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Peterson v. Pollack

Florida Court of Appeals, Fourth District

December 18, 2019

SCOT PETERSON, Appellant,
v.
ANDREW POLLACK and SHARA KAPLAN, as Co-Personal Representatives of the ESTATE OF MEADOW POLLACK, decedent, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal of nonfinal order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. CACE 18-009607 (26).

          Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellant.

          Joel S. Perwin of Joel S. Perwin, P.A., Miami, and David W. Brill and Joseph J. Rinaldi, Jr. of Brill & Rinaldi, Weston, for appellees.

          Gerber, J.

         This appeal arises from the horrific killing of seventeen students and teachers, and the permanent physical and mental injuries which many others suffered, during the shooting rampage at Marjory Stoneman Douglas High School.

         Meadow Pollack's parents have sued, among others, the sheriff's deputy who served as the school resource officer, alleging as to the deputy that his negligence materially contributed to their daughter's death.

         The deputy filed a motion to dismiss the parents' suit against him. The deputy argued he is immune from suit and liability under section 768.28(9)(a), Florida Statutes (2018), which provides, in pertinent part:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. . . .

§ 768.28(9)(a), Fla. Stat. (2018).

         According to the deputy, the parents' allegations regarding his conduct, even if true, are insufficient to show that, during this tragic event, he acted "in bad faith," "with malicious purpose," or "in a manner exhibiting wanton and willful disregard of human rights [or] safety."

         The circuit court issued an order denying the deputy's motion to dismiss. The circuit court's order stated, in summary fashion, "As a matter of law, [the deputy] is not entitled to statutory immunity under section 768.28(9), Florida Statutes."

         The deputy has filed this appeal, seeking this court's de novo review of his motion to dismiss on the ground of section 768.28(9) immunity. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(x).

         We conclude that the parents' allegations regarding the deputy's conduct, taken as true as we are required to do in this review, would be sufficient for a reasonable trier of fact to conclude that the deputy acted "in bad faith," "with malicious purpose," or "in a manner exhibiting wanton and willful disregard of human rights [or] safety," as those quoted phrases are defined under Florida law. Thus, we affirm the circuit court's denial of the deputy's motion to dismiss the parents' suit against him.

         We present this opinion in two sections, with subsections, as follows:

1. The procedural history:
a. Allegations of the deputy's knowledge of the shooter;
b. Allegations of the deputy's conduct on the day of the shooting;
c. The negligence allegations - duty, breach, causation, damages;
d. The circuit court's order denying the deputy's motion to dismiss;
2. Our review:
a. Standard of review;
b. Defining the phrases used in section 768.28(9)(a);
c. Applying the definitions to the amended complaint; and
d. Distinguishing the cases arising from the Columbine massacre.

         1. Procedural History

         The parents' allegations against the deputy regarding his conduct are presented in their amended complaint. For purposes of this opinion, we present the allegations in the amended complaint as true, viewing all reasonable inferences arising from the parents' allegations in their favor. See Preudhomme v. Bailey, 211 So.3d 127, 132 (Fla. 4th DCA 2017) ("[I]n reviewing a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the allegations therein as true, viewing all reasonable inferences arising therefrom in favor of the plaintiff.").

         a. Allegations of the Deputy's Knowledge of the Shooter

         Two years before the shooting, police received a report that the shooter had posted a photograph of himself with guns on a social media website, stating that he planned "to shoot up the school." An investigation revealed that the shooter had knives and a BB gun. This information was provided to the deputy. However, no evidence exists to indicate that the deputy further investigated the matter.

         Eighteen months before the shooting, a student reported to the deputy that the shooter, while depressed, had cut himself and ingested gasoline in an attempt to kill himself. The student further stated that the shooter wanted to buy a gun for hunting, and had drawn a swastika on his backpack next to the words "I hate n ------ s." School personnel called a behavioral health facility for assistance. The facility sent a mobile assistance team to evaluate the shooter. The deputy and other school personnel were present during the evaluation. The facility team contended that the shooter did not meet criteria for further assessment. However, the deputy and two guidance counselors concluded that the shooter should be "Baker Acted," that is, forcibly committed for psychiatric evaluation. The deputy said he would search the shooter's home for a gun, and the Florida Department of Children and Families (DCF) was called to investigate.

         However, according to a DCF report, the deputy ultimately refused to share any information with DCF about the shooter. The deputy also changed his mind about "Baker Acting" the shooter. Further, no evidence exists that the deputy went to the shooter's home and searched for any firearms.

         b. Allegations of the Deputy's Conduct on the Day of the Shooting

         At 2:20 pm on the day of the shooting, the deputy, while outside of the school's Building 1, heard a roving campus monitor use the school radio to warn an employee in the school's Building 12, "Got a suspicious subject on campus. Got a black bag in his hands. Keep your eyes open because I think he's going into your building. So . . . be careful."

         When the deputy heard this call, he did not immediately order a "Code Red," which would have resulted in the immediate lockdown of all school buildings and indicated a viable active shooting threat on campus. Because the deputy did not order the school to be locked down, the shooter was able to enter Building 12 at 2:21:15 pm.

         Seventeen seconds later, at 2:21:32 pm, the shooter began his rampage on Building 12's first floor. The campus monitor radioed the deputy, "There's some crazy shots going on."

         Sixty-nine seconds later, at 2:22:41 pm, the deputy began "loping" from Building 1 towards Building 12.

         Ten seconds later, at 2:22:51 pm, the campus monitor used a golf cart to pick up the deputy. Somebody using the radio yelled, "Oh, it sounds like fireworks," to which another person responded, "Those ain't fireworks."

         Twenty-four seconds later, at 2:23:15 pm, the deputy and the campus monitor arrived at Building 12. They heard more shots. The deputy jumped off the cart and told the campus monitor, "Get out of here . . . go back to the front of the school . . . we got a shooter on campus." However, the deputy did not enter Building 12. Instead, the deputy remained outside, positioning himself out of harm's way between two concrete walls at the building's corner. By that time, the shooter had killed nine people on Building 12's first floor.

         Twenty-eight seconds later, at 2:23:43 pm, the deputy radioed the sheriff's dispatch, "Be advised we have possible, could be firecrackers, I think we have shots fired, possible shots fired, 1200 Building." During those twenty-eight seconds, the deputy remained outside.

         Forty-seven seconds later, at 2:24:30 pm, the shooter reached the third floor where Meadow Pollack and others were located. During those forty-seven seconds, the deputy remained outside.

         Five seconds later, at 2:24:35 pm, the shooter shot Meadow Pollack multiple times.

         Forty-one seconds later, at 2:25:16 pm, the shooter again shot Meadow Pollack multiple times. Meadow Pollack was killed, as were ...


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