v. Merrell Dow

Pharmaceuticals, Inc.

, 509 U.S. 579 (1993), but the trial court expressly

deferred that challenge during the hearing on the motion for summary

judgment. 7

 Lt. Howard’s testimony and his notes include crime data indicating that the

area had a crime rate six times the County average, including known gang

activity. He considered the fight and subsequent shootings foreseeable and

preventable. Had the Parks Department employees required the party

plans to be submitted to the police as required, Lt. Howard concluded that

a minimum of two off-duty officers would have been required, and that the

unarmed fight that sparked the subsequent gunfire could have been stopped

by the off-duty officers before it escalated. After reviewing the testimony

7 The trial court stated that a separate hearing and detailed direct and crossexamination of Lt. Howard would be required to evaluate his qualifications and

opinion. Nevertheless, the order submitted to the trial court by counsel for the

County

— signed by the trial court

— states that the testimony is not admissible for

reasons including Lt. Howard’s lack of a doctorate and his failure to pass police

exams for advancement at some earlier point in his career. This error alone,

committed not by the trial court but by the overenthusiastic draftsmanship of the

County’s counsel, warrants reversal.

26of the part-time park aides in the Benito Juarez Park at the time of the

party and shootings, Lt. Howard concluded that they were unsupervised

and not sufficiently trained in communications with law enforcement and

in restricting underage drinking and drug use.

III. Analysis

— Sovereign Immunity

“In cases involving governmental tort liability, we generally determine

whether the defendant owes a duty of care to the plaintiff before we address

whether the governmental entity is immune from liability.” Breaux v. City of

Miami Beach

, 899 So. 2d 1059, 1063 (Fla. 2005). In the present case, it is clear

that the County’s ownership and control of the Park subjects it to the “same

common law duty as a private person to properly maintain and operate the

property.” Trianon Park Condo. Ass’n v. City of Hialeah

, 468 So. 2d 912, 921

(Fla. 1985) (“ Trianon ”). A private owner of a facility such as the Park would

have a duty of care to invitees to properly maintain and operate that facility.

After confirming that the County owed a common law owner and

operator’s duty of care to invitees at the Park, we consider whether the County’s

activity is nonetheless immune from liability based on the classification of the

County’s functions and activities under Trianon and the summary judgment

evidence before the trial court. Trianon established four categories of

governmental functions and activities: “(I) legislative, permitting, licensing, and

27executive officer functions; (II) enforcement of laws and the protection of the

public safety; (III) capital improvements and property control operations; and (IV)

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

welfare of the citizens.” Trianon

, 468 So. 2d at 919.

The County argues, and persuaded the trial court to find, that the County’s

functions and activities at the Park involved the discretionary allocation of law

enforcement resources and that it was thus sovereignly immune, citing the

concurring opinion in Ameijeiras v. Metropolitan Dade County

, 534 So. 2d 812,

814 (Fla. 3d DCA 1988): “Protection of the public against third party criminal

attacks on public parkland is an inherently governmental function for which there

has never been a common law duty of care.” (Jorgenson, J., specially concurring)

(citing Trianon ). The County’s reliance on Ameijeiras is flawed, however, as (a)

that quotation is in a specially concurring opinion that was not joined by the

majority which decided the case, (b) the majority’s holding found that the County

was entitled to summary judgment “because, as a matter of law, the attack was not

foreseeable,” 534 So. 2d at 814 and n.1, 8 implying that the majority stopped its

analysis after deciding there was no duty to that plaintiff, and (c) the Florida

8 The majority opinion in Ameijeiras relied on a record in which no violent crimes

had been reported in the past two years in the County park in which the attempted

robbery in that case occurred. 534 So. 2d at 813. In the present case, Sanchez’s

summary judgment evidence included records of numerous prior criminal attacks

and gang activity in the park and nearby area during the preceding three years,

such that a jury might conclude that the attack was foreseeable.

28Supreme Court subsequently clarified a governmental entity’s “operational-level

duty of care” in such cases as Breaux

.

And were the County’s analysis based on Ameijeiras current or correct, the

County’s common law duty of care to invitees, as the owner and operator of parks

and other recreational facilities for County citizens, would be rendered entirely

nugatory, contrary to the teaching of Trianon regarding property control

operations. Under the County’s analysis, apparently, any matter involving the

security of invitees on County-owned, County-maintained, and County-operated

property could be argued to be an inherently governmental function implicating

the discretionary allocation of law enforcement resources.

The issue in the present case does not necessarily or simply involve policy

decisions on the allocation of County-directed police officers. The issuance of

permits with requirements that the sponsor of a night-time event at the park

provide off-duty police or other security personnel (and monitoring to enforce the

event sponsor’s obligations); the closure of a park after dark and the use of

warning or no trespassing signs; or other operational measures, could warn or

protect invitees and address the known risks. 9

9 In recounting Sanchez’s pleadings and legal position, the majority opinion

assumes that the deployment of on-duty police officers by the County Police

Department is equivalent to the Parks Department’s obligation to monitor and

enforce the agreement between the Parks Department and the event sponsor. The

Parks Department required the event sponsor to retain and pay for off-duty officers

for an event of the kind involved in this case. This distinguishes the present case

29For these reasons, the County’s functions and activities regarding the Park,

based on the known operational challenges, plainly constitute “property control

operations” within Category III of the Trianon decision, and are not sovereignly

immune, on the record (and summary judgment standard of review) presented

here. This characterization aligns with that of the Fourth District as it considered

the liability of a municipality when a “suit for wrongful death arose out of a

shooting which occurred on the premises of the City of Belle Glade’s Municipal

Civic Center where a large crowd of youths had gathered to attend an

unauthorized dance.” City of Belle Glade v. Woodson

, 731 So. 2d 797, 797 (Fla.

4th DCA 1999) (“ Woodson ”). The municipality was not alleged to be liable for a

failure of the police regarding the shooting; rather, the City’s Civic Center

employees breached their duty to properly operate the Civic Center.

The Fourth District rejected the municipality’s argument, identical to the

County’s argument asserted here, that the City was immune because “enforcing

the law and protecting public safety is a Category II governmental function as

analyzed in [ Trianon ] for which the City has sovereign immunity as a matter of

from those relied upon by the majority involving claims for alleged negligence in

the deployment of on-duty police. I respectfully disagree with the majority’s

assessment that this distinction is immaterial. Similarly, the deployment of onduty Parks Department security officers is not at issue. Mr. Sanchez’s use of the

term “off-duty police officers” makes that clear. That is the term used so

frequently in the allegations and evidence relating to the Park’s Department’s

failure to monitor and enforce the event sponsor’s contractual and operational

obligation.

30law.” Id. Instead, the Fourth District held in Woodson that “the City, in

maintaining and operating the Civic Center, falls within the Trianon Park category

III. Thus it does not enjoy sovereign immunity but has the same common law

duty as a private person to properly maintain and operate the property.” Id. at

798. This Court’s precedent, as well, has held that a municipality has a common

law duty to operate a park and recreational facility to keep the facility safe from

known dangerous conditions and that, for purposes of summary judgment in the

case, foreseeability (based on prior incidents and notice) is a genuine issue of

material fact. Hill v. City of North Miami Beach

, 613 So. 2d 1356 (Fla. 3d DCA

1993).

Based on these authorities, the record before us, and the summary judgment

standard of review, the final summary judgment in favor of the County should be

reversed.

IV. Wallace v. Dean

The majority opinion, relying again on the analysis in the dissenting

opinion in Pozos

, sees further support for the County’s sovereign immunity claim

in Wallace v. Dean

, 3 So. 3d 1035 (Fla. 2009). After establishing duty (which the

majority and County do not dispute), Mr. Sanchez must answer the question: was

the County engaging in a policy-making planning or judgmental function, or an

operational one?

31In advancing this argument, the majority accepts the County’s flawed

premise in this case

— that the County’s breaches of duty alleged by Sanchez

pertain to the discretionary and planning functions of allocating law enforcement

resources. That is simply not the case, as the complaint makes clear. The alleged

breaches of duty occurred in the operational activities of the Parks Department in

day-to-day administration of a public park. Security was required to be procured

(and paid for) by the event sponsor, via off-duty police officers.

The near-fatal errors culminating in the shootings at Benito Juarez Park

occurred, it is alleged, because a landowner’s on-site, operational employees 10

failed to carry out their assigned operational duties. Those duties included

attention to the number of anticipated party-goers (and then to the number

actually attending) the special event; verification that the required off-duty police

were in place before the event commenced; and notifying the event sponsor, the

off-duty police hired for the event, and the appropriate Parks Department

managers, so that the event could be shut down when it spiraled out of control.

Here, as in Prendes v. Miami-Dade County

, 821 So. 2d 1196, 1196 (Fla. 3d

DCA 2002), the summary judgment should be reversed so that a jury can

determine whether the County breached a duty to exercise due care to protect Mr.

10 Mr. Sanchez’s summary judgment evidence included deposition testimony from

five Parks Department employees involved in the operation and supervision of the

Benito Juarez Park at the time of the shootings.

32Sanchez from “reasonably foreseeable criminal attacks.” Mr. Sanchez has not

conflated the County’s duty as a landowner with its determination of sovereign

immunity. In this case, like Woodson

, the County’s duty as a property owner

required it to properly “maintain and operate” the property where the shootings

occurred. Those operational obligations answer the question posed by Trianon

and Wallace : the Parks Department’s functions in this case were “operational”

rather than “policy-making, planning or judgmental” in character.

V. Other Issues

The County raises a series of additional arguments in defense of the

summary judgment. Two are simply variations on its claim of sovereign

immunity: that the deployment of security or police is a discretionary function

immune from suit; and that reversal would make the County an insurer of park

patrons and invade a Category II function under Trianon

. These arguments are

unpersuasive in light of the previous analysis and Trianon itself.

The County also argues that the attack on Sanchez was unforeseeable, that

any duty of care on the part of the County was met; and that the intervening acts

of the third-party attacker exculpate the County from liability. On the record

before us, each of these issues presents a question for resolution by the trier of

fact rather than summary disposition.

The County’s proposed omnibus order granting summary judgment was

33signed without amendment by the trial court. That practice is not uncommon, and

we have often affirmed such judgments despite an opposing party’s criticism of a

judgment on that basis. See, e.g.

, Empire World Towers, LLC v. CDR Creances,

S.A.S.

, 89 So. 3d 1034, 1045 (Fla. 3d DCA 2012). But in the order under review

in the present case, contrast Lt. Howard’s testimony and exhibits with this

determination in the order: “The Court finds as well as a matter of law this crime

was not foreseeable,” 11 and contrast the trial court’s pronouncement that it would

not conduct a Daubert hearing on Lt. Howard’s proffered testimony (see supra

n.3) with the County’s inclusion in the proposed order of a finding that “his

deposition is not admissible evidence that can be considered.” 12 These attorneyauthored “findings” require reversal.

VI. Conclusion

The order granting summary judgment and final judgment to the County

should be reversed. Here, as the trial court ruled in Pozos

, there are genuine

issues of material fact precluding summary judgment. For the reasons set forth in

this opinion, I respectfully dissent.

11 Omnibus Order Granting Defendant’s Motion for Summary Judgment at 3,

Sanchez v. Miami-Dade County

, Case No. 13-32644-CA-11 (Fla. 11th Cir. Ct.

Oct. 6, 2015).

12 Id. (emphasis in original).

34