HomeMy WebLinkAbout1402At the conclusion of the trial, plaintiff voluntarily
dismissed several of the individual defendants and the case was
submitted to the jury against the City Manager, Milton Davis, and
a City Police Officer, Michael Hill. The jury returned a verdict
for the plaintiff against the defendant City Manager only, finding
in favor of the defendant Police Officer. The jury found the
plaintiff guilty of comparative negligence equal to 75$, and
assessed the City Manager's negligence at 25$.
On appeal, defendant contends the trial court erred
in failinq to direct a verdict because plaintiff had not proven
the requisite special duty necessary to establish the liability of
a public officer. Appellant also contends that Section 375.251,
Florida Statutes (1979), limits liability for injury in parks and
provides immunity in this case.
The cause of action herein accrued prior to the
eEfective date of the waiver of sovereign immunity contained in
Section 768.28, Florida Statutes (1975). As such this case is
governed by the dictates of Modlin v. City of Miami Beach, 201
So.2d 70 (Fla. 1967). See Infande v. Seligman of Florida, Inc.,
380 So.2d 1169 (Fla. 4th DCA 1980).
Modlin states that a fundamental element of action-
able negligence is the existence of a duty owed by the person
charged with negligence to the person injured. Further, this duty
must be something more than the duty that a public officer owes to
the public generally. This gives rise to the requirement of a
special duty. The precise question here would be whether the City
Manager owed a greater or special duty to plaintiff than he owed
to the public generally.
Modlin was overruled by the Florida Supreme Court in
Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010
(Fla. 1979). Therein the Modlin rule was soundly criticized.
Commercial Carrier ccmments that the special duty requirement
results "in a duty to none where there is a duty to all."
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