City of Pinellas Park v. Brown, s. 75721

• Decision Date: 23 July 1992
• Docket Number: Nos. 75721,75722 and 75726,s. 75721
• Citation: 604 So.2d 1222
• Parties: 17 Fla. L. Weekly S530 CITY OF PINELLAS PARK, etc., et al., Petitioners, v. Lawrence P. BROWN, et al., Respondents. CITY OF KENNETH CITY, etc., Petitioner, v. Lawrence P. BROWN, et al., Respondents. Everett S. RICE, Sheriff, etc., Petitioner, v. Lawrence P. BROWN, et al., Respondents.
• Court: Florida Supreme Court

Page 1222

604 So.2d 1222

17 Fla. L. Weekly S530

CITY OF PINELLAS PARK, etc., et al., Petitioners, v. Lawrence P. BROWN, et al., Respondents.

CITY OF KENNETH CITY, etc., Petitioner, v. Lawrence P. BROWN, et al., Respondents.

Everett S. RICE, Sheriff, etc., Petitioner, v. Lawrence P. BROWN, et al., Respondents.

Nos. 75721, 75722 and 75726.

Supreme Court of Florida.

July 23, 1992.

Rehearing Denied Sept. 23, 1992.

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

James E. Thompson, George A. Vaka and Hala Mary Ayoub of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for the City of Kenneth City.

Howard M. Bernstein, Sr. Asst. Co. Atty., Clearwater, for Everett S. Rice, Sheriff of Pinellas County.

Steven T. Northcutt of Levine, Hirsch, Segall & Northcutt, P.A., Tampa, for respondents.

KOGAN, Justice.

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, Sec. 3(b)(4), Fla. Const.

After running a red light in Pasadena, Florida, John Deady attempted to elude a sheriff's deputy in a high-speed chase. ¹ 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 sheriff's deputy was joined by at least fourteen and as many as twenty separate police or sheriff's 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 sheriff's deputy, officers from Kenneth City and the City of Pinellas Park also joined. However, most of the officers involved were from the sheriff's department. Id.

At some point, the Pinellas County Sheriff's Department ordered its officers to discontinue the chase. For unknown or unstated reasons, this order was not obeyed. ² 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, Sheriff's 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 Sheriff's 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. ³ 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. ⁴ 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. ⁵ 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. Horne, 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. ⁶ 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...