Bowden v. Henderson, 96-02301

• Decision Date: 03 September 1997
• Docket Number: No. 96-02301,96-02301
• Citation: 700 So.2d 714
• Parties: 22 Fla. L. Weekly D2102 Isac R. BOWDEN and Luna Dell Archie Haywood, individually, and as Co-Personal Representatives of the Estate of Robert Earl Bowden, Deceased, Appellants, v. Cal HENDERSON, as Sheriff of Hillsborough County, Appellee.
• Court: Florida District Court of Appeals

Page 714

700 So.2d 714

22 Fla. L. Weekly D2102

Isac R. BOWDEN and Luna Dell Archie Haywood, individually, and as Co-Personal Representatives of the Estate of Robert Earl Bowden, Deceased, Appellants, v. Cal HENDERSON, as Sheriff of Hillsborough County, Appellee.

No. 96-02301.

District Court of Appeal of Florida,

Second District.

Sept. 3, 1997.

Rehearing Denied Oct. 30, 1997.

R. Kent Lilly of Kent Lilly, P.A., Lakeland, for appellants.

Manuel J. Alvarez and Darrell D. Dirks of Rywant, Alvarez, Jones & Russo, Tampa, for appellee.

CAMPBELL, Acting Chief Judge.

Appellants Isac R. Bowden and Luna Dell Archie Haywood, individually, and as co-personal representatives of the Estates of Robert Earl Bowden, deceased, and Damon Lamar Bowden, deceased, challenge partial final summary judgments and final summary judgments entered in favor of appellee Cal Henderson, as Sheriff of Hillsborough County. The actions on appeal were consolidated below. We reverse.

Appellants are the natural parents of the deceased brothers, Robert Earl Bowden and Damon Lamar Bowden. The tragic events which led to appellants' actions below began on the afternoon of August 7, 1992. It was an afternoon of partying and "joyriding" by three brothers, Jimmy Harold Bowden (19), Robert Earl Bowden (19), Damon Lamar Bowden (29), and their friend Brandon Thomas Lyons (18).

The significant events took place in the Brandon and Turkey Creek areas of Hillsborough County. The four friends were traveling from place to place and party to party in Brandon Lyons' 1988 Honda automobile, which was owned by Brandon's father, Thomas Lyons. As the evening progressed, some drugs and considerable alcoholic beverages were consumed by the four friends. Brandon, who had a reputation for rather quickly showing the effects of alcohol consumption, soon turned the driving over to Jimmy Bowden because Brandon considered himself "trashed."

At approximately 11:30 p.m., on August 7, 1992, on Turkey Creek Road (which runs north and south) East of Brandon, north of State Road 60 and just north of the intersection of Turkey Creek Road and Trapnell Road, Deputy Sheriff Gary Herman of the Hillsborough County Sheriff's Office stopped Lyons' 1988 Honda, which was then being operated by Jimmy Bowden. Deputy Herman had been advised by his dispatcher of a citizen's report concerning an intoxicated driver in a blue Honda with a tag number that matched the Lyons vehicle. When Deputy Herman observed the Honda vehicle, he radar-clocked its speed at 74 miles per hour in a 45 mile per hour speed zone. When the Lyons vehicle was stopped, Jimmy Bowden was driving, Brandon Lyons was occupying the front passenger seat and Robert and Damon Bowden were in the rear seat. After stopping the vehicle, several other sheriff's deputies in sheriff's vehicles arrived to assist Deputy Herman. Deputy Given Garcia was one of those assisting deputies. After Jimmy Bowden was given field sobriety tests at the scene, he was arrested for D.U.I., taken into custody by Deputy Herman and placed in the rear seat of Deputy Herman's vehicle. Jimmy Bowden was not the only one of the four who was intoxicated; Herman described both Damon and Robert as being intoxicated, with Robert appearing "almost passed out."

Brandon Lyons' deposition testimony was that he informed the various deputies at the scene that Jimmy was driving Brandon's car because he (Brandon) was too "trashed" to drive. The deputies deny having heard such a statement and deny having inquired as to why Jimmy was driving. The deputies recall instead that Brandon Lyons stated he was able to drive his car to the not-too-distant home of his parents. Two deputies indicated that they each gave Brandon Lyons one type of field sobriety test (horizontal gaze test). Both deputies indicated he passed the test. Expert witnesses, however, opine that the tests given to Brandon Lyons were not properly administered. Expert evidence also indicated that five hours after the arrest of Jimmy Bowden, blood drawn from Brandon Lyons, extrapolated back to the time of the arrest of Jimmy Bowden, showed Lyons' blood/alcohol level at that time to have been .165 grams (range .145 to .230). By comparison, Jimmy Bowden's subsequent chemical breath test indicated his blood/alcohol level at .107/.096. The testimony of the deputies indicated that although they concluded that Brandon Lyons was not intoxicated, they told him that he should drive his car back to a nearby Circle K at the intersection of Turkey Creek Road and Trapnell Road and use the public telephone there to call for his parents to come get Lyons and Robert and Damon Bowden.

After being temporarily detained at the scene of Jimmy Bowden's arrest, the deputies turned the vehicle over to Brandon Lyons and he, pursuant to the deputies' instructions, proceeded to the Circle K parking lot. After remaining there a few minutes, Lyons decided to drive away. As Lyons was driving away, Deputy Garcia drove through the Circle K parking lot and observed the Lyons vehicle pulling out onto Trapnell Road headed west. For whatever reason, Deputy Garcia immediately gave chase to the Lyons vehicle.

The Garcia vehicle was a 1990, 8 cylinder, 5.0 liter, fuel injected, 170 horsepower Chevrolet Caprice that somehow never caught up with the Lyons 1988 Honda Civic. Deputy Garcia pursued the Lyons vehicle all the way from the Circle K store to the intersection of Trapnell Road and Jerry Smith Road (a distance of approximately 3/4 mile). The Lyons vehicle ran through the stop sign at the intersection of Trapnell Road and Jerry Smith Road, turned right and then proceeded north on Jerry Smith Road with Deputy Garcia in pursuit.

About a half-mile north of Trapnell Road, as Jerry Smith Road curves to the west, the Lyons vehicle failed to make the curve, continued north (off the roadway) and struck several trees. Damon Bowden and Lyons were ejected from the Lyons vehicle, and both Damon and Robert Bowden died as a result of injuries received. At the time of the accident, Deputy Garcia was close enough to view both the crash and the ejection of Damon Lamar Bowden and Lyons from their vehicle. During his pursuit of the Lyons vehicle, Deputy Garcia never activated his emergency lights or his siren. After being hospitalized for the injuries he received, Brandon Lyons could not recall whether he was aware of Deputy Garcia's pursuit.

Appellants filed their action against the appellee sheriff alleging as negligence the deputies' actions at the scene of Jimmy Bowden's arrest in placing a driver (Brandon Lyons) who they knew or should have known was intoxicated in control of the vehicle and allowing him to drive away. Appellants also alleged as negligence in this single-count complaint the pursuit of the Lyons vehicle by Deputy Garcia.

The trial judge, assuming that the deputies knew or should have known that Brandon Lyons was alcohol impaired, granted partial final summary judgment for appellee on the basis of sovereign immunity as to the actions of the deputies in allowing Brandon Lyons to drive away. However, the trial judge allowed appellants to file a third amended complaint in an attempt to state a cause of action for negligent pursuit in accord with City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992). Subsequently, final summary judgment was also rendered for appellee on that third amended complaint, the trial judge finding that appellants' allegations did not fit factually within the confines of City of...