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Milanese v. City of Boca Raton

Florida Court of Appeal, Fourth District

February 22, 2012

Peter MILANESE, as Personal Representative of the Estate of Christopher Milanese, Appellant,
CITY OF BOCA RATON, Florida, Appellee.

Rehearing Denied April 18, 2012.

Page 340

James K. Green of James K. Green, P.A., West Palm Beach, for appellant.

Matthew H. Mandel, Jamie A. Cole and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for appellee.

En Banc


We grant the appellee's motion for rehearing en banc. We withdraw our opinion issued July 20, 2011, and substitute the following opinion.

The issue in this appeal is whether the police, upon legally releasing an impaired person from custody at a police station or jail, thereafter owe a duty of care to that person when the police have not created any risk which that person may face upon release. We hold that the police do not owe a duty of care under those circumstances. Therefore, we affirm the circuit court's dismissal of the third amended complaint in this case.

The third amended complaint alleges that Christopher Milanese, after a night of heavy drinking, got in his truck and began driving erratically. His cousin, who was following him in her car, called 911.

At 3:14 a.m., a City of Boca Raton police officer pulled Milanese over. Milanese appeared impaired. The officer took Milanese into custody, told his cousin to leave, and arranged for his truck to be towed. The officer then transported Milanese to the police station.

Between 3:27 and 3:41 a.m., the officer issued Milanese five traffic citations, none of which were for driving under the influence.

At 4:27 a.m., the officer called a cab for Milanese. At 4:29 a.m., the cab arrived at the station. At 4:30 a.m., the officer escorted Milanese to the front door of the station and released him. Milanese still was impaired. The cab driver did not see Milanese and left at 4:33 a.m.

At 5:20 a.m., Milanese was laying next to nearby railroad tracks when a train approached. The engineer blew the train's horn. Milanese did not move. The train struck and killed Milanese. At the time of Milanese's death, his blood alcohol level was .199.

Page 341

Milanese's estate sued the City for negligence. The estate alleged:

14.... The [City] had created a " special relationship" with [Milanese] when he was arrested and taken into custody. This " special relationship" included, among other things, [the duty] to insure the proper safety of [Milanese].
15. [The City] had an affirmative obligation to protect [Milanese] from harm while in [its] custody, and [was] responsible for his safety in releasing [Milanese] in a safe and reasonable manner. [The City was] negligent in releasing [Milanese], who was impaired, from the Boca Raton Police Department at 4:30 a.m. into the night without providing for his safety.
16. [The City was] negligent in not insuring that [Milanese] had transportation to go home. [The City was] negligent in allowing [Milanese] to wander through the night in a strange neighborhood while [Milanese] was impaired....
17. [The City was] negligent in having called a Yellow Cab for [Milanese] and not determining if the Yellow Cab ever arrived; in not escorting [Milanese] to the Yellow Cab; [and] in not having placed [Milanese] in the [Yellow Cab]— a presumably safe environment knowing that [Milanese] lived in another county.
18. [The City was] negligent in releasing [Milanese] to wander the streets of Boca Raton in an impaired and intoxicated condition. [The City] knew, or should have known, that by the releasing of [Milanese] at the time and place [it] did and in the condition he was in, it was foreseeable that [Milanese] would be placed in harm's way— especially in light of the fact that an active railroad was located less than 50 feet from the rear of the police station.

The City moved to dismiss. The motion argued that the City owed no duty of care to Milanese for two reasons: (1) Milanese was not in custody at the time the train killed him; and (2) the City did not create a foreseeable zone of risk. The circuit court granted the motion. This appeal followed.

Our review is de novo. See Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009) (" [A]ppellate courts review decisions resolving motions to dismiss under a de novo standard where those motions are based on a claim that no legal cause of action exists as alleged in the complaint." ) (citations omitted). We must decide whether the police owed Milanese a duty of care under the facts alleged. See id. at 1046 (the duty of care requirement " poses a question of law that the court must answer before permitting a negligence claim to proceed before the trier of fact" ) (citations omitted).

In deciding this issue, we must assume the complaint's allegations as true and allow all reasonable inferences arising therefrom in the estate's favor. See id. at 1042-43. We also must consider that, in the law enforcement context, a duty of care exists " when law enforcement officers become directly involved in circumstances which place people within a ‘ zone of risk’ (1) by creating or permitting dangers to exist, (2) by taking persons into police custody, (3) detaining them, or (4) otherwise subjecting them to danger." Id. at 1048 (emphasis, footnotes, citation, and other internal quotations omitted).

Here, accepting the estate's allegations as true, we conclude that a duty of care did not exist upon Milanese's release because the police: (1) did not create or permit dangers to Milanese to exist; (2) were no longer holding Milanese in custody; (3) were no longer detaining Milanese; and (4) did not otherwise subject Milanese to danger.

Page 342

We base our conclusion upon our precedent in Lindquist v. Woronka, 706 So.2d 358 (Fla. 4th DCA 1998), which involves very similar facts. There, two police officers arrested the plaintiff for disorderly conduct. At the time of the arrest, the plaintiff was " intoxicated, disoriented, confused, unaware of his surroundings, and otherwise incapacitated." Id. at 359. The officers took the plaintiff to the police station. The officers later released the plaintiff with a notice to appear at a future court date. After being released, the plaintiff was crossing a highway near the police station when a vehicle struck and injured him. The plaintiff sued the officers for a civil rights violation, claiming that the police " should have kept him in custody for his own protection because he was obviously inebriated." Id. Alternatively, the plaintiff alleged, " the police officers should have driven him home." Id. According to the plaintiff, the police " knowingly released him from [the station], ‘ an area more dangerous than the area where [he] was arrested,’ thus exposing him to increased danger." Id. The circuit court dismissed the plaintiff's civil rights claim " on the basis that the [officers'] action, or inaction, did not rise to the level of a constitutional violation, pursuant to 42 U.S.C. ยง 1983." Id. at 360.

We affirmed on two grounds. First, we concluded that the plaintiff's theory of liability based on being taken into custody did not apply. We reasoned that " [the] plaintiff was not in custody at the time of the accident, nor was his liberty otherwise restrained." Id. at 361. The same reasoning eliminates the second and third grounds for which " zone of risk" liability may be considered in this case. Wallace, 3 So.3d at 1048.

Second, we concluded in Lindquist that the plaintiff's " state-created danger" theory of liability did not apply either. That theory derives from the following statement in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989):

While the State may have been aware of the dangers that [the plaintiff] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of [the plaintiff] does not alter the analysis, for when it [released him], it placed him in no worse position than that in which he would have been had it not acted at all; the ...

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