Collier v. Dade County 417 So. 2d 695

DANIEL S. PEARSON, Judge.

In 1956, Elizabeth Collier, a paying patient at Dade County-owned Kendall Hospital, underwent surgery. Twenty years later, she discovered that a hemostat had been left in her body during this surgery and, understandably, sued the County and the surgeon, Dr. Mixson. The trial judge entered summary judgment in favor of the defendants, holding that the defense of sovereign immunity was a bar to Collier’s action against the County and Mixson, who, the trial court found, operated under the County’s aegis.1

Collier’s claims, while not discovered until 1976, are controlled by the law as it existed in 1956. Under the law as it then existed, the County, as we will hereafter demonstrate, was immune from suit; and even assuming, arguendo, that Mixson was an employee of the hospital acting within the scope of his official duty at the time of his alleged negligence, Mixson was not cloaked with the County’s immunity. Collier quite clearly had a special and direct interest in Mixson’s performance of his duty and has allegedly sustained a special damage. Just as clearly, Mixson’s duty to Collier was non-discretionary. Under these circumstances, Mixson is not immune. Rupp v. Bryant, 417 So.2d 1309 (Fla.1982). The summary judgment entered in Mix-son’s favor, otherwise unsupportable, is reversed.

The thrust of Collier’s argument against the summary judgment for the County is that, as of 1956, a paying patient in a hospital owned and operated by a county could recover damages against the county. She ingeniously suggests that because in 1956 one could argue that Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (Fla.1952), supported her position, she is therefore entitled to have the holding of Suwannee retroactively misinterpreted, notwithstanding that we now know from Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), that Suwannee, correctly interpreted, lends no such support to Collier’s position:

“In Suwannee County Hospital Corp. v. Golden, supra, a husband and wife sued the appellant, a non-profit corporation created by a special act setting up a county hospital district, to recover damages for injuries occasioned by the negligent application of hot water bottles to the wife while she was a patient in the defendant’s hospital. The Supreme Court held that the special act which immunized the hospital from liability for the negligent acts of its officers, agents and employees did not preclude recovery by an injured, paying patient. We read this decision as holding only that a public corporation whose functions are local rather than state-wide does not share the sovereign immunity of the state. The attempted statutory immunization of a local hospital district cannot be equated with a constitutional immunity from suit .... ” 339 So.2d at 1115 (emphasis supplied).

It is this “constitutional immunity from suit,” without regard to whether the county is engaged in a governmental or proprietary undertaking, that counties have historically and continually enjoyed. Keggin v. Hills-borough County, 71 Fla. 356, 71 So. 372 (1916); McPhee v. Dade County, 362 So.2d *69774 (Fla. 3d DCA 1978); Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978); Smith v. Metropolitan Dade County, 343 So.2d 653 (Fla. 3d DCA 1977); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971).2 As the Florida Supreme Court said in Keggin v. Hillsborough County:

“While a county may in some respects resemble a municipality in that both organizations deal with public interests, their differences are so great that the cases discussing the latter’s liability in damages for the negligent omission to perform a public duty, are not analogous to those in which a liability is sought to be imposed upon a county. The one feature which sufficiently distinguishes them is that the counties are under the constitution political divisions of the State, municipalities are not. The county under our constitution being a mere governmental agency through which many of the functions and powers of the State are exercised, (citation omitted). It therefore partakes of the immunity of the State from liability.” 71 Fla. at 360, 71 So. at 373.

Collier correctly reminds us that we held in Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965), that the county was not immune from suit while engaged in the propriety endeavor of operating its bus system. However, in light of the Florida Supreme Court’s condemnation of Butts in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra, continued reliance on Butts is hardly possible.

“Without expressly overruling the Butts decision,3 we question the wisdom of its apparent extension of the Hargrove [v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957) ] rationale to the county level. Unlike a municipality, a county has no corporate fund or other proprietary holding. It has long been held that counties act as arms of the state. Thus a persuasive argument, and one which this Court has accepted previously, could be made for including counties in the Constitution’s protection of the state from legal liability. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916).” 339 So.2d at 1115-16.

Finally, as must already be apparent, it is of no significance that in Smith v. Duval County Welfare Board, 118 So.2d 98 (Fla. 1st DCA 1960), our sister court chose to distinguish Suwannee on the ground that Suwannee involved a paying patient and Smith a charity patient. That ready distinction does nothing to give Suwannee any greater meaning than that given it in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra.

Therefore, we hold that the County is immune from suit arising out of the alleged negligent operation in 1956 of a county-owned hospital and affirm the summary judgment entered in its favor.

Affirmed in part; reversed in part, and remanded.

BASKIN, Judge

(Concurring in part, dissenting in part).

Although I concur in reversal of the summary judgment entered in favor of Dr. Mixson, I disagree with both the reasoning and the result reached by the majority insofar as the County is concerned.

I dissent for two reasons. First, the inconsistent approach employed by the majority appears to me to be unjust. Although it recognizes that 1956 law applies to Mrs. Collier’s claims, the majority imposes the 1976 interpretation of Suwannee County Hospital Corp. v. Golden, 56 So.2d 911 (Fla.1952), contained in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). If 1976 law applied, Mrs. Collier would also be *698entitled to benefit from statutes enacted many years after her injury which enabled the County to waive sovereign immunity. § 768.15, Fla.Stat. (1969).1 Appellant’s claim arose from her 1956 surgery, however, and she may not, therefore, invoke the County’s subsequent waiver of sovereign immunity. Consequently, she should not suffer the retroactive misinterpretation 2 of Suwannee derived from the majority’s hindsight.

Second, in 1956, Suwannee supported recovery for paying patients. Smith v. Duval County Welfare Board, 118 So.2d 98 (Fla. 1st DCA 1960); cf. Butts v. County of Dade,3 178 So.2d 592 (Fla. 3d DCA 1965) (county owned and operated transportation on which paying passengers ride is not “governmental” for purposes of sovereign immunity; such an individual is entitled to redress if injured through bus’s negligent operation).

In Suwannee, the supreme court characterized government functions as either proprietary or governmental.4 It concluded that a hospital serving paying patients operates in a proprietary capacity and may not divest its patients of constitutional rights by attempted statutory immunization. The court stated:

It is our view that one who enters a hospital of the type of appellant and pays for the professional services he receives is entitled to the same protection, and under our constitution, to the same redress for wrongs, that he would be entitled to had he had the same experience in a privately owned and operated hospital.

Id. at 913.

Sovereign immunity is a device to save the taxpayer money. The immunity is generally waived in conjunction with the purchase of insurance by the County. It is the taxpayer, however, who suffers when he is accorded a lower standard of care in an immune county agency and then deprived of redress in the courts. Mrs. Collier should be permitted to proceed against the County because it engaged in activities which were no different from those conducted by private businesses.

For these reasons, I would reverse both the summary judgment entered by the trial court in favor of the County and the summary judgment entered in favor of Dr. Mixson.