DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KELLIANNE NASO, as personal representative 

of the Estate of Allan Dwoskin, 

Appellant,

v.

RONALD HALL and G4S SECURE SOLUTIONS (USA) INC.,

Appellees.

No. 4D21-1521 

[May 4, 2022]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 

CACE19024776.

Keith Chasin of the Law Office of Keith Chasin, Miami, and Gabriel M. 

Sanchez of The Sanchez Law Group, Miami, for appellant.

Irwin R. Gilbert and Janine K. McGuire of Conrad & Scherer, LLP, Fort 

Lauderdale, for appellees. 

LEVINE, J.

Appellant, the personal representative for the estate, appeals the final 

summary judgment entered in favor of appellees on the grounds of 

absolute sovereign immunity under section 768.28(9), Florida Statutes. 

We find, based on Lovelace v. G4S Secure Solutions (USA), Inc., 320 So. 3d 

178 (Fla. 4th DCA 2021), that appellee G4S was entitled to limited 

sovereign immunity under section 768.28(5), Florida Statutes. Thus, we 

reverse the summary judgment because G4S is entitled to only limited 

sovereign immunity. Appellant also claims that the trial court erred in 

failing to allow her to amend the complaint to add a count for punitive 

damages. We disagree and find that the trial court did not err. Thus, we 

affirm the denial of the motion to amend to add a punitive damage claim.

Around 3:00 a.m. on October 25, 2017, a security guard for G4S, 

Ronald Hall, observed an elderly man, the “victim,” sitting on a bus bench, 

which was not permitted since the bus terminal was closed. Hall advised 

the victim that he had to leave and called a taxi for him. The victim either 
2

never left the bus terminal or returned because Hall later observed the 

victim and a younger man, the “assailant,” on his security camera. Hall 

left his office to find out what was going on. 

Meanwhile, two painters who were working on the premises observed 

the assailant harassing and teasing the victim. When the assailant started 

pushing the victim, one of the painters began recording on his cell phone. 

The painters alerted security.

Hall arrived approximately five minutes later. He was armed and 

wearing a G4S uniform. Hall attempted to call his supervisor for adequate 

reinforcement to make the situation safe for everybody involved. Hall later 

stated that he did not physically intervene or get in between the assailant 

and the victim because he was alone, and it would have been unsafe. 

According to Hall, his job was to observe, report, and ensure no one 

loitered.

Suddenly, the assailant attacked the victim and knocked him to the 

ground, causing his head to hit the concrete. Hall did not anticipate the 

assailant would suddenly rush over to the victim and knock him to the 

ground. According to Hall, there was nothing he could have done to 

prevent it. One of the painters agreed that the situation escalated rapidly, 

and it did not look like the assailant, who was smaller in stature, would 

endanger the victim’s life. A video of the incident showed that the 

altercation lasted mere seconds.

Hall called 911. The victim passed away from his injuries over two 

months later. The victim’s death was ruled a homicide.

Appellant, as personal representative of the victim’s estate, sued Hall, 

G4S, and Broward County for negligence in failing to provide adequate 

security. The defendants filed answers and affirmative defenses, denying 

the allegations.

Hall and G4S moved for summary judgment, arguing that they were 

agents of the state and therefore entitled to sovereign immunity under 

section 768.28(9) and G4S Secure Solutions (USA), Inc. v. Morrow, 210 So. 

3d 92 (Fla. 2d DCA 2016). In support of their motion, G4S and Hall relied 

on a video of the incident as well as the contract between Broward County 

and G4S for security services. 

Appellant opposed summary judgment and moved to amend her 

complaint to allege causes of action for gross negligence and punitive 
3

damages against Hall and G4S. The trial court denied the motion to 

amend as to punitive damages. 

The trial court then granted summary judgment based, in part, on 

Morrow, where the Second District determined that the sheriff’s office had 

a degree of control over the operation of G4S that created an agency 

relationship under section 768.28(5). The trial court did not have the 

benefit of Lovelace, which was issued after the trial court ruled in this case. 

“The issue of sovereign immunity is a legal issue subject to the de novo 

standard of review.” Town of Gulf Stream v. Palm Beach Cnty., 206 So. 3d 

721, 725 (Fla. 4th DCA 2016). Summary judgment is also reviewed de 

novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 

130 (Fla. 2000).

The old standard for summary judgment required a moving party to 

“show conclusively the absence of any genuine issue of material fact.” 

Orlando v. FEI Hollywood, Inc., 898 So. 2d 167, 168 (Fla. 4th DCA 2005). 

However, the Florida Supreme Court recently issued an amendment to the 

Florida summary judgment rule to match the federal rule. In re Amends.

to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 192 (Fla. 2020). The federal 

rule “requires summary judgment ‘if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.’” Id. (citation omitted).

Article X, section 13 of the Florida Constitution provides: “Provision 

may be made by general law for bringing suit against the state as to all 

liabilities now existing or hereafter originating.” In 1973, the legislature 

exercised its authority and enacted section 768.28, which provides a 

limited waiver of the state’s sovereign immunity for tort claims. § 

768.28(1), Fla. Stat. (2017). The statute authorizes tort claims against 

“[t]he state and its agencies and subdivisions,” but limits the state’s 

liability for such claims to $200,000. § 768.28(5), Fla. Stat. (2017). 

“[S]tate agencies or subdivisions” is defined to include “corporations 

primarily acting as instrumentalities or agencies of the state, counties, or 

municipalities . . . .” § 768.28(2), Fla. Stat. (2017). The statute also 

provides that agents of the state acting within the scope of their 

employment have absolute immunity from tort claims:

No officer, employee, or agent of the state or of any of its 

subdivisions shall be held personally liable in tort or named 

as a party defendant in any action for any injury or damage 

suffered as a result of any act, event, or omission of action in 

the scope of her or his employment or function . . . .
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§ 768.28(9)(a), Fla. Stat. (2017). “Officer, employee, or agent” is defined as 

including, but not limited to

any health care provider when providing services pursuant to 

s. 766.1115; any nonprofit independent college or university 

located and chartered in this state which owns or operates an

accredited medical school, and its employees or agents, when 

providing patient services pursuant to paragraph (10)(f); and 

any public defender or her or his employee or agent, including, 

among others, an assistant public defender and an 

investigator.

§ 768.28(9)(b)(2), Fla. Stat. (2017).

“The immunity in section 768.28(9)(a) extends to certain private parties 

who are involved in contractual relationships with the state, provided that 

such parties are ‘agents’ of the state.” M.S. v. Nova Se. Univ. Inc., 881 So. 

2d 614, 617 (Fla. 4th DCA 2004). Whether the party being contracted with 

is an agent of the state turns on the degree of control retained or exercised 

by the state agency. Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997). “[T]he 

right to control depends upon the terms of the employment contract.” Id. 

When analyzing the issue of control, the focus should be on “the right to 

control, not the actual control . . . .” Villazon v. Prudential Health Care 

Plan, Inc., 843 So. 2d 842, 846 (Fla. 2003).

Appellant argues that the trial court erred in granting absolute 

immunity. Appellant relies on our opinion in Lovelace v. G4S Secure 

Solutions (USA), Inc., which held that G4S was entitled to limited immunity 

under section 768.28(5), rather than absolute immunity pursuant to 

section 768.28(9). 320 So. 3d at 189. Additionally, appellant argues that 

the facts of the present case are different such that G4S should be 

classified as an independent contractor and not even entitled to limited 

immunity. Appellees, in turn, argue that Lovelace incorrectly gave G4S 

limited immunity instead of absolute sovereign immunity and ask that this 

court reevaluate our ruling in Lovelace. 

As to both arguments from appellant and appellees, we decline to 

accept either request. 

As to appellant, we find that the facts surrounding the control of 

Broward County over the employees of G4S are virtually the same in 

Lovelace and this case. The exact same contract was used in both cases. 

Appellant highlights that the G4S guard worked alone in an overnight shift 
5

as opposed to the daytime shift in Lovelace, where the G4S guard worked 

side-by-side with Broward County employees. However, this minimal 

difference in the number of employees working side-by-side with the G4S 

guard can be based almost entirely on the fact that the G4S guard in the 

present case worked alone in an overnight shift. The time of the shift does 

not change the level of control that Broward County has over the G4S 

employees as evidenced by the contract.

As to appellees, we find, as we previously found in Lovelace, that G4S 

was entitled to limited sovereign immunity under section 768.28(5). 

Appellees rely on Stoll to advocate that G4S in this case should be entitled 

to absolute immunity. In Stoll, the supreme court found that physicians 

were agents of the state and thus entitled to sovereign immunity under 

section 768.28(9). 694 So. 2d at 703. However, because Stoll involved 

individuals, and not a corporation like G4S, the Stoll case does not support 

appellees’ proposition that G4S was entitled to immunity under section 

768.28(9). See also Pagan v. Sarasota Cnty. Pub. Hosp. Bd., 884 So. 2d 

257, 260 (Fla. 2d DCA 2004) (considering whether doctors had immunity 

under section 768.28(9) and whether a physicians’ group had immunity 

under section 768.28(5)); Keck v. Eminisor, 104 So. 3d 359, 367-68 (Fla. 

2012) (finding that a trolley driver was entitled to immunity under section 

768.28(9)); Theodore ex rel. Theodore v. Graham, 733 So. 2d 538 (Fla. 4th 

DCA 1999) (considering whether a physician was immune from suit under 

section 768.28(9)).

Appellant also argues that the trial court erred in failing to allow her to 

amend the complaint for a count of punitive damages against both 

appellees. 

“A trial court’s denial of a motion to amend is reviewed for abuse of 

discretion.” Quality Roof Servs., Inc. v. Intervest Nat’l. Bank, 21 So. 3d 883, 

885 (Fla. 4th DCA 2009). A proposed amendment is futile if it is 

“insufficient as a matter of law.” Id. (citation omitted).

Section 768.28(9)(a) states:

No officer, employee, or agent of the state or of any of its 

subdivisions shall be held personally liable in tort or named 

as a party defendant in any action for any injury or damage 

suffered as a result of any act, event, or omission of action in 

the scope of her or his employment or function, unless such 

officer, employee, or agent acted in bad faith or with malicious 

purpose or in a manner exhibiting wanton and willful disregard 

of human rights, safety, or property. . . .
6

(emphasis added). 

As discussed above, section 768.28(9) does not apply to G4S because 

it is a corporation. Rather, section 768.28(9) applies only to Hall, an 

individual. Pursuant to this statute, Hall is entitled to absolute immunity 

unless he acted in bad faith, with malicious purpose, or in a manner 

exhibiting wanton and willful disregard of human rights and safety. See 

id. “[W]anton” has been defined as “with a conscious and intentional 

indifference to consequences and with the knowledge that damage is likely 

to be done to persons or property.” Peterson v. Pollack, 290 So. 3d 102, 

110 (Fla. 4th DCA 2020) (citation omitted). “‘Willful’ means ‘intentionally, 

knowingly and purposely.’” Id. (citation omitted).

Additionally, section 768.72, Florida Statutes (2017), provides:

(2) A defendant may be held liable for punitive damages only 

if the trier of fact, based on clear and convincing evidence, 

finds that the defendant was personally guilty of intentional 

misconduct or gross negligence. As used in this section, the 

term:

(a) “Intentional misconduct” means that the defendant had 

actual knowledge of the wrongfulness of the conduct and the 

high probability that injury or damage to the claimant would 

result and, despite that knowledge, intentionally pursued that 

course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct 

was so reckless or wanting in care that it constituted a 

conscious disregard or indifference to the life, safety, or rights 

of persons exposed to such conduct.

(3) In the case of an employer, principal, corporation, or other 

legal entity, punitive damages may be imposed for the conduct 

of an employee or agent only if the conduct of the employee or 

agent meets the criteria specified in subsection (2) and: 

(a) The employer, principal, corporation, or other legal entity 

actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employer, 

principal, corporation, or other legal entity knowingly 

condoned, ratified, or consented to such conduct; or
7

(c) The employer, principal, corporation, or other legal entity 

engaged in conduct that constituted gross negligence and that 

contributed to the loss, damages, or injury suffered by the 

claimant.

“The statute requires the trial court to act as a gatekeeper and 

precludes a claim for punitive damages where there is no reasonable 

evidentiary basis for recovery.” KIS Grp., LLC v. Moquin, 263 So. 3d 63, 65 

(Fla. 4th DCA 2019) (citation omitted). “This is because punitive damages 

are reserved for truly culpable behavior and are intended to ‘express 

society’s collective outrage.’” Id. at 65-66 (citation omitted). Notably, “the 

required level of negligence for punitive damages is equivalent to the 

conduct involved in criminal manslaughter.” Valladares v. Bank of Am. 

Corp., 197 So. 3d 1, 11 (Fla. 2016).

In the instant case, the trial court did not abuse its discretion in 

denying the motion for leave to amend. Appellant failed to make a 

reasonable showing by record evidence or proffer that would provide a 

reasonable basis for recovery of punitive damages. The evidence relied 

upon and proffered by appellant does not constitute intentional 

misconduct or gross negligence. Rather, the record evidence showed that 

Hall acted in accordance with the “Post Orders.”

The Post Orders stated that in responding to crime, a security officer’s

“primary duties . . . are to observe and report.” In accordance with this 

directive, after Hall observed the victim and the assailant on his security 

camera, he left his office to find out what was going on. The Post Orders 

also stated that security guards should “leave apprehension and arrest to 

the police whenever possible,” that security guards should “[c]all for 

support at the first indication that it is needed,” and that “[t]here are few, 

if any instances where [a security guard] should feel compelled to take 

action in a potentially dangerous situation alone and unaided.” According 

to Hall’s supervisor, security officers are instructed not to get in between 

two individuals who are having an altercation because that would put the 

security officer and others at risk. Consistent with the Post Orders and 

instructions, Hall attempted to call his supervisor and did not physically 

intervene. 

Although the contract for security services between G4S and Broward

County stated that security guard tasks include preventing and 

terminating injurious acts, Hall stated that there was nothing he could 

have done to prevent the assailant from suddenly rushing over to the 

victim and knocking him to the ground. A witness also agreed that the 
8

situation escalated rapidly, and it did not look like the assailant, who was 

smaller in stature, would endanger the victim’s life. A video of the incident 

shows that the altercation lasted mere seconds and that the injurious act 

occurred suddenly and unexpectedly. Based on this record, it cannot be 

said that Hall acted in bad faith, with malicious purpose, or in a manner 

exhibiting wanton and willful disregard of human rights, safety, or 

property. See § 768.28(9)(a), Fla. Stat. The record is devoid of evidence 

that Hall engaged in intentional misconduct or gross negligence. See § 

768.72(2), Fla. Stat. As previously stated, “the required level of negligence 

for punitive damages is equivalent to the conduct involved in criminal 

manslaughter.” Valladares, 197 So. 3d at 11. Hall’s conduct was not close 

to criminal in any respect. Therefore, appellant could not state a claim for 

punitive damages.

In summary, we find that Lovelace controls and G4S acted as an agent 

for Broward County and was entitled to sovereign immunity. However, 

like in Lovelace, G4S would receive only limited sovereign immunity under 

section 768.28(5), and not absolute immunity under section 768.28(9). 

Thus, we reverse the trial court’s application of subsection (9) and remand 

for further proceedings under subsection (5). As to all other issues, 

including the trial court’s denial of appellant’s motion for leave to amend 

to allege a count for punitive damages, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings. 

WARNER and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.