            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           GERMAN FLOREZ,
                              Appellant,

                                     v.

BROWARD SHERIFF’S OFFICE and HOWARD FORMAN, in his official
   capacity AS CLERK OF COURTS FOR BROWARD COUNTY,
                         Appellees.

                              No. 4D18-1189

                             [April 24, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol Lisa Phillips, Judge; L.T. Case No. CACE 14-
011100.

   Ryan C. Tyler, Mario R. Giommoni and Kimberly L. Boldt of Boldt Law
Firm, Boca Raton, and Adam T. Dougherty of Dougherty Law Firm, P.A.,
Fort Lauderdale, for appellant.

  Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort
Lauderdale, for appellees.

DAMOORGIAN, J.

   Appellant, German Florez, sued the Broward Sheriff’s Office (“BSO”) for
negligence and false arrest after BSO arrested and detained Appellant for
ten days based on a previously executed warrant. In his complaint,
Appellant alleged that although he was initially served with the warrant by
BSO while either in court or inmate housing, BSO failed to follow its own
protocol and, as a result, erroneously entered the executed warrant as
active in its system. The court dismissed Appellant’s lawsuit with
prejudice, citing to case law establishing BSO did not owe Appellant a duty
to ensure that the warrant was properly recorded in its system. We agree
that BSO lacked such a duty and, therefore, Appellant could not state a
cause of action for negligence. However, we do not agree that this lack of
duty precluded Appellant from alleging a cause of action for the intentional
tort of false arrest and, therefore, reverse and remand for further
proceedings.
Analysis

    As Appellant’s lawsuit was against a governmental agency, our analysis
must necessarily begin with an overview of governmental tort liability.
Generally speaking, the sovereign is immune for tort liability unless such
immunity is expressly waived. Town of Gulf Stream v. Palm Beach Cty.,
206 So. 3d 721, 725 (Fla. 4th DCA 2016) (“Sovereign immunity protects
the sovereign from being sued without its consent.”). To that end, “[t]he
State of Florida has waived sovereign immunity in tort actions for any act
for which a private person under similar circumstances would be held
liable.” Henderson v. Bowden, 737 So. 2d 532, 534–35 (Fla. 1999) (citing
Art. X, § 13, Fla. Const.; § 768.28 Fla. Stat. (1995)). However, before
considering whether sovereign immunity bars a lawsuit, courts must first
determine if there is tort liability to be immune from. See Wallace v. Dean,
3 So. 3d 1035, 1044–45 (Fla. 2009); Pollock v. Fla. Dep’t of Highway Patrol,
882 So. 2d 928, 932 (Fla. 2004).

   Negligence

   In order to establish that a defendant is liable for the tort of negligence,
the claimant must establish that the defendant owed it a duty of care,
which it breached, thereby causing the claimant harm. Williams v. Davis,
974 So. 2d 1052, 1056 (Fla. 2007). The government’s duties for purposes
of negligence are dictated by the common law and statute. Trianon Park
Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985) (“[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.”). Further, “[t]he responsibility to enforce the laws for the good
of the public cannot engender a duty to act with care toward any one
individual, unless an official assumes a special duty with regard to that
person.” Pollock, 882 So. 2d at 935.

   With these parameters in mind, it is well established that the
government does not owe individual citizens a common law duty to convey
accurate information or maintain accurate records. Glenney v. Forman,
936 So. 2d 660, 662 (Fla. 4th DCA 2006) (noting that “this court has not
recognized a duty of governmental officials to maintain records or issue
paperwork for the benefit of an individual or particular group of
individuals”); City of Dunedin v. Pirate’s Treasure, Inc., 255 So. 3d 902, 905
(Fla. 2d DCA 2018) (holding that a city did not “owe a duty to convey
accurate information”). Therefore, absent the government’s assumption of
a special duty, the government’s failure to maintain accurate records
cannot form the basis of a negligence suit by a person affected by


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erroneous record keeping. Id. This is true even if the agency did not follow
its own procedures. Pollock, 882 So. 2d at 936–37.

    For example, in the factually similar Lovett v. Forman, 883 So. 2d 319,
320 (Fla. 4th DCA 2004), a defendant sued both the clerk of court and the
sheriff’s office in negligence after the clerk failed to make a computer entry
which would have shown a warrant for the defendant’s arrest was
withdrawn. Based on the clerk’s negligent record keeping, the defendant
was wrongfully arrested and incarcerated for two months. Id. On appeal,
this Court held that the defendant could not maintain a cause of action
against the clerk or sheriff based on the clerk’s error because the
maintenance of records is a function undertaken by the government for
the public generally and does not create a special duty. Id. at 320–21; see
also Moore v. Dep’t of Corr., 833 So. 2d 822, 823–24 (Fla. 4th DCA 2002)
(holding no special duty owed which would permit recovery against
government where individual was wrongfully arrested by another agency
because corrections officer negligently failed to revoke outstanding
warrant for her arrest after learning her probation was terminated);
Holodak v. Lockwood, 726 So. 2d 815, 816–17 (Fla. 4th DCA 1999) (holding
clerk did not owe individual drivers special duty of care to properly and
timely record traffic violation fine payments different from duty owed the
general public to keep proper records); Layton v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 676 So. 2d 1038, 1041 (Fla. 1st DCA 1996)
(holding that a defendant could not maintain a cause of action for
negligence against the DMV for its failure to accurately maintain her
driving records resulting in her wrongful arrest because “the maintenance
of DHSMV records is a function undertaken by the government for the
public generally and that the duty to perform this function accurately runs
to the public and not to individual licensed drivers”).

    Here, Appellant did not allege that BSO’s negligence took place in the
context of a special duty. Rather, Appellant alleged that BSO was negligent
in “failing to properly record [Appellant’s] voided warrant.” This negligence
did not implicate any duty separate and distinct from the duty owed by
BSO to the public at large. Therefore, Appellant cannot allege a valid cause
of action for negligence against BSO and the court properly dismissed this
count.




                                      3
False Arrest

    The tort of false arrest 1 is an intentional tort and, therefore, does not
necessitate the same showing of duty requisite to a negligence claim.2
Jibory v. City of Jacksonville, 920 So. 2d 666, 667 (Fla. 1st DCA 2005).
Instead, it requires proof of “1) the unlawful detention and deprivation of
liberty of a person 2) against that person’s will 3) without legal authority
or ‘color of authority’ and 4) which is unreasonable and unwarranted
under the circumstances.” Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.
2d 1266, 1268 (Fla. 4th DCA 2006).

    When a claimant is arrested by an agency based on a facially sufficient
and validly issued arrest warrant, that person cannot satisfy the elements
of a false arrest claim because the warrant confers “legal authority” on the




1 The tort of false arrest is often used interchangeably with the tort of false
imprisonment and, thus, case law discussing false imprisonment is instructive
to the tort of false arrest and vice versa. Willingham v. City of Orlando, 929 So.
2d 43, 49–50 (Fla. 5th DCA 2006) (recognizing that the torts of false
imprisonment and false arrest are “often ‘distinguishable in terminology only’”
and are treated as “the same tort when the issue involves an arrest and detention
by a law enforcement officer” (quoting Johnson v. Weiner, 19 So. 2d 699, 700 (Fla.
1944))).

2 As outlined in the Second Restatement of Torts, “‘[d]uty’ is rarely used in dealing
with the invasions of legally protected interests by acts which are intended to
invade them.” RESTATEMENT (SECOND) OF TORTS § 4 cmt. b (AM. LAW INST. 1965).
As explained by a North Carolina court:

       All [a]ctionable negligence presupposes the existence of a legal
       relationship between parties by which the injured party is owed a
       duty by the other, and such duty must be imposed by law. The law
       may impose that duty by statute, or else generally by operation of
       law under application of the basic rule of the common law which
       requires one to exercise due care when performing an undertaking
       and not to endanger the person or property of others. By contrast,
       the intentional tort of battery is not premised on the existence of a
       duty between the parties.

Lynn v. Burnette, 531 S.E.2d 275, 279 (N.C. Ct. App. 2000) (internal citations
and quotations marks omitted). See also Gipson v. Kasey, 150 P.3d 228, 231 n.2
(Ariz. 2007) (“Intentional torts, in contrast [to negligence], do not require proof of
a predicate duty of care.”).


                                          4
arresting agency. Willingham, 929 So. 2d at 50. 3 This is true even if the
warrant was erroneously issued by another entity but still appears to be
facially valid to the arresting agency. Id. (court properly granted summary
judgment in arresting agency’s favor on arrested person’s false
imprisonment claim when the arresting agency effectuated the arrest
pursuant to a warrant that was erroneously issued by a court in another
county); Andrews v. Fla. Parole Comm’n, 768 So. 2d 1257, 1263 (Fla. 1st
DCA 2000) (holding that the court properly dismissed a false
imprisonment claim against the Department of Corrections after it
detained the defendant pursuant to a warrant erroneously issued by
another entity because “[the Department of Corrections] was entitled to
accept the warrants as lawful, as they were regular on their face and
issued by a legal body having authority to issue warrants”). The reason
for this appears to be that law enforcement does not have the discretion to
disregard a facially valid warrant issued by an entity authorized to issue
warrants. Eslinger v. Shields, 91 So. 3d 185, 186 (Fla. 5th DCA 2012)
(holding that an arresting agency was not liable for false imprisonment
when it arrested the defendant pursuant to a warrant erroneously issued
by an entity in another jurisdiction because the arresting agency “had no
obligation to look behind the warrants and no discretion in executing
them”).

   However, if the warrant is void and thus facially invalid due to the
conduct of the arresting agency, the analysis is different. In the factually
similar Jibory, a plaintiff was arrested by the City of Jacksonville (“the
City”) on an outstanding warrant and then arrested by the City on the
same warrant two years later. 920 So. 2d at 666–67. The subsequent
arrest was a result of the City’s failure to delete the warrant from its system
after the first arrest. Id. at 667. The court held that under these
circumstances, the plaintiff could allege a cause of action for false
arrest/imprisonment against the City. Id. In arriving at this conclusion,
the Jibory court pointed out that “this case does not present a situation
where appellee was entitled to accept the warrant as lawful because it was
issued by another entity having the legal authority to issue warrants.” Id.
“Rather, this case presents a situation where appellee, through its own
employees, failed to delete the warrant from its computer records after
appellee’s officers executed it [two years prior].” Id. at 668.


3 The Willingham court incorrectly discussed the lawfulness of the arrest
pursuant to a warrant in terms of duty. 929 So. 2d at 49–50. However, the
import of its holding was that an arrested person cannot maintain a false arrest
or imprisonment claim against a law enforcement agency when the arrest is made
pursuant to a “facially sufficient and validly issued arrest warrant[].”

                                       5
   In the instant case, Appellant alleged that BSO served Appellant with
the warrant either while he was in court or in inmate housing. BSO later
arrested him on the same warrant due to BSO employee error. Thus,
based on the facts of the complaint as pled, the alleged false arrest was
the result of a warrant which was void per BSO’s own actions. Accordingly,
under the authority of Jibory, Appellant adequately alleged that BSO
committed the intentional tort of false arrest as the arrest was not made
pursuant to a facially valid warrant and, thus, was not “lawful.”

    Having determined that there was potential tort liability for false arrest,
the next question is whether sovereign immunity bars such liability. On
this point, Jibory is also instructive and provides that sovereign immunity
does not bar a false arrest suit against the government. Id. at 667 (citing
Sego v. City of Fernandina Beach, 771 So. 2d 1235, 1235 (Fla. 1st DCA
2000), for the proposition that sovereign immunity does not preclude an
action for false arrest); Dickinson v. Gonzalez, 839 So. 2d 709, 713 (Fla. 3d
DCA 2003) (citing Lester v. City of Tavares, 603 So. 2d 18, 19 (Fla. 5th
DCA 1992), for the proposition that there is no sovereign immunity for
false arrest); Thomas v. Fla. Game & Fresh Water Comm’n, 627 So. 2d 541,
542 (Fla. 2d DCA 1993) (“Sovereign immunity does not bar an action for
false arrest.”). Therefore, the court erred in dismissing Appellant’s false
arrest count.

   Affirmed in part, reversed in part, and remanded.

CONNER and FORST, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                      6
