Brown ex rel. Estate of Brown v. Jenne
| Decision Date | 01 August 2012 |
| Docket Number | No. 4D10–142.,4D10–142. |
| Citation | 122 So.3d 881 |
| Court | Florida District Court of Appeals |
| Parties | Alverna BROWN, as Personal Representative of the Estate of Oral George BROWN, deceased, and on behalf of the survivors of Oral George Brown, Appellant, v. Kenneth C. JENNE, individually, and in his official capacity as Sheriff of Broward County, Florida, Leonard Smith, Sergeant Todd Chase, Willie Dowe, Kenneth Autenrieb, Eli Thomasevich, Does 1–10, Individually, Broward County Fire Rescue, Kenneth Loukinnen, Hayes C. Bowen, Ken Swan, Ronnie Hall, Karl Froling, Lisa Long, Richard Cabrera, Ken Mckinney, Does 11–20, Individually, Swap Shop Management, LLC, and Broward County, Appellees. |
OPINION TEXT STARTS HERE
Michael Winer of The Law Office of Michael Winer, P.A., Fort Lauderdale, for appellant.
Mark A. Emanuele and Craig S. Dawson of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellees Karl Froling and Kenneth Loukinnen.
David M. DeMaio and Christopher C. Wike of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Miami, for appellee Hayes Bowen.
Chris Kleppin of Glasser, Boreth & Kleppin, Plantation, for appellee Ken Swan.
Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Leonard Smith, Todd Chase, Willie Dowe, Kenneth Autenrieb, and Eli Thomasevich.
On Motion for Hearing
Appellant's Motion for Rehearing is hereby granted. This Court's opinion of November 9, 2011, is hereby vacated and substituted with the following opinion.
Alverna Brown, as Personal Representative of the Estate of Oral George Brown (the “decedent”), appeals from final summary judgments granted in favor of nine different defendants on appellant's claims of violation of Brown's civil rights under 42 U.S.C. § 1983. The nine defendants are five officers with the Broward Sheriff's Office (“BSO”) and four Broward County Fire Rescue (“BCFR”) personnel, all of whom responded to a vehicle rollover crash involving the decedent. The plaintiff claimed that the conduct of both BSO and BCFR in attending to the decedent, who was alive after the crash but subsequently expired at the hospital, violated the decedent's civil rights. The court granted summary judgment to all defendants on the basis of qualified immunity. We reverse as to the BSO personnel, concluding that issues of fact remain as to whether they are entitled to qualified immunity under the facts of this case, and affirm as to the BCFR personnel, as there was no clearly established constitutional right of the decedent that they violated.
This case stems from the decedent's 2001 death, which occurred after he was involved in a one-car rollover crash. BCFR personnel were required to utilize the “Jaws of Life” to help extricate the decedent from the car and lower him to the ground. Both police and fire rescue on the scene felt that the decedent was dazed. He was incoherent, was unresponsive to police commands, and began to walk away. The officers were concerned for his health and safety. He was not suspected of any criminal activity.
Independent eyewitnesses described the decedent after he was extricated from the car as appearing to be in shock, having difficulty breathing, being incoherent, moaning, staggering and leaning against a car as he kept walking around, all the while as officers tried to talk to him to find out what was wrong with him. After five minutes of getting nowhere with him, several officers threw the decedent to the ground; one had his hand on the decedent's head while two other officers were on the decedent's back, pulling his arms behind him to handcuff and ultimately hogtie him. The officers on the decedent's back were telling him to stop flailing his arms, but it did not appear that he understood. The decedent at no time acted aggressively towards police or paramedics. One witness stated that it appeared that the police were rough in handling the decedent because he was not responding to their commands, and not because they needed to immobilize him for treatment.
BCFR paramedics accompanied and attended to the decedent in the ambulance on the way to the hospital. The decedent was placed, still hogtied and face-down, on the stretcher, and then the paramedics put straps across the back of his knees and waist. Their reasoning for leaving him face-down was the difficulty moving him due to his size and weight, and their concern that if he had vomited, his face-down position would allow his airway to drain such that he would not choke. He was having trouble breathing, but he was not given oxygen en route to the hospital.
A few blocks from the hospital, the decedent had a grand mal seizure, with the violent activity typical of such, which lasted approximately one minute. Standard measures to stop the seizure were not attempted.
After the seizure, the decedent was unconscious, breathing deeply, and drooling in a postictal state. The paramedics left the decedent face down and did not then administer oxygen. They were close to the hospital at that time. The decedent died shortly after arriving at the hospital.
The medical examiner found that the decedent died due to positional asphyxia, which led to respiratory and cardiac failure. As the medical examiner explained:
Well, there are multiple factors in the position that he's in. He's on his stomach. He's an obese man. He is in a hogtied position which puts more pressure on his trunk of his body. Not only that, he's also cinched down tightly as described in the record to the gurney which is also compromising his chest. He's not able to move. He's not able to expand his chest fully to breathe.
BCFR also reviewed the incident and issued a memorandum identifying nine issues that cumulatively led to the decedent's death, particularly due to his positioning with handcuffing and failure to properly monitor the decedent during transport to the hospital.
Following the incident, the plaintiff filed an action against the Broward County Sheriff and the BSO and BCFR personnel under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. The BCFR personnel sought to dismiss the complaint, alleging that they were entitled to absolute immunity or, alternatively, qualified immunity. The trial court granted the motion, finding that the BCFR personnel were entitled to absolute immunity. The plaintiff appealed to this court in Brown v. Jenne, 941 So.2d 447 (Fla. 4th DCA 2006), and we reversed, finding that the county personnel were not entitled to absolute immunity. We did not, however, decide the issue of qualified immunity.
On remand, the nine defendants involved in this appeal moved for summary judgment on the grounds of qualified immunity. The trial court found that “all the players were at least performing their job accordingly and they would, therefore, under this section of the federal statute be entitled to qualified immunity.” With respect to the BCFR personnel, the trial court found that “[p]laintiff has not submitted evidence that their actions violated clearly established constitutional and/or statutory law.” This appeal follows.
Orders granting summary judgment are reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). A summary judgment can be affirmed only where there are no genuine issues of material fact and the movant is entitled to a judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). When a defendant moves for summary judgment, the trial court's function is to determine whether the moving party proved the nonexistence of a genuine issue of material fact. Le v. Lighthouse Assocs., Inc., 57 So.3d 283, 285 (Fla. 4th DCA 2011). “ ‘If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” Lindsey, 50 So.3d at 1206 (quoting Bender v. CareGivers of Am., Inc., 42 So.3d 893, 894 (Fla. 4th DCA 2010)). Summary judgment is proper only where the facts are “ ‘so crystallized that nothing remains but questions of law.’ ” Tolan v. Coviello, 50 So.3d 73, 74 (Fla. 4th DCA 2010) (quoting Cohen v. Cooper, 20 So.3d 453, 455 (Fla. 4th DCA 2009)).
“ ‘Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right.’ ” Furtado v. Law, 51 So.3d 1269, 1274 (Fla. 4th DCA 2011) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.2008)). “ ‘[Q]ualified immunity for government officials is the rule, liability and trials for liability the exception.’ ” Fernander v. Bonis, 947 So.2d 584, 588 (Fla. 4th DCA 2007) (quoting Alexander v. Univ. of N. Fla., 39 F.3d 290, 291 (11th Cir.1994)).
The government official has the initial burden of showing that he or she acted within his/her discretionary authority-if the official meets that burden, the burden shifts to the plaintiff to show the lack of good faith on the official's part by demonstrating that his/her conduct violated “clearly established” constitutional rights, of which a reasonable person would have known. Vaughan v. Fla. Dep't of Agric. & Consumer Servs., 920 So.2d 650, 651–52 (Fla. 4th DCA 2005). In other words, first, viewing the evidence in the light most favorable to the plaintiff, the plaintiff must show that the government officials violated a constitutional right; and, second, if such a violation occurred, it must be determined if that right was clearly established at the time of the incident. Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir.2005) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Appellant argues that the BSO officers affected a Fourth Amendment seizure of the decedent by using excessive force when they...
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