IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ANDREA JORDAN, AS PERSONAL 

REPRESENTATIVE FOR THE ESTATE 

OF CHARLES E. JORDAN,

Appellant,

v. Case No. 5D16-1245

ALVIN NIENHUIS, AS SHERIFF 

OF HERNANDO COUNTY, FLORIDA,

Appellee.

________________________________/

Opinion filed November 4, 2016

Appeal from the Circuit Court 

for Hernando County,

Richard Tombrink, Jr., Judge.

Jeffrey D. Jensen, of Unice Salzman 

Jensen, P.A., Trinity, for Appellant.

Bruce R. Bogan and Melissa J. Sydow, of 

Hilyard, Bogan & Palmer, P.A., Orlando, for 

Appellee.

ORFINGER, J.

Appellant, Andrea Jordan, as personal representative of the Estate of Charles E. 

Jordan (“Decedent”), filed a wrongful death action against Alvin Nienhuis, in his capacity 

as Sheriff of Hernando County, Florida, based upon the alleged negligence of a 911 
2

operator in responding to a call for medical assistance.

1

 The trial court found that the 

Sheriff owed no actionable duty to Decedent and dismissed Appellant’s third amended 

complaint with prejudice. This appeal followed.2

The third amended complaint alleged Decedent experienced a medical 

emergency, inhibiting his ability to breathe. His wife, Annette Jordan, contacted 911 for 

assistance, informing the 911 operator of Decedent’s breathing difficulties. The 911 

operator told Mrs. Jordan that “help was on the way,” and questioned her about

Decedent’s condition. When Decedent’s condition worsened and he lost consciousness,

ending up on the floor, the 911 operator directed Mrs. Jordan to “just leave [him] there”

while awaiting further assistance from EMS. EMS arrived at the scene and administered 

CPR, but Decedent ultimately died. 

The third amended complaint asserted that the 911 operator negligently misled 

Mrs. Jordan about the seriousness of Decedent’s medical emergency and induced her 

not to render aid to Decedent, resulting in his death. The complaint further alleged the 

911 operator was negligent in giving Mrs. Jordan instructions on how to care for 

Decedent, assuring her that help was on the way, and leading her to believe that there 

was no need to render further aid. Appellant claimed that Mrs. Jordan relied on the 911 

operator’s assurances and did not explore alternative options for responding to 

Decedent’s emergency, thereby placing Decedent in a zone of danger. The trial court 

granted the Sheriff’s motion to dismiss the third amended complaint with prejudice for 

 

1 The Hernando County Sheriff’s Office operates and manages the 911 emergency 

communication system in Hernando County.

2 The trial court did not abuse its discretion in not allowing Appellant to further 

amend her complaint. We affirm as to that issue without further comment.
3

failure to state a cause of action, based on its finding that the Sheriff owed a duty of care 

only to the general public and not to Decedent individually and that Appellant had failed

to sufficiently plead a special relationship between the 911 operator and Decedent.

A trial court’s order granting a motion to dismiss with prejudice is reviewed de novo. 

See Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009) (reviewing de novo dismissal of 

complaint for failure to state cause of action). We take the factual allegations in the 

complaint as true and draw all reasonable inferences in favor of the pleader. Ray Coudriet 

Builders, Inc. v. R.K. Edwards, Inc., 157 So. 3d 484, 485 (Fla. 5th DCA 2015). However, 

general, vague and conclusory statements are insufficient to satisfy the requirement that 

a pleader allege “a short and plain statement of the ultimate facts showing the pleader is 

entitled to relief . . . .” Fla. R. Civ. P. 1.110(b); see Beckler v. Hoffman, 550 So. 2d 68, 70 

(Fla. 5th DCA 1989). 

“[F]or there to be governmental tort liability, there must be either an underlying 

common law or statutory duty of care with respect to the alleged negligent conduct.” 

Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985). 

Governmental tort liability generally depends on the nature of the governmental function, 

and has been broadly divided into four categories. Category I activities include legislative, 

permitting, licensing, and executive officer functions; category II includes enforcement of 

laws and the protection of the public safety; category III concerns capital improvements 

and property control operations; and category IV includes providing professional, 

educational, and general services for the health and welfare of citizens. Id. at 919. 

Activities that fall within categories I and II have no underlying common law duty of care; 

however, liability may nevertheless be imposed when a special relationship exists 
4

between the tort victim and the governmental actor. Id. at 919-21; see Everton v. Willard, 

468 So. 2d 936, 938 (Fla. 1985). In contrast to categories I and II, there may be 

governmental tort liability under categories III and IV, excepting those characterized as 

planning or judgmental. Dean, 3 So. 3d at 104; Trianon, 468 So. 2d at 921.

“The operation of a 911 emergency call system is part of the law enforcement and 

protection of public safety service provided by a [sheriff’s] office and therefore constitutes 

a Category II function.” Pierre v. Jenne, 795 So. 2d 1062, 1063 (Fla. 4th DCA 2001). 

Thus, to impose governmental liability, Appellant was required to plead sufficient facts 

that, if proven, demonstrate a special relationship existed between the Sheriff and the 

Decedent. See id.; see also Laskey v. Martin Cty. Sheriff’s Dep’t, 708 So. 2d 1013, 1014 

(Fla. 4th DCA 1998) (recognizing 911 emergency call system falls within category II, and 

rejecting assertion that because 911 service relays medical emergency calls as well as 

those concerning violations of law or fires, it is more closely analogous to category IV 

function). To establish a special relationship, Appellant was required to plead facts 

sufficient to show, if proven:

1) an express promise or assurance of assistance;

2) justifiable reliance on the promise or assurance of 

assistance; and,

3) harm suffered because of the reliance upon the express 

promise or assurance of assistance.

Pierre, 795 So. 2d at 1064. 
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The trial court correctly concluded that Appellant failed to allege facts sufficient to 

show the necessary elements to establish a special relationship.3 Nonetheless, Appellant 

asserts that a liability exists pursuant to the undertaker’s doctrine because the 911 

operator increased the risk of harm to Decedent. We disagree and conclude the 

undertaker’s doctrine is inapplicable. The undertaker’s doctrine applies when 

government agents engage an injured party, and then either control a situation and 

increase the risk of harm to the injured party or induce third parties—who would have 

otherwise rendered aid—to forebear from doing so, thereby placing the injured party in a

greater “zone of risk.” Dean, 3 So. 3d at 1040. 

In Dean, the Florida Supreme Court held that the plaintiff stated a claim for 

negligence based on the undertaker’s doctrine. In that case, after responding to a call for 

a safety check, the sheriff’s deputies gathered information from a neighbor about the 

subject of the call, entered the unconscious woman’s home, provided an assessment of 

her safety, and repeatedly assured third parties that the woman was asleep and that it 

was unnecessary to call for an ambulance. Id. at 1043. Based on those assurances, the 

 

3 For example, a special relationship was found to exist between the decedent and 

the city that operated the 911 service in St. George v. City of Deerfield Beach, 568 So. 

2d 931 (Fla. 4th DCA 1990), but that case is factually distinguishable. In St. George, the 

ex-wife called 911 to report that her ex-husband was drunk, creating a disturbance and 

refusing to seek medical care for a bleeding mouth. Paramedics responded, but the exhusband refused examination or treatment. About twenty minutes after the paramedics 

departed, the ex-wife again called 911, saying her ex-husband’s condition had worsened 

and that he had threatened to kill her. The 911 operator mishandled the call and failed to 

dispatch police or paramedics. The ex-husband died shortly thereafter from 

gastrointestinal hemorrhaging. The Fourth District found these facts sufficient, if proven,

to create a special relationship based on the negligence of the 911 operator in failing to 

dispatch emergency personnel after assuring decedent’s ex-wife that help was on the 

way. In the present case, the 911 operator did provide the promised help, apparently 

without delay.
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neighbor did nothing more until the next day when, after finding the woman still 

unresponsive, she called for an ambulance. The woman ultimately died. Id. The court 

held that the undertaker’s doctrine applied because the deputies took control of the 

situation and increased the risk of harm to the woman by discouraging third parties from 

rendering aid. As a result, the court found that the complaint stated a cause of action for 

wrongful death.4 Id. at 1052. 

Unlike the deputies in Dean, the 911 operator responded to Mrs. Jordan’s call by 

gathering information on Decedent’s condition and dispatching EMS to provide 

assistance. The 911 operator did not increase the risk of harm to Decedent or control the 

situation. It is not enough that a risk merely exists or that it is foreseeable. Instead, the 

defendant’s conduct must create the risk or control the situation before liability may be 

imposed. Bongiorno v. Americorp, Inc., 159 So. 3d 1027, 1029-30 (Fla. 5th DCA 2015).

We affirm the trial court’s order dismissing Appellant’s third amended complaint

with prejudice.

AFFIRMED.

EVANDER and LAMBERT, JJ., concur.

 

4

 Based on this reasoning, the Dean court found that the governmental liability 

involved in that case could be classified as a category IV function with a common law duty 

of care because the sheriff’s deputies undertook to provide a well-being check on a 

specific individual, and did not involve the public-duty doctrine or any of its exceptions 

because their actions did not involve enforcement of laws or the protection of public 

safety. 3 So. 3d at 1048 n.22.