IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY FLORIDA. CIVIL ACTION NATHAN LEE, Individually and as I Personal Representative of the I Estate of Denise Amber Lee, Case Plaintiff v. BILL CAMERON, as Sheriff of Charlotte County, Defendant I ORDER DENYING MOTION Fon SUMMARY JUDGMENT This cause came on to be heard on Friday, June 8, 2012 on the Defendants Motion for Summary Judgment under Rule 1.510(c) Fla. Rules Civ. Pro. (2009), filed on May 11, 2012. The essential facts of the case are undisputed. In his capacity as Sheriff of Charlotte County, the Defendant is responsible for the operation of a 011 call and dispatch center. The Plaintiff is the surviving spouse of Denise Amber Lee, who was tragically murdered on January 17, 2008. At the crux of the Plaintiffs two (2) count complaint for the wrongful death of Denise Amber Lee under ?768.16 et. seq. and ?46.021 Fla. Stat. (2009) is the alleged rnishandling of a crucial 911 call from a third party caller to the Charlotte County Sheriffs Office? The Plaintiff asserts that had the I Amended as to a scrivenefs error on Page 2/Paragraph 2 (Changing "Plaintiffs" same argument to "Defendants" same argument) and Page 3lParagraph 1 (deleting word "to" in line four). 2 See Paragraph 16 of Plaintiffs Complaint. 911 call been properly received and processed, the information communicated from the caller to the Defendant could have led law enforcement directly to Mrs. Lee and her abductor. In support his Motion for Summary Judgment, the Defendant argues that there is no statutory or common law duty of care to relay a 911 call for emergency services? Additionally, the Defendant asserts that any alleged failure to properly dispatch information received from a third party 911 caller in the midst of an ongoing emergency response to a missing person4 would fall under a function of government for which there is no duty of care, absent a special relationship between the Sheriff's Office and Mrs. Lee. 5 The Plaintiffs argument in opposition to the Motion for Summary Judgment relies in part, on the fact that the Defendant's same argument in support of a summary judgment was previously addressed (and denied) in a Motion to Dismiss heard before Judge Lee Ann Schreiber in 2010. In his Motion to Dismiss, the Defendant similarly argued that the Charlotte County Sheriff's Office had no duty of care with respect to the receipt and processing of the 911 call in question, because the operation of a 911 call center is a duty owed to the public at large and does not give rise to liability to any specific individual. 3 See Paragraph D, Page 14 of Defendants Motion for Summary Judgment. 4 See Paragraph 14 of Plaintiffs Complaint that asserts that the Defendant initiated a search for Mrs. Lee at 3:30pm, approximately 3 hours prior to the time the 9'i'l call in question was received. 5 The Defendant asserts that his handling ofthe 914 call should be considered a Category li government activity for the enforcement of laws and protection of Public Safety; a duty to the public at large, compared to a specific person or entity. Trianon Park Condominium Association v. City of Hialeah 468 S0.2d 912 (Fla. 1985). As noted by the Plaintiff in their memorandum of law, Florida courts have consistently denied motions for summary judgment when the sufficiency of the same allegations has sun/ived a motion to dismiss. See, eg. Bowman v. Davies 586 So.2d 1332, 1334 (Fla. is* DCA 1991). This Court finds that no additional facts have been alleged by the Defendant that would support this court granting the summary judgment. Additionally, the Plaintiff suggests that the Defendant's Motion for Summary Judgment should be denied because the 911 call in question was in the context of a specific situation involving the missing person status of Mrs. Lee and therefore a specific act which would subject the Defendant to liability as an operational, Category IV governmental activity for which sovereign immunity would not bar an action for alleged breach of duty. lrjay 488 So.2d 912 (Ffa. 1985). Genuine issues of material fact regarding whether the 911 call (in the context of an ongoing search initiated by the Defendant), was negligently processed, or whether the Defendant is immune from tort liability are inextricably tied to the underlying facts of this case. As such a dispute exists and the Defendants Motion for Summary Judgment must be denied. See: Miami-Dade County v. Rodriguez 87 So.3d 1213 (Fla. 3rd DCA 2011); Gomes v. Stevens 548 So.2d 1183 (Fla. DCA 1989) WHEREFORE, it is; ORDERED, ADJUDGED AND DECREED that the Defendants Motion for Summary Judgment is This matter remains set for a date certain, two- week jury trial starting July 18, 2012. CHRISTINE GREIDER CIRCUIT COURT JUDGE I CERTIFICATE OF SERVICE HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided electronically and by regular U.S. Mail on this the 11"' day of June, 2012 to Bruce Jolly, Esquire, Purdy, Jolly, Guilfreda 81 2455 East Sunrise Boulevard, Suite 1216, Fort Lauderdale, Fl. 33304 and Patrick Boyle, Esq. And Jessie Beeber, Esquire, and Warren R. Ross, c/o Warren R. Ross, Esquire, Wotitzky, Wotitzky, Ross McKinley, P.A. 223 Taylor Street, Punta Gorda, Fl. 33950 on this the 11"' day of June, 2012. BY: Judicial Assistant