Florida Department of Children and Families v. Gainey, Brown
CourtDistrict Court of Appeal of Florida
Date FiledOctober 7, 2026
Docket1D2025-2106
StatusPublished
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Full Opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2025-2106
_____________________________
FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES,
Appellant,
v.
JOHN L. GAINEY, as Personal
Representative of the Estate of
Nazariah Brown; WORLD WIDE
WEBB, LLC; RAPHEAL WEBB,
individually; LATORIA
SINGLETON, individually;
GABRIEL WOODS, individually;
CRANDALL MEDICAL
CONSULTING, LLC; and
BRAANDON DAVIS, individually,
Appellees.
_____________________________
On appeal from the Circuit Court for Alachua County.
Gloria R. Walker, Judge.
October 7, 2026
BILBREY, J.
The Florida Department of Children and Families appeals the
nonfinal order denying its motion for summary judgment. The
Department asserted that it was entitled to judgment as a matter
of law since sovereign immunity was not waived for the allegations
of negligence in the third amended complaint. Because the trial
court applied the incorrect law to deny summary judgment, the
order on appeal is reversed with instructions that summary final
judgment be entered for the Department. 1
“Because of the separation of powers principles that animate
the doctrine, and because it provides both immunity from suit and
immunity from liability, the Florida Supreme Court instructs that
‘entitlement to sovereign immunity should be established as early
in the litigation as possible.’” Fla. Virtual Sch. v. Calfee, 425 So. 3d
78, 82 (Fla. 6th DCA 2025) (quoting Fla. Highway Patrol v.
Jackson, 288 So. 3d 1179, 1185 (Fla. 2020)). An order denying a
motion for summary judgment based on sovereign immunity is
reviewed de novo. Id.; see also Nocco v. Wilcox, 414 So. 3d 302, 305
(Fla. 2d DCA 2025). “[C]ertain ‘discretionary’ governmental
functions remain immune from tort liability. . . . Identifying these
functions is done primarily by distinguishing, through a case-by-
case analysis, the ‘planning’ and ‘operational’ levels of decision-
making by governmental agencies.” Dep’t of Health & Rehab.
Servs. v. B.J.M., 656 So. 2d 906, 911 (Fla. 1995) (footnotes omitted)
(quoting Com. Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010,
1022 (Fla. 1979)).
Nazariah Brown was a young adult man with complex
medical needs. He lived with his mother and other family
members until August 2022 when the family lost the lease to their
home. The Department became involved with Mr. Brown in May
2022 at his mother’s request since he needed services and his
mother knew their housing situation was precarious. Over the
several months between May and August 2022, efforts of the
mother and the Department to locate suitable housing were
unsuccessful. The impending loss of the family’s leased residence
caused an emergency and, to keep Mr. Brown from becoming
homeless, Department personnel placed Mr. Brown in the only
facility they could find that agreed to accept him. A few days after
1 The nonfinal order on appeal is reviewable under rule
9.130(a)(3)(F)(iii), Florida Rules of Civil Procedure, because it
denies a motion that “asserts entitlement to sovereign immunity.”
2
this placement, the Agency for Persons with Disabilities assumed
responsibility for Mr. Brown’s services.
While Mr. Brown remained at the facility under the Agency’s
placement, the Department received two central abuse hotline
reports. See § 415.103, Fla. Stat. (2022) (establishing central
abuse hotline for reporting abuse, neglect, or exploitation of a
vulnerable adult). The reports were investigated by Department
personnel in the Department’s Adult Protective Services (APS)
office, and both cases were eventually closed as “unsubstantiated.”
In his four-count third amended complaint, John L. Gainey,
as personal representative of the estate of Mr. Brown, alleged that
the Department was liable for monetary damages caused by the
negligence of its employees who acted within the scope of their
employment. 2 In count I, Gainey alleged three bases for the
Department’s negligence. His first allegation was negligence by
failing to train and supervise its APS unit staff, resulting in the
improper protective supervision of Mr. Brown. See
§ 415.1051(4)(a), Fla. Stat. (allowing the Department to provide
protective services with “consent from the caregiver or guardian”).
His second allegation was that the Department was liable for
failing to supervise APS staff who negligently placed Mr. Brown in
2 The initial complaint was brought by Gainey as Mr. Brown’s
guardian. During the litigation, Mr. Brown died and Gainey was
substituted as the personal representative of his estate. Gainey
alleged both a survival action to the extent that the negligence did
not cause Mr. Brown’s death and a wrongful death if it did. Counts
II, III, and IV of the third amended complaint were dismissed with
prejudice after the parties stipulated that the three named
employees were immune from individual liability per section
768.28(9), Florida Statutes. Whether sovereign immunity applies
to the allegations in count I against the Department is the only
issue before us. Because we only have jurisdiction in this nonfinal
appeal to address the sovereign immunity issue, we do not consider
the Department’s argument before the trial court that the third
amended complaint improperly combined multiple causes of action
into one count. See Smith v. Lee, 51 Fla. L. Weekly D1009, D1010,
2026 WL 1407947, *2 (Fla. 1st DCA May 20, 2026).
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a facility that did not meet his complex medical needs. Gainey’s
third allegation in count I was negligent investigation and closure
of reports of injury to Mr. Brown.
On appeal, Gainey concedes that his negligent training and
negligent supervision claims against the Department are barred
by sovereign immunity. We accept this concession. See Nocco, 414
So. 3d at 305 (citations omitted) (holding that sovereign immunity
bars negligent training claims that are based on what subjects to
train and how to train those subjects since those issues entail the
exercise of discretion); Cook ex rel. Est. of Tessier v. Sheriff of
Monroe Cnty., 402 F.3d 1092, 1117–19 (11th Cir. 2005) (holding
that claims targeting the organizational structure and regulatory
oversight of a government agency inappropriately require the
judiciary to review policy decisions constitutionally reserved for
the political branches). Thus, Gainey has abandoned the negligent
training and supervision claims against the Department for
purposes of further proceedings.
The remaining allegation against the Department in count I
of the third amended complaint was a claim of negligence by the
Department due to APS staff members’ investigation and
premature closure of the two hotline reports received in September
2022 and October 2022. These allegations claimed violation of the
Department’s statutory and common law duties “to properly
investigate and to take appropriate action to protect” Mr. Brown.
Specifically, the third amended complaint alleged, “At all times
material, Defendant DCF also had the common law and statutory
obligations to respond to and investigate calls of abuse or neglect
of vulnerable adults, and to make sure that it and its personnel
took action to remove vulnerable adults from situations where
their needs and rights were not being provided for.” As explained
below, these allegations are also subject to sovereign immunity.
Following the summary judgment hearing held in July 2025,
the trial court found “there are too many disputed issues of fact
involving the issue of negligence” to enter summary judgment.
The court listed many disputed facts about the Department’s
provision of services to Mr. Brown, beginning in May 2022 and
culminating in his placement on an “emergency” basis in August
2022. The court also listed the disputed issues of fact about the
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two hotline calls received in September and October 2022, and APS
staff members’ handling and ultimate closure of the cases.
The trial court concluded that “based on the record evidence,
sovereign immunity does not apply.” In its oral pronouncement of
its ruling, the court stated that “given how many facts are in
dispute, it’s unclear . . . whether or not sovereign immunity would
apply because it’s unclear . . . whether or not, based on the facts as
alleged, DCF did anything wrong.” The court made no ruling on
whether the Department’s actions as alleged in the third amended
complaint were planning or operational functions. Additionally,
the court made no findings that the Department’s sovereign
immunity was waived under section 768.28, Florida Statues, by
any provision in chapter 415, Florida Statutes, or any other
legislative enactment.
The trial court misapplied the law when it denied summary
judgment by treating sovereign immunity as an issue of fact.
Sovereign immunity is a threshold legal question for the court, not
a fact question for the jury. Fla. Dep’t of Corr. v. Campbell, 417
So. 3d 479 (Fla. 1st DCA 2025) (reversing denial of motion to
dismiss complaint; classification and assignment of prisoners
within prison system are discretionary, planning-level decisions to
which waiver of sovereign immunity does not apply). “Sovereign
immunity is the rule, not the exception, and a waiver of sovereign
immunity must be unequivocal and will not be found by inference.”
Univ. of Fla. Bd. of Trs. v. Browning, 387 So. 3d 371, 376 (Fla. 1st
DCA 2024).
Immunity, and the limited waiver of sovereign immunity
under section 768.28, Florida Statutes, are threshold bars to suit
to be determined independently from “outstanding disputes about
the existence of a duty of care.” Fla. Highway Patrol v. Jackson,
288 So. 3d 1179, 1185 (Fla. 2020). It is the nature of the conduct
challenged, not proof of the facts alleged, that determines whether
immunity is waived. Trianon Park Condo. Ass’n, Inc. v. City of
Hialeah, 468 So. 2d 912, 918 (Fla. 1985).
“The immunity of the State of Florida and its agencies from
liability for claims arising under Florida law or common law is
absolute absent a clear, specific, and unequivocal waiver
by legislative enactment.” Dep’t Highway Safety & Motor Vehicles
5
v. Hightower, 306 So. 3d 1193, 1199–1200 (Fla. 1st DCA 2020)
(quoting State, Dep’t of Elder Affs. v. Caldwell, 199 So. 3d 1107,
1109 (Fla. 1st DCA 2016)). As we held in Caldwell, sovereign
immunity is not waived under section 768.28 for “statutory
claims.” 199 So. 3d at 1110. To the extent that the claims of
negligence against the Department depends on its allegations of
failure to properly handle the hotline calls under chapter 415,
Florida Statutes, a waiver by section 768.28 cannot be assumed or
inferred. See Trianon Park Condo. Ass’n, 468 So. 2d at 919–920
(holding that enforcement of laws and conducting investigations of
alleged violations of the law are discretionary functions).
As for the common law allegations involving negligent
investigation by the Department, sovereign immunity also applies
to those allegations. “A plaintiff suing a governmental entity in
tort must, therefore, allege and prove that the governmental entity
owed a duty of care to the plaintiff individually rather than to the
public in general.” Miami-Dade Cnty. v. Fente, 949 So. 2d 1101,
1103 (Fla. 3d DCA 2007). “[I]n the absence of a special relationship
between the individual and the governmental entity, a common
law duty is not owed to the victim of a criminal offense, even
though the offense might have been prevented through reasonable
law enforcement.” Sams v. Oelrich, 717 So. 2d 1044, 1047 (Fla. 1st
DCA 1998).
Furthermore, to the extent that the third amended complaint
alleged that by selecting the placement for Mr. Brown, the
Department had a special relationship with him and owed him a
duty beyond that owed to the general public, such placement
decisions are also subject to sovereign immunity. See Campbell,
417 So. 3d at 483 (holding that the classification and assignment
of persons in the custody of the State were “discretionary,
planning-level decisions”).
As the Florida Supreme Court has stated:
HRS [the Department’s predecessor agency] is vested
with broad discretion in exercising its placement
authority. For this reason, we believe the placement
function constituted a “discretionary planning or
6
judgmental function” entitled to immunity even if
considered as a category IV function.
We also believe the same immunity accorded to
placement decisions applies to the discretionary decisions
made by HRS in allocating services to dependents and
delinquents under the statutory scheme mandated by the
legislature. This scheme provides the same broad
discretion for allocating services as for placement
decisions.
B.J.M., 656 So. 2d at 913 (citation omitted). 3
Because the trial court applied an incorrect standard to
conclude that “sovereign immunity does not apply,” the order
denying the Department’s motion for summary judgment is
reversed. Sovereign immunity applies to the claims against the
Department and summary final judgment must be entered for the
Department.
REVERSED with instructions.
M.K. THOMAS and LONG, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Kathryn L. Ender, Ravika R. Marcadis, and Janice Lopez of
Dinsmore & Shohl LLP, Miami, for Appellant.
3 A category IV function is a “governmental function or
activity” involving the provision of “professional, educational, and
general services for the health and welfare of the citizens.” B.J.M.,
656 So. 2d at 911 (citing Trianon Park Condo. Ass’n, 468 So. 2d at
919–21).
7
David A. Paul, Christine V. Zharvo, and Debora S. Antisdel of Paul
Trial Group, Winter Park; Alexis S. Gay and Valentina V.
Villalobos of Elite Child Advocacy, PLLC, Tampa; Karen Gievers,
Tallahassee, for Appellee John L. Gainey.
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