David L. Ross v. City of Jacksonville

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2994

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DAVID L. ROSS,

Appellant,

v.

CITY OF JACKSONVILLE,

Appellee.

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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.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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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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