City of Miami v. Harris, s. 84-1679

• Decision Date: 17 December 1985
• Docket Number: 84-2525 and 85-1352,Nos. 84-1679,s. 84-1679
• Citation: 490 So.2d 69,10 Fla. L. Weekly 2781
• Parties: 10 Fla. L. Weekly 2781, 11 Fla. L. Weekly 771 The CITY OF MIAMI, Appellant, v. Geneva HARRIS, as Personal Representative of the Estate of Doretha a/k/a Dorothea Rolle, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 69

490 So.2d 69

10 Fla. L. Weekly 2781, 11 Fla. L. Weekly 771

The CITY OF MIAMI, Appellant, v. Geneva HARRIS, as Personal Representative of the Estate of Doretha a/k/a Dorothea Rolle, Deceased, Appellee.

Nos. 84-1679, 84-2525 and 85-1352.

District Court of Appeal of Florida Third District.

Dec. 17, 1985.

On Rehearing April 1, 1986.

On Second Motion for Rehearing

June 3, 1986.

Lucia A. Dougherty, City Atty., and Gisela Cardonne, Deputy City Atty., Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Miami, for appellant.

Feldman & Levy and Donald Feldman, Abramson & Magidson, Miami, for appellee.

Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

When police officers of the City of Miami, in high-speed pursuit of a vehicle being driven by a suspected burglar down a congested street, rammed the fleeing suspect's car, locked fenders with it, and forced it off the road into a bus bench on which Mrs. Doretha Rolle was sitting, Mrs. Rolle was killed. Geneva Harris, Mrs. Rolle's mother and personal representative, brought an action against the City on behalf of the estate and Mrs. Rolle's three minor children, alleging that the City's police officers were negligent and, in a separate count brought under the authority of Title 42 United States Code, Section 1983, that the City's unreasonable policy in regard to pursuit of law violators deprived Mrs. Rolle of her constitutionally guaranteed rights. ¹ A jury returned a verdict for the plaintiffs, finding that the negligence of its officers (for which the City was responsible through the doctrine of respondeat superior) and the City's "inadequate policy in regard to police chases" both were the legal causes of Mrs. Rolle's death. The jury awarded the plaintiffs a total of $595,000 in damages, but was not asked to and did not allocate the damages to one or the other of the causes of action. The trial court entered judgment on the verdict and, after separate hearing, awarded the plaintiffs' attorneys $100,000 in fees under the authority of Title 42 United States Code, Section 1988, which, inter alia, authorizes the award of attorneys' fees to parties prevailing under Section 1983. ² The City appeals.

We affirm the judgment entered on the jury's verdict. We reverse the judgment for attorneys' fees and remand that issue to the trial court for further proceedings and consideration.

The City contends that (1) the plaintiffs failed to sufficiently prove a custom or policy on the part of the City requisite to a finding of liability under Title 42 United States Code, Section 1983; (2) there was not a sufficient predicate to admit the testimony of the plaintiffs' expert on police procedures; (3) the award of attorneys' fees was improper in that (a) the verdict form does not reflect that the plaintiffs were awarded damages for a violation of Section 1983 rather than common law negligence and (b) it was not supported by substantial competent evidence; and (4) the trial court incorrectly instructed the jury. ³ In our view, only the first three of these contentions merit any discussion.

Both parties agree that essential to recovery in a Section 1983 action against a municipality is a showing that the alleged constitutional deprivation flowed from an official policy or custom of the municipality, and that the policy or custom was "the moving force of the constitutional violation." ⁴ Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611, 638 (1978). A finding of a policy or custom is necessary because it shows that the violation was "neither random nor unauthorized, but wholly predictable, authorized and within the power of the [City] to control." Haygood v. Younger, 769 F.2d 1350, 1357 (9th Cir.1985) (en banc). "Proof of a single incident of unconstitutional activity is not sufficient to impose [municipal] liability, ... unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy which policy can be attributed to a municipal policymaker." Oklahoma City v. Tuttle, 471 U.S. ----, ----, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791, 804 (1985).

In the present case, the evidence showed that the City of Miami had in effect at the time of Mrs. Rolle's death express rules and regulations that (a) mandated that its police officers, on pain of disciplinary action against them, pursue fleeing suspects until apprehension, and (b) failed to provide for the abandonment of the pursuit when in the judgment of the officer the continuation of the pursuit would involve a significant risk of injury or death for innocent members of the public or the officer. ⁵ The evidence also revealed that because of this policy, the high-speed chase in the present case continued notwithstanding that, given the speeds and distances involved, innocent people were placed in obvious jeopardy and an innocent person--Mrs. Rolle--was actually killed.

That a policy of reckless disregard for human life is sufficient to sustain a Section 1983 action is clear from Grandstaff v. City of Borger, Texas, 767 F.2d 161 (5th Cir.1985). There the jury found that the defendant-City was grossly negligent in the training of its officers and that, as a result of this negligence, its officers engaged in a shooting barrage which resulted in the death of an innocent victim. The court wrote that:

"[i]f there is a reckless disregard for human life and safety prevalent among the city's police officers which threatens the life and security of those whom they encounter, and if that recklessness is attributable to the instruction or example or acceptance of or by the city policymaker, the policy itself is a repudiation of constitutional rights. Where police officers know at the time they act that their use of deadly force in conscious disregard of the rights and safety of innocent third parties will meet with the approval of city policymakers, the affirmative link/moving force is satisfied."

767 F.2d at 170.

Similarly, the City of Miami in the present case had a policy of pursuing fleeing suspects that failed to take into account the danger to innocent third parties. Moreover, the City's policy provided that an officer who failed to continue pursuit until apprehension would be disciplined. The police officers thus knew when they acted that their use of deadly force in the form of a speeding vehicle which threatened the rights and safety of innocent persons would meet with the approval of, and indeed was required by, the City policymakers. As such, municipal liability under Section 1983 was adequately shown. See also Jamieson v. Shaw, 772 F.2d 1205 (5th Cir.1985) (where police set up deadman roadblock to stop driver of car who sped up and would not stop for police, and who, though known to have mental problems, did not have outstanding arrest warrants, innocent passenger in chased car injured when car crashed into roadblock had standing to sue municipality based on allegation that the police had a practice of ignoring the Fourth Amendment proscription against unreasonable seizures). Accord Trezevant v. Tampa, 741 F.2d 336 (11th Cir.1984) (where plaintiff's wrongful incarceration resulted from procedures which failed to protect constitutional rights, municipal liability is warranted).

The City next argues that the trial court should not have allowed an expert on police procedures called as a witness by the plaintiffs to testify about a safe pursuit policy used by Metropolitan Dade County (a) because the greater size of Dade County's police force (with which the expert was not previously familiar) made its policies not probative of the appropriate City of Miami policy, and (b) because the expert had not listened to the tape of the chase, had not traveled the route of the chase during the same hours or under the same weather conditions, and had no information as to the condition of the police vehicles or the fleeing suspect's vehicle. The record reflects, however, that the expert testified that the difference in size between the two police forces would not in any way affect his opinion, and that he read the transcript of the chase and the testimony of the officers involved, and drove the route of the chase. In our view, any difference between the conditions and the expert's lack of detailed knowledge of the vehicles falls far short of establishing that the expert lacked a sufficient basis for his opinion that the duration and speed of the chase at night on well-populated streets was in reckless disregard of the safety of the public. Cf. Husky Industries, Inc. v. Black, 434 So.2d 988, 993 (Fla. 4th DCA 1983); § 90.705(2), Fla.Stat. (1983). The trial court did not abuse its discretion in ruling that the expert's testimony was admissible.

Lastly, we turn to the City's challenge to the attorneys' fee award. The City contends that the trial court erred by failing to require the jury to apportion the damages found between the negligence and the Section 1983 counts. The City argues that had the jury attributed all of the damages to the common law negligence count, no attorneys' fee award whatsoever would be permissible. We find, however, that the City failed to preserve this point for appeal when it acquiesced in the verdict form used and failed to request a special verdict form. See Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980); Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984). Even as a general verdict must be upheld where there is no error as to at least one of the issues upon which the verdict may have been founded, Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978), so too the attorneys' fees award here must be upheld where it is impossible to ascertain from the verdict form that the damages were not awarded on the count--Section 1983--that would support an attorneys' fee award. Cf. Barhoush v. Louis, 452 So.2d 1075 (Fla. 4th DCA), pet. for rev. dism., 458 So.2d 271 (Fla.1984)....