The Court recently considered whether a person who falsely reports criminal conduct to law enforcement is immune from civil liability for the false report. The Court concluded that while a qualified privilege shields a person making a false report if that report is the result of simple negligence, if the false report stems from gross negligence or other punitive conduct, no privilege or immunity from civil liability applies. Valladares v. Bank of America et al. (SC 14-1629).

Valladares suffered serious physical and mental trauma at the hands of police after a Bank of America employee mistakenly informed police that Valladares was a bank robber. The basis for the mistake was that Valladares was wearing a Miami Heat cap and sunglasses, two accessories reported on a description of a suspected bank robber sent to Bank of America employees previously that day. Valladares did not make any demand, present any note, or otherwise make any indication that he was attempting to rob the bank during his entire time there, and instead was admittedly polite and only requested to cash a check he had brought in. Bank employees made no attempt to determine whether Valladares was in fact a bank robber or attempting to accomplish anything other than his stated purpose.

Valladares filed suit, and after trial a jury awarded him compensatory and punitive damages. Bank of America appealed, and the Third District Court of Appeal overturned the verdict on the basis that false reporting could not be a basis for liability unless the reporting was done with malice. Bank of America Corp. v. Valladares, 141 So. 3d 714 (Fla. 2014). The DCA relied on Pokorny v. First Federal Savings & Loan Ass’n of Largo, where the Supreme Court held that “[a] plaintiff contending that he had been improperly arrested as the result of negligence in swearing out a warrant must bear the burden of establishing malice.” 382 So. 2d 678, 683 (Fla. 1980).

The Supreme Court distinguished Pokorny from the Valladares case and noted that the relevant claim raised here was one for negligent reporting, not false arrest or malicious prosecution. The Court clarified that the qualified privilege for mistaken reporting is limited to reports made in good faith and where the mistake is the result of simple negligence. The Court noted that the privilege is warranted by strong public policy concerns of encouraging citizen reporting of perceived criminal activity. However, as there is a range of culpability between simple negligence and malice, the “standard necessary [to establish liability for false reporting should be] one that maintains a balance between protecting individuals from abusive accusations to the police, and encouraging citizens to report suspected criminal activity.” Opinion at 21. The Court therefore held “that a cause of action for negligent reporting arises when there is incorrect reporting plus conduct on the part of the reporting party that rises to the level of punitive conduct.” Punitive conduct, in turn, includes gross negligence, or conduct of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects…” citing Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999).