Lemay v. Kondrk12/5/2003
ords "willful," "wanton," or "reckless," are customarily applied; and sometimes, in a single sentence, all three. Although efforts have been made to distinguishthem, inpractice suchdistinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit. They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. . . . They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. . . .
The usual meaning assigned to "willful," "wanton," or "reckless," according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. The "willful" requirement, therefore,breaks down and receives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.
The result is that "willful," "wanton," or "reckless" conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear, however, that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention . . . except in those cases where a reasonable personin the actor's place would have been aware of great danger, and proceeding in the face of it is so entirely unreasonable as to amount to aggravated negligence.
W. Page Keeton, et al., Prosser & Keeton Handbook of the Law of Torts § 34, at 212-14 (5th ed. 1984) (internal footnotes omitted). In the final analysis, we must weigh the factual allegations of the complaint against Kondrk's qualified immunity from suit and liability. A court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim. Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989). We believe that individual claims against state actors should be the exception rather than the rule, particularly given the policy considerations in favor of immunizing state actors, although not necessarily state agencies.
Perhaps with the clarity of hindsight, Kondrk's decision to order Ault off the premises was an error in judgment, but to me, it seems to fall far short of the degree of wanton and willful misconduct necessary to overcome Kondrk's qualified immunity from suitand liability. I would affirm the trial court's order.
Page 1 2 3 4 Florida DUI Attorneys
DUI Lawyers
|