Brown v. City of Pinellas Park

• Decision Date: 16 February 1990
• Docket Number: No. 89-01342,89-01342
• Citation: 557 So.2d 161
• Parties: 15 Fla. L. Weekly D468 Lawrence P. BROWN and Ada L. Brown, as personal representatives of the estates of Judith A. Brown, deceased, and Susan A. Brown, deceased, and on behalf of survivors, Lawrence P. Brown and Ada L. Brown, individually, as parents of Judith A. Brown, deceased, and Susan A. Brown, deceased, Appellants, v. CITY OF PINELLAS PARK, a municipal corporation, City of Kenneth City, a municipal corporation, and Everett S. Rice, as Sheriff of Pinellas County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 161

557 So.2d 161

15 Fla. L. Weekly D468

Lawrence P. BROWN and Ada L. Brown, as personal representatives of the estates of Judith A. Brown, deceased, and Susan A. Brown, deceased, and on behalf of survivors, Lawrence P. Brown and Ada L. Brown, individually, as parents of Judith A. Brown, deceased, and Susan A. Brown, deceased, Appellants, v. CITY OF PINELLAS PARK, a municipal corporation, City of Kenneth City, a municipal corporation, and Everett S. Rice, as Sheriff of Pinellas County, Florida, Appellees.

No. 89-01342.

District Court of Appeal of Florida,

Second District.

Feb. 16, 1990.

Stevan T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., Tampa, for appellants.

C. Wade Yeakle, III of Yeakle and Watson, P.A., St. Petersburg, for appellee City of Pinellas Park.

James E. Thompson of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellee City of Kenneth City.

Susan H. Churuti, Co. Atty., and Howard M. Bernstein, Senior Asst. Co. Atty., Clearwater, for appellee Everett S. Rice.

LEHAN, Acting Chief Judge.

This appeal is from the dismissal with prejudice of appellants' second amended complaint for wrongful death. The dismissed complaint alleged negligence of law enforcement officers in their motor vehicle pursuit of a lawbreaker which led to the deaths of two innocent bystanders. We reverse.

Appellants, as the parents and personal representatives of the estates of decedents Judith A. Brown and Susan A. Brown, filed suit against appellees, the Pinellas County Sheriff's Department, the City of Pinellas Park, and Kenneth City. The second amended complaint alleged that various law enforcement officers employed by the three different appellees negligently and carelessly conducted a high speed pursuit of a traffic law violator named John Deady after he had driven through a red light. It is alleged that the pursuit caused the deaths of appellants' decedents when Deady's vehicle broadsided their vehicle as it was crossing an intersection.

The three appellees moved to dismiss, arguing that (1) no duty was owed to the decedents which was breached by the officers, (2) the appellees are protected by the doctrine of sovereign immunity, and (3) the deaths were proximately caused by Deady, not the officers. The trial court granted the motions and dismissed the second amended complaint with prejudice. Appellants' three points on appeal dispute the validity of each of appellees' foregoing three arguments.

We agree with appellants as to each of the points on appeal. In summary, we hold that allegations of

--a continued, high speed, night, vehicular pursuit covering a total distance of over twenty-five miles in a densely populated area

--by law enforcement personnel ultimately totaling fifteen officers

--of a person who had run a red light and who during the pursuit disregarded approximately thirty-four traffic control signals before his disregard of the next one resulted in his vehicle colliding at an intersection with a vehicle occupied by appellants' decedents

pleaded a breach of duty owed by the officers to innocent bystanders like appellants' decedents to which the doctrine of sovereign immunity does not apply. While the mere initiation of such a pursuit, i.e., the fact of there being a pursuit which results in injuries to innocent bystanders, is not actionable, the manner of its continuation may be actionable under circumstances like those here which are alleged to have put the pursuing officers on clear notice of impending danger to innocent bystanders which could have been avoided by terminating the pursuit. Also, allegations of the failure of one of the officers to warn appellants' decedents of the impending danger when, under circumstances described below, he had the opportunity to do so and was on clear notice that they were about to be exposed to the danger pleaded a breach of duty on his part to which the doctrine of sovereign immunity does not apply. We further hold that whether the deaths were proximately caused by Deady, not the officers, or any of them, is for the jury to decide.

Thus, we conclude that the second amended complaint should not have been dismissed. The effect of our reversal at this pleadings stage is, of course, only that appellants shall not be precluded as a matter of law from having the opportunity to establish their case by proving their allegations.

The facts of this case are unusual, and applicable case law as a whole has been somewhat imprecise and in some cases susceptible of differing interpretations. Therefore, to explain our reversal adequately it is necessary to spell out our reasoning. In so doing the remainder of this opinion is organized as follows: I., a full description of the alleged facts; II., an analysis of applicable case law; and, III., an outline of policy considerations and reasons why Florida Supreme Court review of this case appears appropriate.

We have restricted case law analysis essentially to A. the case containing the most recent Florida Supreme Court pronouncements of the broad principles governing particularly the first two points on appeal concerning duty and sovereign immunity, Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), B. factually analogous Florida appellate cases, i.e., those involving law enforcement motor vehicle pursuits of lawbreakers resulting in injury or death to innocent bystanders, and C. authority that the proximate cause issue of the third point on appeal is for the jury.

I. FACTS

A rather full description of the alleged facts is appropriate to show why this case is different in our view from all reported Florida cases in which governmental entities have been sued for motor vehicle pursuits by law enforcement officers of lawbreakers which resulted in injury or death to innocent bystanders. The reason is that the alleged facts of this case present a more egregious case for governmental liability than do those shown by the opinions in any of the other such cases, whether the results thereof were for or against liability. Accordingly, all factually analogous Florida case law is, we conclude, either fully supportive of or reconcilable with our reversal, as will be explained in section II below.

The second amended complaint, which for purposes of the motions to dismiss must be accepted as true, alleges the following facts.

On June 24, 1984, shortly before 1:00 a.m., John Deady drove through a red light at the intersection of Pasadena Avenue and Park Street in Pasadena, Florida. Pinellas County Sheriff's Deputy Kenneth Rico witnessed the offense and gave chase north on Pasadena Avenue. The two sped past the merger of Pasadena Avenue and 66th Street, continuing north.

Near the intersection of 66th Street and 38th Avenue in Kenneth City, a Kenneth City police officer and two more sheriff's deputies joined the pursuit, each in a different car. Disregarding traffic lights, the group sped northbound on 66th Street, allegedly a busy road. The speeding caravan picked up another Kenneth City officer at 54th Avenue and crossed into the city of Pinellas Park, where a police officer from that city joined the pursuit. Deady and his pursuers, then numbering six, continued rapidly due north on 66th Street.

Another Pinellas Park officer joined the pursuit at Park Boulevard and yet another joined at 102nd Avenue. Three more sheriff's deputies joined at Bryan Dairy Road, 118th Avenue, and State Road 688, respectively. The caravan, then including eleven officers, approached the merger of 66th Street and U.S. 19 at speeds from 80 to 120 miles per hour. When the caravan entered U.S. 19 and passed Enterprise Road and then State Road 586, an additional sheriff's deputy joined in at each intersection.

By 1:07 a.m., approximately thirteen minutes after Deady had initially run the red light at Pasadena Avenue and Park Street, the pursuers, then including fourteen law enforcement officers, continued after Deady north on U.S. 19 toward its intersection with State Road 584.

Waiting at the intersection of U.S. 19 and State Road 584 in his unmarked patrol car to join in active pursuit was Sheriff's Corporal Daniel Rusher. Rusher, whose vehicle was in the westbound, right-turn lane of State Road 584 facing a red light, had been alerted to the pursuit by radio. In the lane to his left, the through lane, another vehicle was waiting for the light to change and was observed by Rusher. When the light turned green, Rusher made a right turn onto U.S. 19, positioning himself to follow when Deady passed. As the other vehicle proceeded to cross the intersection, Deady's vehicle ran the red light and struck the other vehicle broadside at about 90 miles per hour. Deady died instantly, as did twenty-three year old Susan Brown, an occupant of the other vehicle. Susan's twenty year old sister Judith, another such occupant, died three days later.

It is alleged that the pursuit had "covered a distance in excess of 25 miles through a densely populated urban area on highways generally frequented by heavy vehicular traffic ... throughmore [sic] than 34 traffic control devices in disregard of the signals in effect...."

It is further alleged that "an order to terminate the pursuit had been given by a supervisor [apparently employed by the Pinellas County Sheriff's Department] which was disregarded...." There is no allegation as to who heard, or should have heard, the order; as to whether the order was, or could have been, heard by officers other than those employed by the governmental entity which employed the supervisor; and at what point during the pursuit the order was given.

II. CASE LAW

In reversing we rely, as we have said, upon A. the Florida Supreme Court's recent decision in Kaisner, and B. cases involving law enforcement motor vehicle pursuits of lawbreakers which resulted in injury or death to innocent bystanders. The basic, underlying rationale for our reversal is that the second amended complaint may be taken to allege the...