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Ross v. City of Jacksonville

Florida Court of Appeals, First District

June 12, 2019

David L. Ross, Appellant,
v.
City of Jacksonville, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Kevin Blazs, Judge.

          Brett A. Hastings, Jacksonville Beach, for Appellant.

          R. Anthony Salem, Assistant General Counsel, City of Jacksonville, Jacksonville, for Appellee.

          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."

         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, safety, or property" but noting "that this holding is based on the ...


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