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Filing # 131551145 E-Filed 07/28/2021 10:12:34 AM
IN THE CIRCUIT COURT OF THE 15™
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.:50-2021-CA-005196-XXXX-MB
MARTIA HOLMAN-YOUNG, as Personal
Representative of the Estate of MELVIN
YOUNG, deceased;
Plaintiff,
v.
WEST PALM BEACH HOUSING AUTHORITY;
CITY OF WEST PALM BEACH; PALM BEACH
CATINITY. TAUNT NAT OLOTIDITY FOND ANTV:
CUUINL 1, JULUN VUG OGUURLE LT CUMIFAINT,
and JOHN DOE MANAGEMENT COMPANY,
Defendants.
/
DEFENDANT, WEST PALM BEACH HOUSING AUTHORITY’S. AMENDED MOTION
TO DISMISS COUNT ONE OF PI.
Defendant, WEST PALM BEACH HOUSING AUTHORITY (“WPBHA”), by and
through the undersigned counsel, pursuant to Rule 1.140 of the Florida Rules of Civil Procedure
and Florida Statute §768.28, hereby moves for entry of an Order by this Court dismissing with
prejudice Count One (1) of Plaintiffs Complaint for Damages, on the basis that WPBHA has
sovereign immunity from suit and no liability for the conduct alleged, and as grounds therefore
states the following:
1. WPBHA is a governmental entity established by the City of West Palm Beach,
Florida in 1938 pursuant to Florida Statute §421.04 and the enactment of the National Housing
Act of 1937.
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2. On May 25, 2019, the Decedent, Melvin Young (“Decedent”), was involved in a
shooting at Robinson Villa Apartment Complex and subsequently died as a result of his injuries.
3. On March 8, 2021, the Honorable Maxine Cheesman of the Palm Beach County
Probate Division issued a Letter of Administration appointing Plaintiff as the personal
representative for Decedent’s estate.
4. On or about April 22, 2021, Plaintiff filed a Complaint for Damages
(“Complaint”) which contained a total of five (5) claims of negligence, including one (1) count
of negligence against WPBHA.
5. Specifically, Plaintiff's Complaint alleges that WPBHA owed a duty to the
Decedent to maintain the Robinson Villa Apartment Complex in a reasonably safe condition, but
breached this duty by failing to provide security at the property, failing to retain security
personnel to patrol and monitor the property, and by failing to take additional security measures
at the property. Jd. Plaintiffs Complaint further alleges that the Decedent’s death was a direct
and proximate cause of WPBHA’s breach of duty regarding security measures and security
procedures. Id.
6. However, since WPBHA ts a governmeniai eniity established by the City ot West
Palm Beach, Florida and operating of a subdivision of the State of Florida, WPBHA is entitled to
sovereign immunity for claims of tort liability.
7. Further, the actions of WPBHA which Plaintiff alleges were a breach of
WPBHA’s duty to the Decedent are discretionary functions, which Florida courts have
repeatedly held cannot be the subject of traditional tort liability against a government entity.
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Therefore, Plaintiff's claim against the WPBHA is barred and should be dismissed with
prejudice.
MEMORANDUM OF LAW
I. WPBHA is a governmental entity established by the City of West Palm Beach, and
therefore is entitled to the protections of sovereign immunity.
In Florida, the doctrine of sovereign immunity protects the sovereign from being sued
without its consent. See Town of Gulf Stream v. Palm Beach County, 206 So.3d 721, 725 (Fla. 4
DCA 2016); City of Fort Lauderdale v. Israel, 178 So.3d 444, 446 (Fla. 4" DCA 2015). Further,
under Florida law sovereign immunity is the rule, rather than the exception, and any waiver of
sovereign immunity must be clear and unequivocal. See Pan-Am Tobacco Corp. v. Dep’t of
Corr., 471 So.2d 4, 5 (Fla. 1984); Manatee County v. Town of Longboat Key, 365 So.2d 143, 147
(Fla. 1978).
Additionally, while sovereign immunity may have originally been intended to apply only
to the state, the Florida Supreme Court has held that “[iJmmunity was always deemed to have
existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities.” See
Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015-16 (Fla. 1979). The
Florida Supreme Court has also held that since 1968, municipalities, counties, and school
districts have been in constitutional parity with one another. Cauley v. City of Jacksonville, 403
So.2d. 379, 385 (Fla. 1981). Further, in Cauley the Florida Supreme Court held that “sovereign
inimunily SHOU apply Equally i all CONSUTONANY-auinOTiZed goVETTeALal cilities aia HOt 1S
a disparate manner.
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In this case, the WPBHA is a government entity and is therefore entitled to same
sovereign immunity protections and scrutiny as any other government entity. Specifically,
Florida Statute §421.04(1) states that “[iJn each city, as herein defined, there is hereby created a
public body corporate and politic to be known as the “Housing Authority” of the city; provided,
however, that such authority shall not transact any business or exercise its powers hereunder
until or unless the governing body of the city by proper resolution shall declare that there is need
for an authority to function in such city.”
As described above, the WPBHA was established by the City of West Palm Beach in
1938 following the enactment of the National Housing Act of 1937. In accordance with the
National Housing Act of 1937 and Florida Statute §421.04, the City of West Palm Beach
subsequently declared that there was a need for the WPBHA to function. As a result, similar to a
city or county school board, the WPBHA constitutes a government entity for sovereign immunity
purposes. Therefore, WPBHA is entitled to the sovereign immunity protections and scrutiny
afforded to other governmental entities.
II. Count I of Plaintiff’s Complaint against WPBHA alleges actions by WPBHA which
are discretionary decisions, and which are therefore barred by the doctrine of
sovereign immunity.
In determining the applicability of sovereign immunity, Florida courts historically look at
the functions and decisions of the governmental agency which give rise to the potential lawsuit.
Specifically, Florida Courts have previously held that “decisions made at the operational level—
decisions or actions implementing policy, planning, or judgmental governmental functions—
generally do not enjoy sovereign immunity." See Commercial Carrier Corp. at 1021; Miami-
Dade Cnty. v. Pozos, 242 So. 3d 1152, 1162 (Fla. 3d DCA 2017).
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However, as referenced above, the Florida Supreme Court has previously held that
“Tijmmunity was always deemed to have existed for legislative, quasi-legislative, judicial and
quasi-judicial acts of municipalities.” See Commercial Carrier Corp. at 1015-16. In 2009, the
Florida Supreme Court expanded on this previous ruling, holding that "[t]he separation-of-
powers provision present in article II, section 3 of the Florida Constitution requires that ‘certain
[quasi-legislative] policymaking, planning or judgmental governmental functions cannot be the
subject of traditional tort liability." Wallace v. Dean, 3 So. 3d 1035, 1053 (Fla. 2009) (second
alteration in original) (quoting Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1020
(Fla. 1979)).
In order to determine whether the subject actions constitute a discretionary function
which would subject the government entity to sovereign immunity or constitute an operational-
level decision which would not enjoy sovereign immunity, Florida courts have determined there
are certain preliminary questions that must be answered. Specifically, Florida courts have
determined that these preliminary questions are:
“(1) Does the challenged act, omission, or decision necessarily involve a basic
governmeniai policy, program, or objective?;
(2) 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?;
(3) 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
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(4) 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?”
Commercial Carrier Corp. at 1019.
If these preliminary questions can be clearly and unequivocally answered in the
affirmative, then the challenged act, omission, or decision can, with a reasonable degree of
assurance, be classified as a discretionary governmental process and nontortious, regardless of its
unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then
further inquiry may well become necessary, depending upon the facts and circumstances
involved." /d. (quoting Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 407
P.2d 440, 445 (Wash. 1965)).
In this case, the actions by WPBHA that Plaintiff alleges give rise to the subject lawsuit
relate to WPBHA’s security policies and procedures for the property where the incident
occurred. Specifically, Plaintiff's Complaint alleges that breached its duty to Decedent by failing
to provide security at the property, failing to retain security personnel to patrol and monitor the
property, and by failing to take additional security measures at the property. See Piainiyff's
Complaint. Plaintiff's Complaint further alleges that the Decedent’s death was a direct and
proximate cause of WPBHA’s breach of duty regarding security measures and security
procedures. Id.
WPBHA contends that the facts and circumstances surrounding the subject incident in
this case, as well as the issues alleged in Plaintiff's Complaint are similar to those address by the
Fourth District Court of Appeals (“4"* DCA”) in School Board of Broward County v. McCall,
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2021 Fla. App. LEXIS 7180, 46 Fla. L. Weekly D 1144, 2021 WL 1991683. In McCall, the
plaintiff alleged that after having attended a high school basketball game a crowd of people
leaving the school suddenly turned around and ran back onto campus. The plaintiff further
alleged that to avoid being an obstacle in the way of the running crowd, he tured and ran with
the crowd but that while running he fell, injuring his hip and shoulder. The plaintiff ultimately
filed suit against School Board of Broward County, alleging that the School Board failed to
provide adequate security and crowd control at the basketball game.
Similar to Plaintiffs allegations against WPBHA in this case, the challenged act in
McCall was the security plan enacted to protect attendees at the basketball game. In answering
the four questions identified by the Florida Supreme Court in Commercial Carrier Corp., the 4"
DCA determined that school boards have a governmental policy and objective to give students a
well-rounded, free education, and that as a matter of policy and objective, the School Board
deemed it important to teach students the importance of sports, particularly in the context of a
public event. Id
The 4" DCA further determined that in furtherance of this policy and objection, the
Schooi Board obtained an inter-locai agreement wiih another governmental entity (law
enforcement) to implement the policy objective and meet its duty to protect the attendees, and
therefore the security plan was essential to the realization of the School Board's objective and
policy to teach students. The court also held that without the security plan, the course and
direction of the School Board’s policy and objection would not have occurred, as well as that
devising the security plan required the exercise of judgment and expertise by the principal,
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assistant principal, school resource officer (law enforcement), and a third-party security
specialist to determine the necessary number and distribution of security personnel Jd.
Finally, the court determined that the School Board clearly possessed the lawful authority
to devise and implement the security plan. As a result, the 4'" DCA determined that the four (4)
questions established in Commercial Carrier Corp. were clearly and unequivocally answered in
the affirmative, and therefore the School Board's security plan for the basketball game was a
planning level function protected by sovereign immunity. Jd.
In this case, WPBHA argues that a similar analysis to Plaintiff's allegations regarding
WPBHA’s security plans and procedures will clearly establish that Plaintiffs claim against
WPBHA is barred by sovereign immunity because the security plans and procedures constitute a
planning level function.
Looking at the first question established by the Supreme Court in Commercial Carrier
Corp., there is no dispute that WPBHA has a basic policy and objective to ensure the safety of
residents and visitors at a housing property owned, operated, and maintained by WPBHA.
Additionally, Plaintiff also does not dispute that WPBHA has this basic policy and objective, as
Piatnittt s Compiaint alleges that iA owed a duty to maintain ihe property in a reasonably
safe condition for use its residents, guests, invitees, and the general public, as well as that
criminal acts and attacks could be perpetrated on WPBHA’s residents, guests, invitees, and the
general public unless WPBHA took steps to provide proper security. See Plaintiff's Complaint.
Therefore, it is undisputed that there is a clear and unequivocal answer in the affirmative to the
first question from Commercial Carrier Corp.
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Moving to the second question, it is also clear that the enactment of a security plan and
security procedures is essential to the realization of WPBHA’s basic policy and objective to
ensure the safety of residents and visitors at a housing property owned, operated, and maintained
by WPBHA. Similar to the arguments above, Plaintiff does not dispute that the enactment of a
security plan and security procedures is essential to the realization of WPBHA’s basic policy and
objective, as Plaintiff's Complaint alleges that it was possible that criminal acts and attacks could
be perpetrated on WPBHA’s residents, guests, invitees, and the general public unless WPBHA
took steps to provide proper security at the property. /d. Further, the actions by WPBHA which
Plaintiff alleges constitute a breach of WPBHA’s duty all relate to security procedures and
security plans which are essential to the realization of WPBHA’s basic policy and objective to
ensure the safety of residents and visitors to the property. Therefore, it is also undisputed that
there is a clear and unequivocal answer in the affirmative to the second question from
Commercial Carrier Corp.
As it relates to the third question, WPBHA argues that its decisions regarding security
plans and security procedures clearly require the exercise of basic policy evaluation, judgment,
and expertise. in this case, WPBHA worked with the West Paim Beach Police Department in
order to determine potential security plans and procedures for both the property and the
surrounding area. Additionally, prior to the date of the subject incident, WPBHA made the
judgment decision to implement certain security plans and procedures, including having roving
security personnel who did not move on a fixed schedule, based on these discussions with the
West Palm Beach Police Department and other evaluations of the security needed for the
property.
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Finally, as discussed above, it is undisputed that the WPBHA is a government entity
which was established by the City of West Palm Beach and which operates within the State of
Florida. Therefore, the fourth question from Commercial Carrier Corp. can be clearly and
unequivocally answered in the affirmative. As a result, each of the four (4) questions from
Commercial Carrier Corp. regarding WBPHA’s actions can be clearly and unequivocally
answered in the affirmative, establishing that WBPHA’s actions regarding its security plans and
security procedures are a discretionary function which is subject to sovereign immunity.
Florida courts have a long-standing precedent of dismissing claims against governmental
entities relating to discretionary decisions to which sovereign immunity applies. Under Florida
law, governmental agencies have been immune from tort liability based upon actions that involve
its “discretionary” functions, such as development and planning. See Swofford v. Eslinger, 686
F.Supp.2d 1277 (M.D. Fia. 2005); See aiso Keiyea v. Siaie, 385 So.2d 1378, 1382 (Fia. 4tn DCA
1980) (finding a university’s number of security guards, parking attendants, and security gates,
as well as the extent of coordination with local law enforcement are discretionary or planning
decisions as it relates to whether a waiver of sovereign immunity applies); Lewis v City of St.
Petersburg, 260 F.3d 1260 (11th DCA 2001) (finding under Florida law the City's policy
decisions regarding what type of training to provide to its officers was discretionary because it
involved fundamental questions of policy and planning); Sanchez v. Miami-Dade Cty., 245 So.3d
Q22 QA1_0A9 (Ela 2rd NCA 201) (finding the eauntule danician ta allneate ite laur anfarcamant
JID, FTA Te ha. IG UA AV LOy Cus, Ue COunLy 9 GUCLoIUI LO GUOCGLY LL Law CLOUT CCURCIEL
resources to one area of the county over another is the kind of discretionary, planning, and policy
decision that is protected by sovereign immunity”).
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Accordingly Plaintiffs’ claims arising out of the WPBHA’s discretionary, planning-level
decisions are precluded under sovereign immunity, and dismissal of the lawsuit with prejudice is
therefore warranted.
WHEREFORE based upon the forgoing argument and authority, Defendant, WEST
PALM BEACH HOUSING AUTHORITY, respectfully requests that this Honorable Court enter
an order (1) dismissing with prejudice Count I of Plaintiff's Complaint against WPBHA because
Plaintiffs claim against WPBHA is barred by sovereign immunity, and (2) granting any other
relief the Court deems just and fair.
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CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 28"" day of July, 2021, a true and correct copy of
the above and foregoing document was filed with the Clerk of the above styled Court using the
Florida e-Filing Portal, which will deliver electronic copies of this filing to the designated e-mail
addresses for all counsel of record pursuant to Fla. R. Jud. Admin. 2.516. We also certify that the
foregoing document was served this day on all counsel of record identified on the attached
Service List via electronic mail.
Respectfully Submitted,
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
Counsel for Defendant, West Palm Beach
Housing Authority
100 SE Second Street, Suite 2100
Miami, Florida 33131
Telephone: 305-374-4400
Facsimile: 305-579-0261
By: /s/Alan Fiedel
ALAN FIEDEL
Florida Bar No.: 905526
Alan.Fiedel@wilsonelser.com
DAY TP AMT ANAT
UT BD. INBLOUIN
Florida Bar No. 124447
toy.nelson@wilsonelser.com
CESAR L. AVILA
Florida Bar No.: 1028572
Cesar.avila@wilsonelser.com
(SERVICE LIST ON FOLLOWING PAGE)
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SERVICE LIST
Counsel for Plaintiff
Marwan Porter, Esq.
THE PORTER LAW FIRM, LLC
5033 SE Federal Highway
Stuart, Florida 34997
Tel.: (772) 266-41569
Marwan@theporterfirm.com
Camille@theporterfirm.com
Broderick@theporterfirm.com
efile@theporterfirm.com
Counsel for City of West Palm Beach, Florida
Shawna G. Lamb, Esq.
Assistant City Attorney — Office of the City Attorney for the City of West Palm Beach
401 Clematis Street, Fifth Floor
West Palm Beach, FL 33401
Tel.: (561) 822-1375
Fax: (561) 822-1373
Sglamb@wpb.org
Kpatrick@wpb.org
Svegas-cantinella@wpb.org
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Preview
Filing # 131551145 E-Filed 07/28/2021 10:12:34 AM IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.:50-2021-CA-005196-XXXX-MB MARTIA HOLMAN-YOUNG, as Personal Representative of the Estate of MELVIN YOUNG, deceased; Plaintiff, v. WEST PALM BEACH HOUSING AUTHORITY; CITY OF WEST PALM BEACH; PALM BEACH CATINITY. TAUNT NAT OLOTIDITY FOND ANTV: CUUINL 1, JULUN VUG OGUURLE LT CUMIFAINT, and JOHN DOE MANAGEMENT COMPANY, Defendants. / DEFENDANT, WEST PALM BEACH HOUSING AUTHORITY’S. AMENDED MOTION TO DISMISS COUNT ONE OF PI. Defendant, WEST PALM BEACH HOUSING AUTHORITY (“WPBHA”), by and through the undersigned counsel, pursuant to Rule 1.140 of the Florida Rules of Civil Procedure and Florida Statute §768.28, hereby moves for entry of an Order by this Court dismissing with prejudice Count One (1) of Plaintiffs Complaint for Damages, on the basis that WPBHA has sovereign immunity from suit and no liability for the conduct alleged, and as grounds therefore states the following: 1. WPBHA is a governmental entity established by the City of West Palm Beach, Florida in 1938 pursuant to Florida Statute §421.04 and the enactment of the National Housing Act of 1937. 1 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET» SUITE 2100 * MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FACSIMILE (305) 579-0261 257035901v.1 CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FL EDI A7INGINNN 40.49.24 ANA Pty. PAL DLA VUUINE TT, PL, VUOL IE mDnueey, ULLIAN, Ureuieue! tu. 12.0% mitCASE NO.:50-2021-CA-005196-XXXX-MB 2. On May 25, 2019, the Decedent, Melvin Young (“Decedent”), was involved in a shooting at Robinson Villa Apartment Complex and subsequently died as a result of his injuries. 3. On March 8, 2021, the Honorable Maxine Cheesman of the Palm Beach County Probate Division issued a Letter of Administration appointing Plaintiff as the personal representative for Decedent’s estate. 4. On or about April 22, 2021, Plaintiff filed a Complaint for Damages (“Complaint”) which contained a total of five (5) claims of negligence, including one (1) count of negligence against WPBHA. 5. Specifically, Plaintiff's Complaint alleges that WPBHA owed a duty to the Decedent to maintain the Robinson Villa Apartment Complex in a reasonably safe condition, but breached this duty by failing to provide security at the property, failing to retain security personnel to patrol and monitor the property, and by failing to take additional security measures at the property. Jd. Plaintiffs Complaint further alleges that the Decedent’s death was a direct and proximate cause of WPBHA’s breach of duty regarding security measures and security procedures. Id. 6. However, since WPBHA ts a governmeniai eniity established by the City ot West Palm Beach, Florida and operating of a subdivision of the State of Florida, WPBHA is entitled to sovereign immunity for claims of tort liability. 7. Further, the actions of WPBHA which Plaintiff alleges were a breach of WPBHA’s duty to the Decedent are discretionary functions, which Florida courts have repeatedly held cannot be the subject of traditional tort liability against a government entity. 2 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB Therefore, Plaintiff's claim against the WPBHA is barred and should be dismissed with prejudice. MEMORANDUM OF LAW I. WPBHA is a governmental entity established by the City of West Palm Beach, and therefore is entitled to the protections of sovereign immunity. In Florida, the doctrine of sovereign immunity protects the sovereign from being sued without its consent. See Town of Gulf Stream v. Palm Beach County, 206 So.3d 721, 725 (Fla. 4 DCA 2016); City of Fort Lauderdale v. Israel, 178 So.3d 444, 446 (Fla. 4" DCA 2015). Further, under Florida law sovereign immunity is the rule, rather than the exception, and any waiver of sovereign immunity must be clear and unequivocal. See Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla. 1984); Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla. 1978). Additionally, while sovereign immunity may have originally been intended to apply only to the state, the Florida Supreme Court has held that “[iJmmunity was always deemed to have existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities.” See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015-16 (Fla. 1979). The Florida Supreme Court has also held that since 1968, municipalities, counties, and school districts have been in constitutional parity with one another. Cauley v. City of Jacksonville, 403 So.2d. 379, 385 (Fla. 1981). Further, in Cauley the Florida Supreme Court held that “sovereign inimunily SHOU apply Equally i all CONSUTONANY-auinOTiZed goVETTeALal cilities aia HOt 1S a disparate manner. 3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB In this case, the WPBHA is a government entity and is therefore entitled to same sovereign immunity protections and scrutiny as any other government entity. Specifically, Florida Statute §421.04(1) states that “[iJn each city, as herein defined, there is hereby created a public body corporate and politic to be known as the “Housing Authority” of the city; provided, however, that such authority shall not transact any business or exercise its powers hereunder until or unless the governing body of the city by proper resolution shall declare that there is need for an authority to function in such city.” As described above, the WPBHA was established by the City of West Palm Beach in 1938 following the enactment of the National Housing Act of 1937. In accordance with the National Housing Act of 1937 and Florida Statute §421.04, the City of West Palm Beach subsequently declared that there was a need for the WPBHA to function. As a result, similar to a city or county school board, the WPBHA constitutes a government entity for sovereign immunity purposes. Therefore, WPBHA is entitled to the sovereign immunity protections and scrutiny afforded to other governmental entities. II. Count I of Plaintiff’s Complaint against WPBHA alleges actions by WPBHA which are discretionary decisions, and which are therefore barred by the doctrine of sovereign immunity. In determining the applicability of sovereign immunity, Florida courts historically look at the functions and decisions of the governmental agency which give rise to the potential lawsuit. Specifically, Florida Courts have previously held that “decisions made at the operational level— decisions or actions implementing policy, planning, or judgmental governmental functions— generally do not enjoy sovereign immunity." See Commercial Carrier Corp. at 1021; Miami- Dade Cnty. v. Pozos, 242 So. 3d 1152, 1162 (Fla. 3d DCA 2017). 4 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB However, as referenced above, the Florida Supreme Court has previously held that “Tijmmunity was always deemed to have existed for legislative, quasi-legislative, judicial and quasi-judicial acts of municipalities.” See Commercial Carrier Corp. at 1015-16. In 2009, the Florida Supreme Court expanded on this previous ruling, holding that "[t]he separation-of- powers provision present in article II, section 3 of the Florida Constitution requires that ‘certain [quasi-legislative] policymaking, planning or judgmental governmental functions cannot be the subject of traditional tort liability." Wallace v. Dean, 3 So. 3d 1035, 1053 (Fla. 2009) (second alteration in original) (quoting Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1020 (Fla. 1979)). In order to determine whether the subject actions constitute a discretionary function which would subject the government entity to sovereign immunity or constitute an operational- level decision which would not enjoy sovereign immunity, Florida courts have determined there are certain preliminary questions that must be answered. Specifically, Florida courts have determined that these preliminary questions are: “(1) Does the challenged act, omission, or decision necessarily involve a basic governmeniai policy, program, or objective?; (2) 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?; (3) 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 5 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB (4) 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?” Commercial Carrier Corp. at 1019. If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved." /d. (quoting Evangelical United Brethren Church of Adna v. State, 67 Wn.2d 246, 407 P.2d 440, 445 (Wash. 1965)). In this case, the actions by WPBHA that Plaintiff alleges give rise to the subject lawsuit relate to WPBHA’s security policies and procedures for the property where the incident occurred. Specifically, Plaintiff's Complaint alleges that breached its duty to Decedent by failing to provide security at the property, failing to retain security personnel to patrol and monitor the property, and by failing to take additional security measures at the property. See Piainiyff's Complaint. Plaintiff's Complaint further alleges that the Decedent’s death was a direct and proximate cause of WPBHA’s breach of duty regarding security measures and security procedures. Id. WPBHA contends that the facts and circumstances surrounding the subject incident in this case, as well as the issues alleged in Plaintiff's Complaint are similar to those address by the Fourth District Court of Appeals (“4"* DCA”) in School Board of Broward County v. McCall, 6 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB 2021 Fla. App. LEXIS 7180, 46 Fla. L. Weekly D 1144, 2021 WL 1991683. In McCall, the plaintiff alleged that after having attended a high school basketball game a crowd of people leaving the school suddenly turned around and ran back onto campus. The plaintiff further alleged that to avoid being an obstacle in the way of the running crowd, he tured and ran with the crowd but that while running he fell, injuring his hip and shoulder. The plaintiff ultimately filed suit against School Board of Broward County, alleging that the School Board failed to provide adequate security and crowd control at the basketball game. Similar to Plaintiffs allegations against WPBHA in this case, the challenged act in McCall was the security plan enacted to protect attendees at the basketball game. In answering the four questions identified by the Florida Supreme Court in Commercial Carrier Corp., the 4" DCA determined that school boards have a governmental policy and objective to give students a well-rounded, free education, and that as a matter of policy and objective, the School Board deemed it important to teach students the importance of sports, particularly in the context of a public event. Id The 4" DCA further determined that in furtherance of this policy and objection, the Schooi Board obtained an inter-locai agreement wiih another governmental entity (law enforcement) to implement the policy objective and meet its duty to protect the attendees, and therefore the security plan was essential to the realization of the School Board's objective and policy to teach students. The court also held that without the security plan, the course and direction of the School Board’s policy and objection would not have occurred, as well as that devising the security plan required the exercise of judgment and expertise by the principal, 7 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB assistant principal, school resource officer (law enforcement), and a third-party security specialist to determine the necessary number and distribution of security personnel Jd. Finally, the court determined that the School Board clearly possessed the lawful authority to devise and implement the security plan. As a result, the 4'" DCA determined that the four (4) questions established in Commercial Carrier Corp. were clearly and unequivocally answered in the affirmative, and therefore the School Board's security plan for the basketball game was a planning level function protected by sovereign immunity. Jd. In this case, WPBHA argues that a similar analysis to Plaintiff's allegations regarding WPBHA’s security plans and procedures will clearly establish that Plaintiffs claim against WPBHA is barred by sovereign immunity because the security plans and procedures constitute a planning level function. Looking at the first question established by the Supreme Court in Commercial Carrier Corp., there is no dispute that WPBHA has a basic policy and objective to ensure the safety of residents and visitors at a housing property owned, operated, and maintained by WPBHA. Additionally, Plaintiff also does not dispute that WPBHA has this basic policy and objective, as Piatnittt s Compiaint alleges that iA owed a duty to maintain ihe property in a reasonably safe condition for use its residents, guests, invitees, and the general public, as well as that criminal acts and attacks could be perpetrated on WPBHA’s residents, guests, invitees, and the general public unless WPBHA took steps to provide proper security. See Plaintiff's Complaint. Therefore, it is undisputed that there is a clear and unequivocal answer in the affirmative to the first question from Commercial Carrier Corp. 8 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB Moving to the second question, it is also clear that the enactment of a security plan and security procedures is essential to the realization of WPBHA’s basic policy and objective to ensure the safety of residents and visitors at a housing property owned, operated, and maintained by WPBHA. Similar to the arguments above, Plaintiff does not dispute that the enactment of a security plan and security procedures is essential to the realization of WPBHA’s basic policy and objective, as Plaintiff's Complaint alleges that it was possible that criminal acts and attacks could be perpetrated on WPBHA’s residents, guests, invitees, and the general public unless WPBHA took steps to provide proper security at the property. /d. Further, the actions by WPBHA which Plaintiff alleges constitute a breach of WPBHA’s duty all relate to security procedures and security plans which are essential to the realization of WPBHA’s basic policy and objective to ensure the safety of residents and visitors to the property. Therefore, it is also undisputed that there is a clear and unequivocal answer in the affirmative to the second question from Commercial Carrier Corp. As it relates to the third question, WPBHA argues that its decisions regarding security plans and security procedures clearly require the exercise of basic policy evaluation, judgment, and expertise. in this case, WPBHA worked with the West Paim Beach Police Department in order to determine potential security plans and procedures for both the property and the surrounding area. Additionally, prior to the date of the subject incident, WPBHA made the judgment decision to implement certain security plans and procedures, including having roving security personnel who did not move on a fixed schedule, based on these discussions with the West Palm Beach Police Department and other evaluations of the security needed for the property. 9 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB Finally, as discussed above, it is undisputed that the WPBHA is a government entity which was established by the City of West Palm Beach and which operates within the State of Florida. Therefore, the fourth question from Commercial Carrier Corp. can be clearly and unequivocally answered in the affirmative. As a result, each of the four (4) questions from Commercial Carrier Corp. regarding WBPHA’s actions can be clearly and unequivocally answered in the affirmative, establishing that WBPHA’s actions regarding its security plans and security procedures are a discretionary function which is subject to sovereign immunity. Florida courts have a long-standing precedent of dismissing claims against governmental entities relating to discretionary decisions to which sovereign immunity applies. Under Florida law, governmental agencies have been immune from tort liability based upon actions that involve its “discretionary” functions, such as development and planning. See Swofford v. Eslinger, 686 F.Supp.2d 1277 (M.D. Fia. 2005); See aiso Keiyea v. Siaie, 385 So.2d 1378, 1382 (Fia. 4tn DCA 1980) (finding a university’s number of security guards, parking attendants, and security gates, as well as the extent of coordination with local law enforcement are discretionary or planning decisions as it relates to whether a waiver of sovereign immunity applies); Lewis v City of St. Petersburg, 260 F.3d 1260 (11th DCA 2001) (finding under Florida law the City's policy decisions regarding what type of training to provide to its officers was discretionary because it involved fundamental questions of policy and planning); Sanchez v. Miami-Dade Cty., 245 So.3d Q22 QA1_0A9 (Ela 2rd NCA 201) (finding the eauntule danician ta allneate ite laur anfarcamant JID, FTA Te ha. IG UA AV LOy Cus, Ue COunLy 9 GUCLoIUI LO GUOCGLY LL Law CLOUT CCURCIEL resources to one area of the county over another is the kind of discretionary, planning, and policy decision that is protected by sovereign immunity”). 10 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB Accordingly Plaintiffs’ claims arising out of the WPBHA’s discretionary, planning-level decisions are precluded under sovereign immunity, and dismissal of the lawsuit with prejudice is therefore warranted. WHEREFORE based upon the forgoing argument and authority, Defendant, WEST PALM BEACH HOUSING AUTHORITY, respectfully requests that this Honorable Court enter an order (1) dismissing with prejudice Count I of Plaintiff's Complaint against WPBHA because Plaintiffs claim against WPBHA is barred by sovereign immunity, and (2) granting any other relief the Court deems just and fair. 11 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 28"" day of July, 2021, a true and correct copy of the above and foregoing document was filed with the Clerk of the above styled Court using the Florida e-Filing Portal, which will deliver electronic copies of this filing to the designated e-mail addresses for all counsel of record pursuant to Fla. R. Jud. Admin. 2.516. We also certify that the foregoing document was served this day on all counsel of record identified on the attached Service List via electronic mail. Respectfully Submitted, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Counsel for Defendant, West Palm Beach Housing Authority 100 SE Second Street, Suite 2100 Miami, Florida 33131 Telephone: 305-374-4400 Facsimile: 305-579-0261 By: /s/Alan Fiedel ALAN FIEDEL Florida Bar No.: 905526 Alan.Fiedel@wilsonelser.com DAY TP AMT ANAT UT BD. INBLOUIN Florida Bar No. 124447 toy.nelson@wilsonelser.com CESAR L. AVILA Florida Bar No.: 1028572 Cesar.avila@wilsonelser.com (SERVICE LIST ON FOLLOWING PAGE) 12 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET» SUITE 2100 + MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsIMLE (305)579-0261 257035901v.1CASE NO.:50-2021-CA-005196-XXXX-MB SERVICE LIST Counsel for Plaintiff Marwan Porter, Esq. THE PORTER LAW FIRM, LLC 5033 SE Federal Highway Stuart, Florida 34997 Tel.: (772) 266-41569 Marwan@theporterfirm.com Camille@theporterfirm.com Broderick@theporterfirm.com efile@theporterfirm.com Counsel for City of West Palm Beach, Florida Shawna G. Lamb, Esq. Assistant City Attorney — Office of the City Attorney for the City of West Palm Beach 401 Clematis Street, Fifth Floor West Palm Beach, FL 33401 Tel.: (561) 822-1375 Fax: (561) 822-1373 Sglamb@wpb.org Kpatrick@wpb.org Svegas-cantinella@wpb.org 13 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 * MMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FacsmMLe (305) 579-0261 257035901v.1