Second DCA
The City of New Port Richey v. Lamko
2nd DCA
4/12/23, Judge Sleet
Topics: Negligence; Sovereign Immunity (Florida)
Two plaintiffs sued the City of New Port Richey for negligence due to injuries suffered as the result of a high-speed pursuit by the city’s police officer.
The officer saw a white Range Rover with windows that looked like they were tinted too dark under Florida law. He had heard that a similar vehicle was used in recent narcotic sales. When he executed a U-turn to pull the Rover over, the Rover sped off, and he chased it. Two other officers joined the pursuit, which turned into something out of a movie with speeds over 100 miles per hour and vehicles driving on the wrong side of the road around other cars. The Rover lost control at a T- intersection, hit two parked cars in front of a house, and one of those cars hit Lamko, pinning her between the car and the closed garage door. The second plaintiff is the homeowner, as Lamko was a renter.
The City moved for summary judgment, arguing that the officers did not cause the Rover to wreck and the decision to initiate high-speed pursuit was a policy-making decision protected by sovereign immunity.
The Plaintiffs also moved for summary judgment, arguing that the sovereign immunity waiver statute, section 768.28(9)(d)(2), required the officer to have a reasonable belief that the driver had committed a forcible felony, and that was not true here. Also, the plaintiffs argued that under 768.28(9)(d)(3), Fla. Stat., the City could not claim sovereign immunity because the decision to engage in a high-speed pursuit under the facts of the case violated the City’s policy on vehicle pursuits.
The trial court held that the City owed the plaintiffs a duty of care. The trial court held that the decision of whether to pursue was operational, not a planning function that would be protected by sovereign immunity. And the judge agreed with Plaintiff’s two arguments.
The City appealed, as a denial of sovereign immunity is a basis for immediate interlocutory appeal without need to wait for a final judgment.
The DCA agreed with the plaintiffs that the foreseeable zone of risk of a high-speed chase includes vehicular accidents, so the City had a duty to the plaintiffs.
In regard to sovereign immunity, discretionary action and basic judgmental or discretionary governmental functions of the executive branch are immune from liability, while operational acts are not. Discretionary actions include policy and planning. Operational functions reflect the secondary decisions as to how those policies or plans will be implemented. The trial court was correct that the officer’s decision of whether to engage in a high-speed pursuit was operational, not an example of policymaking. The City creating a written policy is discretionary, but the officer’s “decision in this case to drive ninety-three miles per hour down a street that he knew would dead end into a residential neighborhood to pursue an offender who was driving 100 miles an hour because that offender may have committed a window tint violation amounted to an operational function.”
Finally, section 768.28(9)(d) only protects the City if they can show all three requirements of the statute: 1) that the pursuit was not reckless; 2) that the officer reasonably believed the person fleeing committed a forcible felony; and 3) the pursuit was conducted in the manner prescribed by a written policy on high-speed chases after the officer received training on the policy. Without even reaching the “reckless” prong, the DCA held that the trial judge correctly determined that there was no reason to think the driver committed a forcible felony, and the chase did not comport with the written policy.
The City tried to argue that writing down a policy for high-speed chases did not create a duty, but that argument missed the mark. The foreseeable zone of risk test proved the duty. The written policy was pertinent only to the sovereign immunity statute. And the City did not even challenge the finding about there being no reason to think the driver committed a forcible felony. Thus, the Court affirmed the order granting partial summary judgment on the issues of duty and sovereign immunity.
https://supremecourt.flcourts.gov/content/download/865847/opinion/222361_DC05_04122023_ 093956_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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