Opinion
No. 94-2091.
April 13, 1995.
Appeal from the Circuit Court, Leon County, Ralph L. Smith, J.
Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., Tallahassee, for appellant.
Louis K. Rosenbloum and Virginia M. Buchanan of Levin, Middlebrooks, Mabie, Thomas, Mayes Mitchell, P.A., Pensacola, for appellee.
The Department of Corrections (DOC) appeals from a final judgment awarding damages in a negligence action in favor of the appellee. The appellant raises three issues on appeal. As a result of our disposition, it is only necessary for us to address two issues: (1) Whether the trial court erred in determining that the law of Florida rather than the law of Alabama applies in determining whether DOC can be held liable as a result of criminal acts of escaped convicts, and (2) whether the trial court erred in determining that DOC owed a duty to appellee under the circumstances of this case.
This case is controlled by Department of Corrections v. McGhee, 653 So.2d 1091 (Fla. 1st DCA 1995). As in McGhee, we find that the trial court did not err in applying Florida law in determining whether the Florida Department of Corrections can be held liable as a result of alleged negligence occurring in Florida; however, we find that no common law or statutory duty exists in favor of the appellee, and reverse the final judgment.
We certify the same question which has been certified in McGhee and in State of Florida Dep't of Corrections v. Vann, 650 So.2d 658 (Fla. 1st DCA 1995), as being one of great public importance:
WHETHER THE DEPARTMENT OF CORRECTIONS MAY BE HELD LIABLE AS A RESULT OF THE CRIMINAL ACTS OF AN ESCAPED PRISONER?
MINER, J., concurs.
ERVIN, J., concurs and dissents with written opinion.
I concur with the majority's disposition of the first issue, but I dissent as to its reversal of the final judgment based upon the second point, for the same reasons stated in my concurring and dissenting opinion in Department of Corrections v. McGhee, 653 So.2d 1091 (Fla. 1st DCA 1995). I also concur with the majority in certifying a question to the Florida Supreme Court as one of great public importance; however, I would modify the question as I have proposed in my concurring and dissenting opinion in McGhee.
The majority's disposition of the second issue rendered moot its consideration of appellant's third issue, i.e., whether the trial court erred in failing to apportion fault among both negligent and intentional tortfeasors, pursuant to section 768.81, Florida Statutes (1989). In that I would, as stated, affirm as to the second issue, I would reverse as to the third point for the identical reasons advanced in my concurring and dissenting opinion in McGhee.