final until disposition of timely filed motion for rehearing.
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.
S. Perwin of Joel S. Perwin, P.A., Miami, and David W. Brill
and Joseph J. Rinaldi, Jr. of Brill & Rinaldi, Weston,
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.
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.
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).
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]
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),
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).
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.
present this opinion in two sections, with subsections, as
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
c. The negligence allegations - duty, breach, causation,
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
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
Allegations of the Deputy's Knowledge of the Shooter
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.
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.
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.
Allegations of the Deputy's Conduct on the Day of the
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."
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.
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
seconds later, at 2:22:41 pm, the deputy began
"loping" from Building 1 towards Building 12.
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."
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.
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.
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.
seconds later, at 2:24:35 pm, the shooter shot Meadow Pollack
seconds later, at 2:25:16 pm, the shooter again shot Meadow
Pollack multiple times. Meadow Pollack was killed, as were