City of Pinellas Park v. Brown

We have for review Brown v. City of Pinellas Park, 557 So.2d 161 (Fla. 2d DCA 1990), which certified the following question of great public importance:

IS THE CONTINUATION BY LAW ENFORCEMENT OFFICERS OF A HIGH SPEED VEHICULAR PURSUIT OF A TRAFFIC LAW VIOLATOR WHICH RESULTS IN DEATHS OF INNOCENT BYSTANDERS AN ACTIONABLE BREACH OF DUTY INVOLVING AN OPERATIONAL LEVEL GOVERNMENTAL FUNCTION WHICH IS NOT IMMUNE FROM LIABILITY WHEN IT IS ALLEGED THAT UNDER THE CIRCUMSTANCES THE OFFICERS SHOULD HAVE KNOWN THAT CONTINUING THE PURSUIT WOULD CREATE AN UNREASONABLY DANGEROUS HAZARD TO INNOCENT BYSTANDERS, INCLUDING THOSE WHO WERE KILLED WHEN THE TRAFFIC LAW VIOLATOR’S VEHICLE COLLIDED WITH THEIR VEHICLE?

Id. at 178. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

After running a red light in Pasadena, Florida, John Deady attempted to elude a sheriffs deputy in a high-speed chase. Before this chase ended on a stretch of U.S. 19, it would pass along a twenty-five-mile course in Pinellas County, through which normal urban traffic also was passing. Thirty-four separate traffic signals— at least some of which were ignored by this ill-fated caravan — were encountered along the way, thereby endangering everyone lawfully passing through those intersections. The route stretched from the suburbs of St. Petersburg, northward through the urban area surrounding Clearwater, and on beyond the fringes of Dunedin. This is part of the densely populated Tampa-St. Petersburg urban area. See Brown, 557 So.2d at 163-64.

As the chase continued, the sheriffs deputy was joined by at least fourteen and as many as twenty separate police or sheriffs vehicles, each of which was pursuing Deady at speeds that varied between eighty and 120 miles per hour. Although the chase was begun by a Pinellas sheriffs deputy, officers from Kenneth City and the City of Pinellas Park also joined. However, most of the officers involved were from the sheriffs department. Id.

At some point, the Pinellas County Sheriffs Department ordered its officers to discontinue the chase. For unknown or unstated reasons, this order was not obeyed. Id. at 164.

By this time, the caravan was approaching the intersection of U.S. 19 and State Road 584 at very high speeds. At this intersection, Sheriffs Corporal Daniel Rusher was waiting in the turn lane, ready to move onto the highway Deady and the caravan were traveling. In the through-lane immediately next to Rusher was a vehicle occupied by two sisters, Susan and Judith Brown. Rusher made no attempt to block the intersection or to prevent the Browns from proceeding into the intersection. Rather, he was preparing to become part of the caravan. Id.

When the light turned green, Rusher moved his vehicle onto U.S. 19 so he could wait for Deady to pass and join the chase. At the same time, the vehicle containing the Brown sisters moved forward into the intersection to pass through it. Deady’s vehicle illegally entered the intersection at this precise moment and struck the Browns’ vehicle at ninety miles per hour. Deady and Susan Brown died instantly, and Judith Brown died three days later. Id.

According to the second amended complaint, the Pinellas Sheriffs Department at the times in question maintained a written policy, contained in General Order A-9, that required the discontinuance of certain “caravan-type” pursuits. This policy applied, says the complaint, whenever the area’s citizenry was being endangered by hard pursuit, especially if the pursuit was prompted by a traffic violation. Thus, the complaint alleges that deputies directly violated this policy based on the facts at hand. The complaint alleges that this policy was further violated when the deputies disregarded the order to cease pursuit that had been given them. Id. at 167.

In addition, the City of Pinellas Park also is alleged to have maintained a written policy on this question, contained in General Order Number 45, at the times in question. The complaint states that this policy required the termination of pursuit after consideration of a variety of factors. These are: (a) the identity of the fleeing individual has been ascertained, e.g., through a license-plate check; (b) the time of day and the amount of traffic was such that pursuit of the fleeing vehicle was dangerous; (c) the fleeing vehicle was clearly outdistancing the pursuit vehicles; (d) the seriousness of the crime was such that it would not warrant the risk to innocent bystanders, the officer, or the occupants of the fleeing vehicle; or (e) the number of vehicles involved in the pursuit had become too great. The complaint alleges that, based on this policy, pursuit should have been discontinued; and the officers therefore violated the written policy. Id.

Likewise, the complaint alleges that the Kenneth City Police Department at the relevant times maintained an oral policy prohibiting participation in high-speed chases by its officers. This policy also was violated, says the complaint. Id.

The issues before us today are (a) whether the police owed a legal duty to the Brown sisters, (b) whether the activities of the police officers described above were shielded from all liability by the doctrine of sovereign immunity in spite of any duty owed the Browns, and (c) whether there is a sufficient allegation of proximate causation to create a jury question in this instance.

Duty

In Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989), this Court held that

[w]here a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

Petitioners argue that Kaisner should be factually distinguished and that the present case is controlled by City of Miami v. Home, 198 So.2d 10 (Fla.1967). We cannot agree.

While the facts of Kaisner indeed differ from those at hand, it is clear from the plain language of the Kaisner opinion that it was describing the general manner in which a duty of care arises under Florida law. We have so indicated in a recent opinion that directly relied upon Kaisner in making the following observation:

[A]s the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.

The statute books and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element.

McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla.1992) (citation omitted). In the present case, we think it manifest that a high-speed chase involving a large number of vehicles on a public thoroughfare is likely to result in injury to a foreseeable victim, and that the discontinuance of this chase by police is likely to diminish the risk. In other words, some substantial portion of the risk is being created by the police themselves, notwithstanding any contributory negligence of the person being chased. Accordingly, we believe the law must recognize a duty in this context even though the accident did not involve a police vehicle.

We find nothing in Horne supporting a contrary conclusion. As the district court below correctly noted, Horne expressly stands for the proposition that hot pursuit by police officers does not always give rise to liability, but sometimes can. In Horne we stated:

It seems reasonably clear that the complaint [in Horne ] charged that the pursuit itself constituted reckless and wanton conduct rather than that, although pursuit per se was lawful, the manner of pursuit, the conduct of the officers in otherwise discharging a necessary duty, was reckless and wanton.

Horne, 198 So.2d at 12. The issue addressed in Horne, in other words, was whether a valid complaint is stated if the plaintiff alleges only that hot pursuit is per se negligence. Rejecting this claim, we simply held that a plaintiff must allege that the police engaged in hot pursuit in a negligent or wanton manner. Id. at 13. We stated:

We think the rule is that the officer should take such steps as may be necessary to apprehend the offender but, in doing so, not exceed proper and rational bounds nor act in a negligent, careless or wanton manner.

Id. (emphasis added). Accord Brown, 557 So.2d at 170 (quoting same material). Here, “rational bounds” clearly were exceeded under the facts alleged.

We emphasize, however, that even in the absence of the hot-pursuit policies quoted above or the order to cease pursuit, we believe the chase described in the Second Amended Complaint clearly would give rise to a duty under the principles described in Kaisner. In no sense should this opinion be read as penalizing to any degree only those law enforcement agencies that have adopted hot-pursuit policies. The acts alleged here describe a situation in which motorists in Pinellas County were placed in deadly peril by as many as twenty police vehicles attempting to chase down a single man who had run a red light. On its face, this allegation alone definitely makes out a case for a duty owed to all persons who might encounter the police caravan that was chasing Deady. Such a duty would have existed whether or not any hot-pursuit policy existed and whether or not the police had been ordered to cease their pursuit.

Sovereign Immunity

The next question is whether the police were immune from liability notwithstanding the duty placed upon them by the law. Again, our most recent pronouncement on this issue is contained in Kaisner, where we noted that sovereign immunity does not shield acts that are “operational” in nature but only those that are “discretionary.” As to this question, we held that an act is operational if it

is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.

Id. at 737 (emphasis added). Governmental acts are “discretionary” and immune, on the other hand, if they involve'

an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning.

Id.

Based on the plain language of Kaisner, we cannot accept petitioners’ argument in favor of sovereign immunity in this case. We utterly fail to see how the events alleged in this complaint are anything but “operational.” Taking the allegations in the complaint as true, we are faced with a situation in which officers engaged in flagrantly dangerous conduct that went far beyond what was necessary to vindicate the laws of Florida. Moreover, this conduct cannot honestly be characterized either as “policy” or “planning,” because it self-evidently was contrary to both. See Department of Transportation v. Neilson, 419 So.2d 1071, 1077-78 (Fla.1982). In fact, the plaintiffs have alleged that each of the police agencies had adopted a policy to the contrary. Accordingly, the actions of the police in this instance are not entitled to sovereign immunity.

We agree that the actual execution of a hot-pursuit policy is entitled to a high degree of judicial deference consistent with reason and public safety. Kaisner specifically noted that special deference is given to pressing emergencies, and that certain police actions may involve a level of such urgency as to be considered discretionary and not operational. Kaisner, 543 So.2d at 738 n. 3. However, this does not mean that state agents can escape liability if they themselves have created or substantially contributed to the emergency through their own negligent acts or failure to adhere to reasonable standards of public safety.

To fall within the Kaisner exception, the serious emergency must be one thrust upon the police by lawbreakers or other external forces, that requires them to choose between different risks posed to the public. In other words, no matter what decision police officers make, someone or some group will be put at risk; and officers thus are left no option but to choose between two different evils. It is this choice between risks that is entitled to the protection of sovereign immunity in appropriate cases, because it involves what essentially is a discretionary act of executive decision-making. Id. at 737 (exercises of executive power are sovereignly immune).

Nevertheless, in the absence of such an emergency, the method chosen for engaging in hot pursuit will remain an operational function that is not immune from liability if accomplished in a manner contrary to reason and public safety. As we stated in Kaisner, when government agents create a zone of risk through operational functions, then the governmental unit will not be shielded by sovereign immunity. Kaisner, 543 So.2d at 735.

Here, the complaint alleges an enormous overreaction by sheriffs and police officers — one reminiscent of the most violent, daredevil films that Hollywood stunt men have produced. Solely because a man ran a red light, suddenly the innocent citizens of Pinellas County were subjected to a threatening stream of publicly-owned ve-hides hurtling pell-mell, at breakneck speed, down a busy roadway in one of Florida’s most densely populated urban areas. This caravan stormed through red lights for some twenty-five miles, gathering more and more police vehicles as it sped along. By the time the tragic chase ended, between fourteen and twenty police vehicles were included, only magnifying the risk to Pinellas County’s innocent and unsuspecting residents. The reasons for these actions can only be dubious. Were there no more reasonable means of vindicating Florida’s law against running a red light than this?

Surely there is only one answer to this question. The police simply could have taken the violator’s license-plate number together with a description of the car and driver, and then stopped the pursuit. Later, the violator could be located in some less dangerous setting, arrested, and brought to justice. And even if he continued to elude police, surely everyone must agree that this result is far better than the deaths of innocent persons. In the balance, the desire to bring Deady to justice for running a red light is far less important than the lives of the Brown sisters.

We do not suggest, however, that the police must allow every lawbreaker to escape merely because a hot pursuit is occurring. Deference will be shown to the reasonable decisions of law officers to maintain pursuit of certain offenders who are reasonably thought to be violent or to pose a danger to the public at large. What is required is for police to use reasonable means in light of the nature of the offense and threats to safety involved. For example, a high-speed chase is likely to be justifiable if its object is a gang of armed and violent felons who probably will harm others. As we have stated elsewhere, deference will be shown to police conduct when officers must choose between two different risks that both will adversely affect public safety.

Proximate Causation

The remaining issue is whether a jury question exists as to proximate causation. We conclude it does. In McCain, we recently stated:

[H]arm is “proximate” in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question_ [I]t is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. In such instances, the true extent of liability would remain questions for the jury to decide.

McCain, 593 So.2d at 503 (citations omitted). A jury question does not exist, on the other hand, where

“after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm.”

Id. at 504 (quoting Restatement (Second) of Torts § 435(2) (1965). Where reasonable persons may differ on this question, however, proximate causation remains an issue for the jury to resolve. Id.

Based on McCain, we believe it clear that a jury question exists in the present case as to proximate causation. Human experience and prudent foresight strongly suggest that serious bodily injury is likely to result when a stream of between fourteen and twenty vehicles are moving down an urban thoroughfare, in disregard of traffic lights, at speeds of up to 120 miles per hour. This conclusion is not undermined by the fact that Deady’s vehicle, not one of the police cars, actually was engaged in the collision that killed the Browns. Experience and foresight support the conclusion that Deady engaged in such reckless conduct primarily because he was being chased by police, and that this misconduct would have ceased had the police discontinued the pursuit. There is nothing extraordinary in this conclusion. Accordingly, the issue may not be taken from the finder of fact.

For the foregoing reasons, the opinion under review is approved, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

It is so ordered.

BARKETT, C.J., and SHAW, J., concur.

GRIMES, J., concurs with an opinion.

OVERTON, J., dissents with an opinion, in which McDONALD, J., concurs.

McDONALD, J., dissents with an opinion.

HARDING, J., dissents with an opinion, in which McDONALD, J., concurs.

.For purposes of deciding whether the complaint will be dismissed, we must treat all allegations in the complaint as true, without so holding. The recitation of the facts here thus comes entirely from the Second Amended Complaint. In the paragraphs immediately below, we have cited both to the Second Amended Complaint and the related portion of the opinion below.

. The Second Amended Complaint alleges that "an order to terminate the pursuit had been given by the supervisor which was disregarded all in contravention of General Order A-9 applicable to the PINELLAS COUNTY SHERIFF’S DEPARTMENT.” Second Amended Complaint, at 8.

. Second Amended Complaint, at 8.

. Second Amended Complaint, at 8.

. Second Amended Complaint, at 8.

. The plaintiffs here clearly met this standard. They allege inter alia:

The conduct of each chase participant initiating and maintaining the high speed chase under the circumstances described deviated from reasonable and excepted [sic] standards of care of law enforcement agencies.

Second Amended Complaint, at 9.

. Once again, we are concerned here only with whether the facts as alleged state a valid complaint that should be tried in court. The truth of these assertions would be gauged by the fact-finder at trial.

. We emphasize that nothing in this opinion is intended to revisit or limit the discretionary authority of police recognized in Everton v. Willard, 468 So.2d 936 (Fla.1985). The concern raised by Everton — alleged failure of police to arrest a dangerous person when given the opportunity — is quite different from the matters at issue here. Moreover, we find that police in the present case would have incurred no liability had they honored their departmental policies and discontinued pursuit of Deady, even if Deady later injured someone'with his automobile or otherwise. See id. at 938. What the police may not do is themselves needlessly exacerbate the danger to the public. Any danger a suspect poses to the public solely on his or her own cannot be imputed to the police who earlier have failed to make an arrest. Id.