David L. Ross v. City of Jacksonville , 274 So. 3d 1180 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-2994
_____________________________
DAVID L. ROSS,
Appellant,
v.
CITY OF JACKSONVILLE,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Kevin Blazs, Judge.
June 12, 2019
B.L. THOMAS, C.J.
David Ross appeals the trial court’s order which granted
summary judgment to the City of Jacksonville. The order ruled
that the city was not liable for injuries sustained by Appellant,
whose vehicle was struck by a fleeing suspect eluding law-
enforcement officer. The action arose when the suspect, a
fourteen-year-old driver, sped out of a driveway, momentarily
losing control, and drove directly toward several pedestrians who
barely managed to avoid the car and escape serious injury.
Appellant sued the Jacksonville Sheriff’s Office alleging that the
officers’ overly aggressive pursuit breached their duty to conduct
law enforcement activities in a manner that does not needlessly
endanger Duval County citizens.
Appellee filed a motion for summary judgment, arguing that
the city was immune from suit under section 768.28(9)(d)(1),
Florida Statutes. That statute provides that the employing agency
of a law enforcement officer is not liable for injuries caused by a
person being pursued by law enforcement, if 1) the pursuing
officers did not act in a manner “which is so reckless or wanting in
care as to constitute a disregard of human life, human rights,
safety, or the property of another”; 2) the pursuing officers who
initiated pursuit reasonably believed the person fleeing had
committed a forcible felony as defined in section 776.08, Florida
Statutes; and 3) the pursuit was conducted in accord with a written
agency policy that “contain[ed] specific procedures concerning the
proper method to initiate and terminate high-speed pursuit (and
the) law enforcement officer ...received instructional training” on
the policy.
Appellee attached to the motion an affidavit from the officer
who initiated the pursuit, in which the officer stated that he saw a
vehicle speed out of a driveway, causing the front end of the vehicle
to spin around and causing three or four pedestrians in front of the
driveway to jump to avoid being hit by the vehicle. Appellee also
attached an operational order describing the Jacksonville Sheriff’s
policy for vehicle pursuits. In addition, the City provided an
affidavit from another sheriff’s officer stating that after reviewing
the pursuing officer’s report, he determined that the pursuit was
conducted in compliance with the Sheriff’s Office’s standards.
At the summary judgment hearing, Appellee described the
route of the pursuit based on the vehicle-pursuit report. After the
initial officer began pursuit, the suspect continued driving down
side streets, passing other pedestrians who also jumped out of the
way, before the first officer lost sight of the driver and radioed
other officers to look for the fleeing car. The suspect and law
enforcement reached speeds of eighty miles per hour. The car
made a U-turn and drove on pedestrian sidewalks, hit a vehicle
and continued driving before another officer threw a “stop stick” to
puncture the tires of the fleeing car. The fleeing car hit Appellee’s
car, and the driver of the fleeing car got out and ran before being
apprehended by the officer who initiated the pursuit. The pursuit
covered a total of 5.5 miles. Appellee noted that the officer
indicated in the report that he initiated pursuit because the driver
committed “Felony, fleeing, eluding and reckless driving.”
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The trial court found that the evidence viewed in the light
most favorable to Appellant did not establish that the pursuit was
conducted in a manner so reckless and wanton as to constitute a
disregard for human life, “[g]iven the limited distance, brief
duration, and the exercise of judgment by [the initial officer] . . . in
his decision to terminate and then reinitiate pursuit in cooperation
with other officers.” The court also found that the initial officer
pursued the driver because he saw the car almost strike
pedestrians, and thus the driver witnessed an aggravated assault,
a forcible felony. The court found that the Jacksonville Sheriff’s
Office’s vehicle-pursuit policies contained detailed provisions on
initiating and terminating pursuit, and there was no factual
dispute regarding these policies. The court ruled that Appellee
was not liable for Appellant’s injury under section 768.28(9)(d),
Florida Statutes, and because there were no genuine issue of
material disputed fact, the court granted Appellee’s motion for
summary judgment.
Analysis
“Summary judgment is proper if there is no genuine issue of
material fact and if the moving party is entitled to a judgment as
a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms West
Condominium Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999)). Thus, our
standard of review is de novo. Id.
Appellant first asserts that a material factual dispute existed
as to whether the initial officer acted so recklessly or in a manner
“wanting in care as to constitute a disregard of human life, human
rights, safety or the property of another.” Section 768.28(9) (d)(1),
Florida Statutes. Appellee argues that the undisputed facts do not
establish that the pursuit was so reckless as to constitute a
disregard for human life as so described in the controlling statute.
The question of whether an officer acted with disregard for
human rights may be answered summarily as a question of law, or
decided by a trier of fact, depending on the facts presented. See
McGhee v. Volusia Cty., 679 So. 2d 729, 733 n.7 (Fla. 1996) (holding
that “the question must be put to the fact-finder whether [a
sheriff’s deputy] acted in bad faith, with malicious purpose, or in a
manner exhibiting wanton or willful disregard of human rights,
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safety, or property” but noting “that this holding is based on the
questions presented by the facts at hand. There may be cases in
which summary dismissal would be proper based on different
facts”).
The current version of section 768.28(9)(d) was enacted in
2006. Ch. 2006-234, Laws of Fla. No appellate court has
interpreted that section. Section 768.22(9)(a), a similar provision,
grants immunity from liability and suit to individual state officers,
agents, and employees acting within the scope of employment if,
inter alia, they do not act “in a manner exhibiting wanton and
willful disregard of human rights, safety, or property.” While this
language is slightly different from the language of subsection
768.28(9)(d)(1), both subsections provide immunity on similar
bases, that is, whether the state officer or employee engaged in
conduct that was even more egregious than gross negligence.
Elliott v. Dugger, 579 So. 2d 827, 830 (Fla. 1st DCA 1991). Thus,
cases interpreting section 768.28(9)(a) are informative and
instructive when interpreting subsection (9)(d)(1).
In Dugger, this court held that acts of gross negligence do not
rise to the level of recklessness to violate section 768.28(9), as
“section 768.28(9)(a) grants immunity to a state employee who
merely acts with gross negligence and not the greater degree of
culpability set forth in the statute.” 579 So. 2d at 830. The lesser
culpability of gross negligence is defined as “that course of conduct
which a reasonable and prudent [person] would know would
probably and most likely result in injury to persons or property.”
Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959).
Here, the undisputed facts viewed in the light most favorable
to Appellant do not establish that the initial officer’s actions were
so reckless as to constitute disregard for human life, rights, safety,
or property. Appellant asserts that because the officer drove
eighty miles per hour down roads that are typically crowded, the
officer acted recklessly. But this argument, if accepted, would
render all high-speed chases on public roads by law enforcement
reckless, and this proposition was rejected in City of Miami v.
Horne, 198 So. 2d 10, 12 (Fla. 1967) (rejecting the argument that
an officer engaged in “reckless conduct simply because he pursued
the offender, on the theory that mere pursuit creates a highway
danger,” and holding that a ticketing officer chasing a fleeing
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motorist at ninety-five miles per hour in a thirty-mile-per-hour
zone was not negligent, rejecting argument that officers must
pursue offenders “at lawful rates of speed”).
While it is correct that the high-speed chase was found to
deprive officers of immunity in City of Pinellas Park v. Brown, 604
So. 2d 1222 (Fla. 1992), that pursuit covered five times the
distance as in the present case, reached speeds of 120 miles per
hour and involved officers who disregarded multiple traffic signals
and an order to terminate pursuit. The fleeing suspect in that case
hit the deceased victims’ car at 90-miles-per-hour, killing two
people. More significantly, the supreme court in Pinellas Park
created a common-law duty of care as a matter of public policy that
imposed liability for negligence, a much lower legal threshold than
the legislature has since required in section 768.28(9)(d)(1),
Florida Statutes, which provides immunity unless officers engaged
in conduct that demonstrated recklessness and was so wanting in
care as to show a “disregard for human life, rights and property.”
Thus, the legal duty the court created in Pinellas Park as public
policy was far broader and more inclusive than the duty of care
enacted by the legislature in granting sovereign immunity for
officers in conducting high-speed pursuit in section 768.28(9)(d)(1),
Florida Statutes. In addition to the distinguishing facts of Pinellas
Park, that decision’s limitation of sovereign immunity cannot
control over the legislature’s authority to define sovereign
immunity of law enforcement officers pursuing suspects who then
injure innocent third parties.
Under the state’s strict separation of powers in Article II,
section three, Florida Constitution, the legislature is supreme in
deciding when and how to limit or waive sovereign immunity:
The doctrine of sovereign immunity, which provides
that a sovereign cannot be sued without its own
permission, has been a fundamental tenet of Anglo–
American jurisprudence for centuries and is based on the
principle that “the King can do no wrong.” The doctrine
was a part of the English common law when the State of
Florida was founded and has been adopted and codified
by the Florida Legislature. The original justification for
incorporating the doctrine into American jurisprudence
was the logical and practical ground that there can be no
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legal right as against the authority that makes the law
on which the right depends. Florida law has enunciated
three policy considerations that underpin the doctrine of
sovereign immunity. First is the preservation of the
constitutional principle of separation of powers. Second
is the protection of the public treasury. Third is the
maintenance of the orderly administration of
government.
However, the Florida Constitution provides that the
Legislature can abrogate the state's sovereign immunity.
See art. X, § 13, Fla. Const. (“Provision may be made by
general law for bringing suit against the state as to all
liabilities now existing or hereafter originating.”). Only
the Legislature has authority to enact a general law that
waives the state's sovereign immunity. Further, any
waiver of sovereign immunity must be clear and
unequivocal. In interpreting such legislative waivers of
sovereign immunity, this Court has stated that it must
strictly construe the waiver. Moreover, waiver will not be
found as a product of inference or implication.
Am. Home Assur. Co. v. Nat'l R.R. Passenger Corp., 908 So. 2d 459,
471–72 (Fla. 2005) (emphasis added) (internal quotations and
citations omitted).
Cases describing what actions do not constitute negligence
under the earlier standard are instructive here because if
negligence was not established in those cases, similar facts could
never rise to the level required to show a waiver of sovereign
immunity under section 768.28(9)(d)(1), Florida Statutes. For
example, pursuits involving speeding on public roads at eighty
miles per hour while violating a department policy were deemed
not to be negligent in Porter v. State, Dep’t of Agriculture &
Consumer Servs., 689 So. 2d 1152 (Fla. 1st DCA 1997), much less
rising to a level above gross negligence required to constitute a
disregard for human life under section 768.28(9)(d).
The pursuit in the present case was conducted in a manner
“necessary to apprehend the offender” without exceeding “proper
and rational bounds” of conduct. Horne, 198 So. 2d at 13. Thus,
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Appellee satisfied the first prong of section 768.28(9)(d), Florida
Statutes.
On the second prong, whether the officer reasonably believed
the fleeing motorist had committed a forcible felony as defined in
section 776.08, Appellant argues that documents prepared
contemporaneous to the incident demonstrate that the officer
initiated the pursuit because the motorist committed “reckless
driving” and “fleeing and eluding,” neither of which are forcible
felonies under section 776.08, Florida Statutes. Appellee argues
that its affidavit stated that three or four people had to jump out
of the way of the fleeing car when it backed out of a driveway,
demonstrating that the officer observed an aggravated assault, a
forcible felony as defined in section 776.08, Florida Statutes.
Appellee argues that the police report forms limited officers to
listing two reasons for initiating and did not require them to list
every reason, and therefore the officer’s listing of “reckless driving”
and “fleeing and eluding” on the form does not establish that he
did not observe an aggravated assault.
The officer stated in his affidavit that he initially saw the
vehicle in question pull out of a driveway, causing its front end to
spin around, and three or four pedestrians had to jump out of the
way to avoid serious injury. We hold therefore that the officer
witnessed an aggravated assault, a forcible felony under section
776.08, Florida Statutes. See § 784.021(1)(a), Fla. Stat. (2019) (an
aggravated assault includes an assault with a deadly weapon).
Section 768.28(9)(d) does not require an arrest or citation for
a forcible felony, but only that the pursuing officer reasonably
believe the person being pursued had committed an aggravated
felony. The Vehicle Pursuit Report and affidavit establish that the
officer observed a forcible felony, a fact not disputed by the absence
of an arrest or citation for aggravated assault. Thus, Appellee also
met its burden regarding the second prong under Section
768.28(9)(d)(2).
On the third prong, whether the pursuit was conducted in
accordance with a written policy governing high-speed pursuit
adopted by the employing agency, Appellant argues that officers
violated the relevant vehicle-pursuit policy. Appellant first argues
that the officers violated a section of the policy that requires
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officers to evaluate whether the risk to public inherent in pursuit
is offset by the risk to the public by not immediately apprehending
the violator. But the arrest report and the officer’s affidavit
indicate that members of the public were at risk because of the
driver’s actions. The undisputed facts therefore show that officers
considered public safety in compliance with the agency’s written
policy.
Appellant next argues that officers violated a section of the
policy prohibiting officers from continuing to follow a violator in an
attempt to maintain visual observation once pursuit has been
terminated. The evidence established, however, that the initial
officer stopped pursuing the fleeing vehicle when it left his sight,
and that he only continued pursuit after the vehicle reentered his
sight. He did not follow the suspect in an attempt “to maintain
visual observation,” and therefore the officer acted in accordance
with the written policy.
Appellant also argues the officers violated the policy by failing
to terminate pursuit when the risks of pursuit outweighed the
need for apprehension. But in addition to the initial
endangerment of the pedestrians near the driveway, the arrest
report stated that the fleeing vehicle ran several cars off the road
and repeatedly drove on the sidewalk to get around traffic. The
evidence thus established that the fleeing driver endangered the
public before the pursuit and continued to endanger the public
during pursuit, and as such established that the need for
apprehension continued throughout the pursuit. The evidence
does not establish that the officers violated written policy and does
not dispute the lieutenant’s assessment in his affidavit that the
pursuit was conducted in accordance with the policy. The
undisputed facts viewed in the light most favorable to Appellant
therefore establish that the officers acted in accordance with a
written policy, satisfying the third prong of section 768.28(9)(d),
Florida Statutes.
Finally, Appellant argues that the trial court applied an
incorrect “qualified immunity” standard instead of an “immunity
from liability” standard. Appellant is correct that, unlike section
768.28(9)(a), which grants individual state officers immunity from
judgment and suit in certain cases, section 768.28(9)(d) only grants
employing agencies immunity from judgment. However, in
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entering summary judgment, the court properly determined that
Appellee was not liable based on the undisputed material facts.
The court applied the correct statute, and ruled that based on the
presented facts, Appellee satisfied the elements of section
768.28(9)(d), and entered judgment in Appellee’s favor. The court
did not rule that Appellee was immune from suit, but rather ruled
that based on the undisputed facts Appellee was immune from
judgment, in accordance with section 768.28(9)(d), Florida
Statutes.
The undisputed facts establish that Appellee was not liable
under section 768.28(9)(d), Florida Statutes. Based on the
undisputed facts, no reasonable jury could have found that the
officers acted recklessly or with such a lack of care as to
demonstrate a disregard for human life, safety or property. Thus,
summary judgment was proper because sovereign immunity was
not waived based on these facts under section 768.28(9)(d).
AFFIRMED.
JAY, J., concurs; BILBREY, J., concurs in result with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
BILBREY, J., concurring in result.
I agree with much of what the majority concludes and with
the result reached. I write to discuss the second prong for an
“employing agency of a law enforcement officer” to claim immunity
under section 768.28(9)(d), Florida Statutes, that is whether “the
officer reasonably believes that the person fleeing has committed
a forcible felony” and to explain that while I may disagree with
some of the majority’s reasoning on this issue, I nonetheless
believe we are correct to affirm.
I agree with the majority that the crimes listed on the police
report forms were not conclusive, and the officers could have been
in pursuit after observing a forcible felony even though no forcible
felony was listed on the forms. Appellant’s only argument
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regarding the forcible felony prong for immunity is that we should
ignore the purported “self-serving” statements by the Jacksonville
Sheriff’s officers. * I agree with the majority that we are correct to
consider the reports and statements contained therein.
The majority opinion holds “that the officer witnessed an
aggravated assault, a forcible felony under section 776.08, Florida
Statutes.” Majority op. at 7. I do not necessarily agree, but still
believe we are correct to affirm. An aggravated assault can be
proven with evidence of an assault with a deadly weapon.
§ 784.021(1)(a), Fla. Stat. For almost a hundred years, Florida law
has held that intentionally putting a victim in fear of getting hit
by an automobile qualifies as aggravated assault. See Williamson
v. State, 111 So. 124 (Fla. 1926). But here proof of intent is
questionable. See § 784.011(1) (defining assault, in part, as “an
intentional, unlawful threat by word or act to do violence to the
person of another”). To prove an assault, while there is no
requirement to show that the perpetrator intended “to do violence
to the victim,” it must be shown that there was “an intentional
threat that creates a fear of imminent violence.” Pinkney v. State,
74 So. 3d 572, 576 (Fla. 2d DCA 2011) (en banc); see also Williams
v. State, 238 So. 3d 915 (Fla. 1st DCA 2018).
Undoubtedly, the pedestrians who were almost hit by the
fleeing driver were afraid of being struck by the vehicle. But did
the fourteen-year-old driver intend to put the pedestrians in fear
of being struck or did the driver recklessly endanger the
pedestrians? See § 316.192(1)(a), Fla. Stat. (defining reckless
driving as “willful or wanton disregard for the safety of persons or
property”); Anderson v. State, 247 So. 3d 680 (Fla. 1st DCA 2018),
rev. granted, SC18-1059, 2018 WL 6681770 (Fla. Dec. 19, 2018)
(distinguishing the crime of reckless driving from aggravated
assault). While aggravated assault is a forcible felony, reckless
driving is not. § 776.08, Fla. Stat. On this record, I do not believe
we can say a forcible felony was committed, and I would not go as
*
Of course any statement in support of summary judgment
would likely be self-serving. See Fla. R. Civ. P. 1.510(c) (defining
“summary judgment evidence” to be used by the proponent of a
motion for summary judgment).
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far as the majority in definitively concluding a forcible felony
occurred.
However, the Appellant does not make this argument
regarding proof of intent being lacking. Barring some
fundamental error, not present here, we can only reverse when “an
appellant raises claims of error.” D.H. v. Adept Cmty. Servs., Inc.,
43 Fla. L. Weekly S533, S535, 2018 WL 5660595, *6 (Fla. Nov. 1,
2018). Appellant does argue that the pursuit occurred because of
reckless driving, but I do not believe the intent issue I mention was
raised by Appellant such that we could reverse on that ground. See
Doe v. Baptist Primary Care, Inc., 177 So. 3d 669 (Fla. 1st DCA
2015) (holding that an appellate court will only consider points
raised in the initial brief or the points are deemed waived). I
therefore believe that affirmance is the correct result.
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Brett A. Hastings, Jacksonville Beach, for Appellant.
R. Anthony Salem, Assistant General Counsel, City of
Jacksonville, Jacksonville, for Appellee.
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