       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 09, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                 No. 3D16-13
                          Lower Tribunal No. 13-6081
                             ________________


                                Londan Davis,
                                    Appellant,

                                        vs.

                                 Neftali Baez,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

      Brill Rinaldi Garcia and David W. Brill (Weston); Joel S. Perwin, for
appellant.

     Walter J. Harvey and John-Philip M. Iafelice; Haliczer Pettis & Schwamm
and Debra P. Klauber and Eugene K. Pettis (Fort Lauderdale), for appellee.


Before SALTER, EMAS and FERNANDEZ, JJ.

     EMAS, J.
      INTRODUCTION

      Londan Davis, the plaintiff below, appeals from the trial court’s entry of

final summary judgment in favor of Neftali Baez, the defendant below and an

employee of the Miami-Dade County School Board.         The trial court determined

that sovereign immunity barred Davis’ claim against Baez for individual

negligence, as pleaded in Count II of the operative complaint. We reverse, and

hold that the trial court erred in entering summary judgment on Davis’ individual

negligence claim, as there remain disputed issues of material fact as to whether

Baez acted in a manner that would place him beyond the protection of sovereign

immunity and render him individually liable to Davis.

      FACTS

      At all relevant times, Londan Davis was an eighteen-year-old student at

Sunset Senior High School in Miami-Dade County. She was struck by a car while

crossing from the west side of the street to reach the school bus stop on the east

side of the street. At the time of the accident (5:50 a.m.) it was dark outside, and

the bus had not yet arrived at the bus stop on the east side of the street. Davis

suffered serious injuries and she sued, among others, the Miami-Dade County

School Board and Neftali Baez, a school bus driver employed by the School Board.




                                         2
      In her operative complaint, Davis alleged, inter alia, that Baez and the

School Board were negligent for failing to instruct Davis and her brother1 to wait

on the west side of the street (the street being Northeast 18th Avenue) until the bus

arrived at the designated bus stop, halted traffic, activated its red flashing lights

and extended its “STOP” arm, thereby allowing Davis and her brother to safely

cross from the west side of the street to east side of the street. The issue on appeal

involves only Count II of the complaint, which sets forth a claim of individual

negligence against Davis only. Count II alleged, in pertinent part, that:

      ● Baez, the school bus driver, “on his own initiative, took it upon himself to
      advise the Davis children that he was going to be picking them up. . . on the
      east side of the road way, necessitating Plaintiff. . . to cross NE 18th
      Avenue.”

      ● Baez failed to instruct Plaintiff and her brother to wait on the west side of
      the street for the bus to arrive and to cross only after the bus arrived,
      stopped, and activated its red flashing lights and extended its stop arm.

      ● Baez required Davis and her brother to cross the street before the bus
      arrived, even though Baez knew or should have known that it would be
      dangerous for Davis to do so.

      In his discovery deposition, Baez acknowledged that he affirmatively told

Davis and her brother that they could not wait on the west side of the street; that he

told them they were required to cross the street and be waiting on the east side of


1 Londan Davis’ sixteen-year-old brother had already crossed to the east side of the
street at the time his sister was struck and injured. Ms. Davis’ brother is not a
party to the action.

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the street before the bus arrived; and that if Davis and her brother were not already

waiting on the east side of the street when the bus arrived, Baez would not wait for

them to cross and would not pick them up.

      Ms. Kathryn Beasley is the Bus Route Manager for Miami-Dade County

Public Schools, and is in charge of establishing and reviewing bus stops, bus

routes, and overseeing bus drivers. She testified in deposition that the Davis

children were not only permitted to wait on the west side of the street until the bus

arrived, but that the proper procedure is that the Davis children are supposed to

wait on the west side of the street until the bus arrived. Only after the bus arrived

and stopped, with its red lights flashing and its STOP arm extended, should the

Davis children cross to the east side of the street. Ms. Beasley testified that Baez’s

instructions to Davis and her brother was contrary to School Board policy and

contrary to bus driver training.

      Ms. Theodosia Davis is a Field Operations Specialist for Miami-Dade

County Public Schools, and is a first-level supervisor for bus drivers and for

receiving and resolving complaints from parents and school personnel. Ms. Davis

agreed with Ms. Beasley that students are permitted to wait on the other side of the

street for the bus to arrive and should cross the street to get to the bus stop only

after the bus has arrived and activated its lights and STOP arm to permit safe

crossing. Ms. Davis testified that she would not tell a student (as Baez did) that



                                          4
they are required to cross the street and be waiting at the stop before the bus

arrives; that there is no reason to tell a student this; and that if she became aware of

such a practice, she would take the necessary steps to correct it. Ms. Davis

testified she could not think of any action that would be more dangerous to the

students than telling them that they were required to cross the street before the bus

arrived.

      During her deposition, Ms. Davis was shown a copy of the Miami-Dade

County Public Schools’ “Handbook for School Bus Drivers, Aides and Operations

Staff” and affirmed that this Handbook provided in part: “Students must cross the

road only in front of the bus when traffic has been halted by means of the flashing

red lights and stop arm extended.” She indicated that this procedure should be

followed when students are waiting on one side of the street and the bus arrives on

the opposite side of the street.

      Another bus driver, Ms. Monica Smith, testified that the students are not

supposed to cross the street until the bus arrives and turns on its lights and extends

the STOP arm. Ms. Smith testified that she has never instructed students to cross

the street before the bus arrives at the stop.




      The Prior Appeal of the Order Dismissing the School Board



                                            5
      The School Board moved to dismiss the counts against it and Baez, asserting

that both were sovereignly immune from tort liability and that the complaint failed

to state a cause of action against the School Board because the School Board did

not owe a duty of care to Davis at the time of the injury, nor a duty to warn her of

the roadway’s dangerousness. The trial court granted the motion to dismiss, but

only as to the School Board, and only on the issue of duty. All claims against the

School Board (both direct and vicarious) were dismissed with prejudice and Davis

appealed that decision to this court. Davis v. City of Homestead, 154 So. 3d 443

(Fla. 3d DCA 2014) (Davis I). The only issue on appeal in Davis I was whether

the trial court erred in ruling that the School Board owed no duty to Davis. This

court affirmed the trial court’s decision per curiam, citing to Francis v. School

Board of Palm Beach County, 29 So. 3d 441 (Fla. 4th DCA 2010).2

      Baez answered Davis’ complaint below, asserting several affirmative

defenses, including sovereign immunity pursuant to section 768.28(9)(a), Florida

Statutes. Thereafter, Baez moved for summary judgment, arguing he was entitled

to summary judgment because the appellate court in Davis I had affirmed the trial

court’s determination that the School Board, and by extension, Baez, owed no duty

to Davis, and also argued that he was immune from liability under the sovereign

2 Appellant concedes that, as a result of our affirmance in Davis I, no cause of
action remains against the School Board, and the only remaining cause of action
she can pursue is Count II of the operative complaint, alleging individual
negligence by Baez.

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immunity statute because (1) the location of the bus stop was a planning-level

decision of the School Board; (2) Baez did not “undertake” a duty to Davis while

she was within Baez’s physical custody or control; and (3) Baez was acting in the

course and scope of his employment and Davis cannot show bad faith, malicious

purpose, or willful and wanton disregard.

      After a hearing, the trial court granted Baez’s motion for summary judgment

on both the duty and the sovereign immunity issues, and entered judgment. This

appeal followed, and we review de novo the trial court’s granting of summary

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

(Fla. 2000). In doing so, we must view the record and reasonable inferences

therefrom in a light most favorable to the nonmoving party, and any doubt

concerning the existence of a disputed issue of material fact must be resolved

against the moving party. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000); Colon

v. Outback Steakhouse of Fla., Inc., 721 So. 2d 769 (Fla. 3d DCA 1998).

      Law of the case

      The trial court determined that Davis could not proceed on Count II alleging

individual negligence against Baez, under the apparent belief that such a

conclusion was compelled by our decision in Davis I. Baez urges us to affirm this

determination, contending that our decision in Davis I constitutes law of the case

and forecloses Davis’ negligence action against Baez individually. While Davis I



                                        7
is indeed law of the case, we do not agree that our decision in that prior appeal

forecloses the individual negligence claim against Baez, which is premised upon

allegations that Baez acted outside the scope of his employment or acted in bad

faith or with malicious purpose or in a manner exhibiting wanton and willful

disregard of the safety of Davis. These allegations, if proven, would constitute an

exception to the sovereign immunity afforded to employees and agents of the

School Board, permitting personal liability against Baez.

      Davis I did not involve the question of sovereign immunity; instead the trial

court’s order (affirmed by us) was based solely on a finding that the School Board

owed no duty to Davis. The reason no duty was owed is that, as the Fourth District

held in Francis, 29 So. 3d at 444, the “school board does not have custody or

control over students while they are en route to their bus stops” and thus “the

school board does not have any duty to its students during this time.”3 Because

Davis was not on the bus or within the custody or control of the School Board (or




3 See also Harrison v. Escambia Cnty. School Bd., 434 So. 2d 316, 319 (Fla. 1983)
(holding “[a]s a general rule, if a public school entity provided transportation for
its pupils, it owes a duty of care with regard to that transportation. School boards,
however, are not insurers of students’ safety, . . . and a school board’s control over
its students regarding transportation extends from when a school bus picks up a
student at a bus stop to the school door. When a student is injured before reaching
a designated bus stop, or after leaving one, that student is outside the board’s duty
of care because the board’s duty stems from the fact of the school board’s physical
custody of its students” ) (internal citations omitted).

                                          8
its employees) at the time of the accident, there was no duty of care owed by the

School Board to Davis.

      Therefore, while our affirmance of that order did determine that the School

Board (and by extension, Baez) owed no duty to Davis based upon the fact that she

was not on the bus or otherwise within the physical custody or control of the

School Board at the time of the accident, our affirmance did not address or

determine whether Baez could be held individually liable if, as alleged in Count II

of the complaint, he voluntarily undertook to act, thereby creating a separate duty

owed to Davis. Further, and as alleged in Count II, such individual liability could

be imposed upon Baez only if, in undertaking to act, Baez did so in a manner that

would place him beyond the protection of sovereign immunity and render him

personally liable under section 768.28(9)(a). Upon our review of the record, we

determine that genuine issues of material fact remain in dispute on this question,

thereby precluding summary judgment on Count II of the complaint.

      Sovereign Immunity and Personal Liability

      We begin with the sovereign immunity statute, section 768.28(9)(a), which

provides in relevant part:

      (9)(a) 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


                                         9
      wanton and willful disregard of human rights, safety, or property. . . .
      The exclusive remedy for injury or damage suffered as a result of an
      act, event, or omission of an officer, employee, or agent of the state or
      any of its subdivisions or constitutional officers shall be by action
      against the governmental entity, or the head of such entity in her or his
      official capacity, or the constitutional officer of which the officer,
      employee, or agent is an employee, unless such act or omission was
      committed in bad faith or with malicious purpose or in a manner
      exhibiting wanton and willful disregard. The state or its subdivisions
      shall not be liable in tort for the acts or omissions of an officer,
      employee, or agent committed while acting outside the course and
      scope of her or his employment or committed in bad faith or with
      malicious purpose or in a manner exhibiting wanton and willful
      disregard of human rights, safety, or property. (Emphasis added).

      As can be seen, sovereign immunity is conferred upon Baez, as a School

Board employee, so long as he acted in the scope of his employment and did not

act in bad faith, or with malicious purpose, or in a manner exhibiting wanton and

willful disregard of human rights, safety, or property. Reading this provision in

conjunction with the allegations of the complaint and the record evidence in

opposition to Baez’s motion for summary judgment, it is clear that there remain

disputed issues of material fact that must be resolved by the trier of fact. There is

record evidence that:

      • Baez did not merely fail to instruct Davis and her brother to wait on the
      west side of the street for the bus to arrive and to cross only after the bus
      arrived, stopped, and activated its red flashing lights and extended its stop
      arm. Instead, Baez, on his own initiative, told Davis that she and her brother
      were required to cross the street and be waiting for the bus when it arrived at
      the bus stop, and that if they were not already there and waiting when the
      bus arrived, he would not wait for them to cross the street;




                                         10
      • This “requirement” by Baez was contrary to express School Board policy
      and bus driver training, by which Davis and her brother should have waited
      on the west side of the street until the bus arrived and stopped, with its red
      lights flashing and its stop arm extended, to permit safe crossing of the street
      by Davis and her brother;

      • The Field Operations Specialist for Miami-Dade County Public Schools
      acknowledged that Baez should not have advised Davis and her brother of
      this “requirement,” that there is no reason to tell a student this; and that if
      she had been aware of Baez’s action, she would take the necessary steps to
      correct it. The Field Operations Specialist could not think of any action that
      would be more dangerous to the students than telling them that they were
      required to cross the street before the bus arrived.

      Thus, while it may be true that ordinarily the School Board (and by

extension, Baez) would not owe a duty to Davis before she was actually on the bus

(see Davis I, affirming with citation to Francis 154 So. 3d at 443), there remains

the question whether, by voluntarily undertaking to act, in requiring Davis and her

brother to cross the street before the bus arrived, Baez created a foreseeable zone

of risk for Davis, and thereby owed a duty to Davis.

      The Undertaker Doctrine

      The most recent decision of the Florida Supreme Court addressing the nature

and scope of the undertaker doctrine is Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009).

In Wallace, a wrongful death action was filed by the mother of Brenda Wallace

against the Marion County Sheriff’s Office.       The complaint alleged4 that the

mother had attempted several times to call Brenda at home, but there was no

4The facts as alleged in the complaint are taken from the district court opinion.
See Wallace v. Dean, 970 So. 2d 864, 865-66 (Fla. 5th DCA 2007).

                                         11
answer. The mother called a neighbor to check on Brenda. The neighbor went to

the house and knocked on the doors and windows, but there was no response. The

neighbor then called 911. Two deputies responded to the 911 call. One of the

deputies entered the home through an unlocked window, and then opened the door

for the other deputy, the neighbor, and the neighbor’s father to enter the home.

The deputies found Brenda Wallace inside the home, breathing but otherwise

unresponsive, even when one of the deputies attempted to awaken her by calling

her name loudly and shaking one of her legs. The neighbor and the neighbor’s

father suggested to the deputies that Ms. Wallace was in a diabetic coma and that

the deputies should call an ambulance, but the deputies declined to call an

ambulance or summon any medical assistance. Instead, the deputies suggested that

the neighbor leave the door unlocked and return to check on her later. The next

morning, the neighbor found Brenda Wallace unresponsive and again called 911.

Emergency medical personnel responded to the call and transported Ms. Wallace

to the hospital, where she died several days later without ever regaining

consciousness.

      The complaint alleged that the deputies’ actions in undertaking a safety

check, engaging with Ms. Wallace, and thereafter failing to take any additional

action (e.g., calling an ambulance) placed Ms. Wallace in a zone of risk, either by




                                        12
increasing the risk of harm to Ms. Wallace or inducing third parties (who otherwise

would have rendered aid) to forebear from doing so.

      The trial court dismissed the complaint on the grounds that the deputies and

the Sheriff’s Office did not owe a common-law duty of care to Ms. Wallace, and

that by responding to the 911 call and conducting a safety check, the deputies were

performing a discretionary function for which the Sheriff’s Office (and the

deputies) were sovereignly immune. The Fifth District affirmed the trial court’s

dismissal of the complaint.

      The Florida Supreme Court quashed the district court decision, holding that

under the facts as alleged in the complaint, the deputies owed Ms. Wallace a duty

of care pursuant to the undertaker doctrine. The Wallace court observed, 3 So. 3d

at 1050:

      This Court has long adhered to the common-law doctrine that

            [i]n every situation where a man undertakes to act, or to
            pursue a particular course, he is under an implied legal
            obligation or duty to act with reasonable care, to the end
            that the person or property of others may not be injured
            by any force which he sets in operation, or by any agent
            for which he is responsible. If he fails to exercise the
            degree of caution which the law requires in a particular
            situation, he is held liable for any damage that results to
            another, just as if he had bound himself by an obligatory
            promise to exercise the required degree of care.... [E]ven
            “where a man interferes gratuitously, he is bound to act
            in a reasonable and prudent manner according to the
            circumstances and opportunities of the case.”



                                        13
             Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896
             (1932) (citations omitted) (emphasis supplied) (citing 1
             Thomas A. Street, Foundations of Legal Liability 92
             (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett,
             167 Ind. 491, 79 N.E. 503, 506 (1906)).

      The Wallace court reaffirmed the continued vitality of this well-entrenched

principle quoting from its previous decision in Union Park Memorial Chapel v.

Hutt, 670 So. 2d 64, 66-67 (Fla. 1996):

      Voluntarily undertaking to do an act that if not accomplished with due
      care might increase the risk of harm to others or might result in harm
      to others due to their reliance upon the undertaking confers a duty of
      reasonable care, because it thereby “creates a foreseeable zone of
      risk.”

      Wallace, 3 So. 3d at 1050.

      In the instant case, Baez told Davis that she could not wait on the west side

of the street and cross to the east side of the street after the bus arrived. Instead,

Baez told Davis that she was required to cross the street and be waiting at the bus

stop when the bus arrived, and that if she and her brother were not on the east side

when the bus arrived, he would not pick him up. By undertaking to act in this way,

Baez increased the risk of harm to Davis, and by following Baez’s “required”

procedure, Davis and her brother would be crossing the street without the safety

provided by the presence of a bus with its flashing lights and its STOP arm

extended.   Baez’s “required” procedure was contrary to School Board policy,

contrary to bus driver training, and even the School Board’s Field Operations



                                          14
Specialist stated she could not think of any action that would be more dangerous to

the students than telling them that they were required to cross the street before the

bus arrived.

       We hold that the allegations and the evidence support the application of the

undertaker doctrine and the conclusion that, by voluntarily undertaking to act and

affirmatively telling Davis she was required to cross the street and be waiting at the

bus stop when the bus arrived, Baez created a foreseeable zone of risk to Davis and

was under a duty to act with reasonable care under the circumstances.

      Our conclusion comes with this proviso: As a result of our holding in Davis

I, it has been determined that the School Board (and by extension, Baez) did not

generally owe a common-law duty to Davis, because she was not on the bus or

otherwise within the physical custody or control of the School Board at the time of

the accident. Thus, the only count remaining in the instant case is a single count

for the individual negligence of Baez. So, although the general facts of this case

permit application of the undertaker doctrine, individual negligence as to Baez can

be established only if, as alleged in Count II and as required by section

768.28(9)(a), Davis can prove that Baez’s actions were outside the course and

scope of his employment or were committed in bad faith or with malicious purpose

or in a manner exhibiting wanton and willful disregard of human rights, safety, or

property.



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      CONCLUSION

      The allegations of Count II, together with the depositions and other record

evidence presented in opposition to Baez’s motion for summary judgment,

establish that there remain material facts in dispute regarding Davis’ claim for

individual negligence against Baez. Our decision in Davis I established, as law of

the case, that the School Board cannot be held liable, either directly or vicariously,

based upon the absence of a duty owed by the School Board to Davis. However,

Davis is not foreclosed from pursuing Count II of the complaint, which alleged

individual liability against Baez for negligence, based upon the undertaker

doctrine. By undertaking to act (i.e., by advising Davis and her brother that they

were required to cross the street before the bus arrived at the bus stop), Baez was

under a duty to act with reasonable care. Baez could be found personally liable if

Davis can establish that Baez breached that duty and that, in doing so, Baez acted

outside the scope of his employment or acted in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of human rights,

safety, or property.      Reversed and remanded.




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