Undertaker’s Doctrine

The Undertaker’s Doctrine in Florida has nothing to do with burying people. It relates instead to the responsibility of one who undertakes by contract or gratuitously to aid one in peril and fails to act as a reasonable man in carrying out that aid. The recent Florida Supreme Court opinion of Wallace v. Dean, 34 Fla. L. Weekly S52 (Fla. Jan. 22, 2009) explains the current Florida law both with respect to the Undertaker’s Doctrine as well as the parameters of sovereign immunity.

The plaintiff in that wrongful death action suffered a dismissal of her claim with prejudice when she sued the Sheriff of Marion County for the actions of his Deputy in answering a call to come to the aid of plaintiff’s decedent who had been found unconscious in her home. The Deputies, when asked to do so, failed to call an ambulance and assured the plaintiff and her mother’s neighbors that her mother was merely sleeping despite the fact that they had literally screamed at her and shaken her violently enough to move her across her bed.

The case involved two issues. First, whether the Sheriff had any duty to act nonnegligently as to plaintiff’s decedent and, second, if such a duty existed and negligence ensued, did sovereign immunity bar the action.

The Fifth District had affirmed the Circuit Court’s order of dismissal on the theory, inter alia, that the Deputy’s actions were merely passive nonfeasance rather than an act of negligence and at the most “poor judgment.” The Supreme Court made short work of that argument stating:

“A failure to conform to the standard [of care]

is negligence, therefore, even if it is due to

clumsiness, stupidity, forgetfulness, an

excitable temperament, or even sheer

ignorance. An honest blunder, or a mistaken

belief that no damage will result, may

absolve the actor from moral blame, but the

harm to others is still as great, and the

actor’s individual standards must give way

in this area of the law to those of the public.

In other words, society may require a person

not to be awkward or a fool.”

In answering the question of whether or not the Sheriff, through his Deputies, had a duty to plaintiff’s decedent, the Court explained the underpinning of the “Undertaker’s Doctrine.” At S55, the Court held:

“As this Court recognized over sixty years ago

in Banfield v. Addington, ‘[i]n every situation

where a man undertakes to act,. . . 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.’ 104 Fla. At 667, 140 So. At 896. . . .

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.’ McCain v. Florida Power Corp.,

593 So. 2d 500 (Fla. 1992); Kowkabany,

606 So. 2d at 720-21. . . .” (Emphasis

supplied by Court.)

Here the Sheriff’s agents, responding to a 911 call, entered the decedent’s home and assessed her safety and assured her neighbors and her daughter by phone that she was only asleep and didn’t need medical attention. In fact, she was in a diabetic coma and died after being taken to a hospital the next day. At S56 the Court explains why this subjects the Sheriff to liability under the Undertaker’s Doctrine.

“[w]here. . . the actor’s assistance has put the

other in a worse position than he was in before,

either because the actual danger of harm to

the other has been increased by the partial

performance, or because the other, in reliance

upon the undertaking, has been induced to

forego other opportunities of obtaining

assistance, the actor is not free to discontinue

his services where a reasonable man would

not do so. He will then be required to

exercise reasonable care to terminate his

services in such a manner that there is no

unreasonable risk of harm to the other, or

to continue them until they can be so

terminated.” (Emphasis supplied by Court.)

Having determined that the allegations of the complaint satisfactorily raised an issue which stated a cause of action because the Deputies’ actions created a duty to nonnegligently perform their responsibilities, the Court next turned to the question of whether the action was nevertheless barred by sovereign immunity. To answer that question, the Court returned to the four part test contained in Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979). That test requires at least one negative answer to one of the following four questions. First, does the challenged act, omission or decision necessarily involve a basic governmental policy, program, or objective? Second, is the questioned act, omission or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? Third, does the act, omission, or decision require the exercise of basic policy evaluation, judgment and expertise on the part of the governmental agency involved and finally, does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? See Commercial Carrier, 371 So. 2d at 1019. Clearly a yes answer is required to both the first and fourth questions but the Court found that as to the second and third questions the answer would be a decidedly clear “no.” The Court reasoned as to the second question that performing a safety check more diligently would not in any way change the course or direction of the policy performing those checks and the Deputies did not have to exercise planning level evaluation or judgment. At S57, the Court held:

“Based upon our review of these questions, we

hold that the alleged actions of the deputies’ were

undertaken, within the scope of their employment

and were clearly operational in nature. Subjecting

the Sheriff to responsibility and accountability in

this case does not involve judicial scrutiny of any

discretionary, quasi-legislative policy-making or

planning; instead, such a legal inquiry will

merely require the trier of fact to determine –

consistent with traditional principles of Florida

tort law – whether the deputies should have

acted in a manner more consistent with the

safety of the decedent. See Kaisner, 543 So.

2d at 737-38. The traditional principles of

tort law implicated in this case in no way

present a nonjusticiable political question.”

The Court was careful to explain that the test of whether actions of a governmental employee are discretionary and, therefore, immune from suit or operational and, therefore, not immune from suit, therefore, does not relate to the dictionary definition of discretion. Every voluntary act of a human being involves some discretion. Instead the test is as stated by the Court at S57:

“. . . discretion in the Commercial Carrier sense

refers to discretion at the policy making or

planning level.” (emphasis supplied). ‘Planning

level functions are generally interpreted to be

those requiring basic policy decisions, while

operational level functions are those that

implement policy.” (Emphasis supplied by Court.)

This four to three decision of the Florida Supreme Court explains and clarifies the Undertaker’s Doctrine as well as the limits of sovereign immunity in Florida.

Originally published in May 2009