PETER IRWIN, PH.D.

v.

SIGNAL SAFE, INC., ETC.

Third District Court of Appeal State of Florida Opinion filed January 17, 2024. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D22-2121 Lower Tribunal No. 17-29075 ________________ Peter Irwin, Ph.D., Appellant, vs. Signal Safe, Inc., etc., Appellee. An appeal from a non-final order from the Circuit Court for Miami- Dade County, Oscar Rodriguez-Fonts, Judge. Whitelock & Associates, P.A., and Meredith A. Chaiken, and Christopher J. Whitelock (Fort Lauderdale), for appellant. VLP Copenhaver Espino, Mike Piscitelli, and Kristen M. Jimenez (Fort Lauderdale), for appellee. Before SCALES, HENDON, and MILLER, JJ.

MILLER, J.

BACKGROUND

This dispute finds its genesis in a series of contracts executed between the Florida Department of Transportation (“FDOT”) and FIU. Under the terms of the contracts, FIU agreed to evaluate the performance of traffic reinforcement devices manufactured by Signal Safe in simulated storm conditions using the Wall of Wind, an engineering testing facility located on campus. Dr. Irwin was designated as a “co-principal investigator.” After performing testing, the team of professionals involved reported unfavorable results to FDOT. Dr. Irwin allegedly also published the findings in a public presentation to FDOT.

1 This case was consolidated with 3D22-2122 for purposes of oral argument.

STANDARD OF REVIEW

ANALYSIS

“[D]eeply rooted in feudal notions of the divine right of kings,” sovereign immunity stems from the premise that “the King can do no wrong.” Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340 S.W. 3d 352, 360 (Tenn. 2011) (quoting Cooper v. Rutherford County, 531 S.W. 2d 783, 786 (Tenn. 1975) (Henry, J., dissenting)). Distilled to its essence, “[t]he doctrine . . . provides that a sovereign cannot be sued without its own permission.” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005).

Id. (emphasis added). A corollary provision, section 768.28(9)(a), Florida Statutes, further clarifies: An officer, employee, or agent of the state or of any of its subdivisions may not 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.

The net effect of these two provisions is to insulate state employees from personal liability for torts committed within the scope of employment, absent the required scienter findings, while simultaneously allowing recourse against the State. Together, these provisions are intended “to give immunity to state employees and to make it clear that legal responsibility lies only with the State itself under its limited waiver of sovereign immunity.” Andrew v. Shands at Lake Shore, Inc., 970 So. 2d 887, 890 (Fla. 1st DCA 2007). In analyzing whether an act occurred “within the scope of employment,” Florida courts are governed by a tri-partite inquiry, consistent with the Restatement (Second) of Agency section 228 (Am. L. Inst. 1958): (1) [Whether] the conduct is of the kind the employee is hired to perform; (2) [whether] the conduct occurs substantially within the time and space limits authorized or required by the work to be

Fernandez v. Fla. Nat’l Coll., Inc., 925 So. 2d 1096, 1100 (Fla. 3d DCA 2006) (quoting Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 75–76 (Fla. 3d DCA 1990)). This inquiry ordinarily “presents a question for jury determination.” Garcy v. Broward Process Servers, Inc., 583 So. 2d 714, 716 (Fla. 4th DCA 1991) (Glickstein, J., dissenting) (citing Gonpere Corp. v. Rebull, 440 So. 2d 1307, 1307 (Fla. 3d DCA 1983)); see also De Martinez v. Lamagno, 515 U.S. 417, 442 (1995) (Souter, J., dissenting) (“[L]itigating the question whether an employee’s allegedly tortious acts fall within the scope of employment will, of course, always require some evidence to show what the acts were. Accordingly, there will always be overlap between evidence going to the scope-of-employment determination and evidence bearing on the underlying liability claimed by the plaintiff . . . .”); Restatement (Second) of Agency § 229 cmt. a. (Am. L. Inst. 1958) (“The limits of the scope of employment are dependent upon the facts of the particular case.”). But where the application of sovereign immunity is readily apparent on the face of the complaint, “it may be argued as a basis for a motion to dismiss.” Rankin v. Colman, 476 So. 2d 234, 238 (Fla. 5th DCA 1985). Against these principles, we turn to the case at hand. Signal Safe’s theory of liability on the claim of ordinary negligence is two-fold: (1) Dr. Irwin

Reversed and remanded.