Legal Report, September 2018

General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.


1.         Key v. Almase, 2018 Fla. App. LEXIS 11052, 43 Fla. L. Weekly D 1804, 2018 WL 3747786
 (Fla. 3rd DCA 2018). Individual immunity.

The underlying tort action arose after a head on automobile collision during a high-speed pursuit which resulted in four fatalities. Appellants are two City of Opa Locka police chiefs and the City Manager. Appellees are representatives of the four decedents. This is a consolidated appeal from a non-final order dismissing Appellant’s motion to dismiss Appellee’s complaint on the grounds of individual immunity under Section 768.28(9)(a), F.S. This section holds in part that “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. . . .”

After hearing on Appellant’s motion to dismiss, the court entered an order denying the motion. However, the order failed to specifically state that Appellants, as a matter of law, were not entitled to immunity under Section 768.28(9), F.S. On appeal, the Third DCA dismissed the appeal, holding that it did not have jurisdiction to review the order because the lower court order did not contain the requisite finding. Florida Rule of Appellate Procedure 9.130(a)(3)(C)(x) allows appeals of non-final orders that determine "that, as a matter of law, a party is not entitled to immunity under section 768.28(9), F.S.”  Here however, the lower court’s non-final order did not make such a finding or determination, so the Third DCA, in following its own precedent and that of the First and Fifth District Courts of Appeals, dismissed this appeal.   

In joining its sister jurisdiction (First DCA), this Court certified a question of great public importance to the Florida Supreme Court "regarding the specificity with which a court must deny an immunity motion 'as a matter of law' to permit interlocutory appellate review.”