Lewis v. City of St. Petersburg

• Citation: 260 F.3d 1260
• Decision Date: 06 August 2001
• Docket Number: No. 00-12917,00-12917
• Parties: (11th Cir. 2001) PAMELA LEWIS, individually and as personal representative of the Estate of Tyron Lewis, deceased, Plaintiff-Appellant, v. CITY OF ST. PETERSBURG, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1260

260 F.3d 1260 (11th Cir. 2001)

PAMELA LEWIS, individually and as personal representative of the Estate of Tyron Lewis, deceased, Plaintiff-Appellant, v. CITY OF ST. PETERSBURG, Defendant-Appellee.

No. 00-12917

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 6, 2001

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK and BARKETT, Circuit Judges, and HOBBS^*, District Judge.

BARKETT, Circuit Judge:

Pamela Lewis, as personal representative of the Estate of TyRon Lewis, appeals the dismissal of her suit against the City of St. Petersburg (the "City") brought pursuant to Florida's Wrongful Death Act, Fla. Stat. §§ 768.16 - 768.27, alleging causes of action for negligent use of a firearm and for negligent training. In addition to her state law claims, Lewis raised a federal claim under 42 U.S.C. § 1983. The district court also dismissed the federal claim; however, Lewis does not appeal this dismissal. On appeal, Lewis argues that the district court misapplied Florida law in dismissing her state law claims. We affirm in part and reverse and remand in part.

Lewis's Fourth Amended Complaint alleges that on October 24, 1996, James Knight and Sandra Minor, both City of St. Petersburg police officers, fatally shot TyRon Lewis through the windshield of his vehicle while he was stopped at an intersection. The complaint further alleges that Knight and Minor and other officers of the St. Petersburg Police Department breached the duty of care owed to Lewis "by discharging their firearms through a vehicle windshield and otherwise conducting themselves in a careless and negligent manner as to directly and proximately cause the death of TyRon Lewis," and that the City breached a duty of care owed to Lewis by "failing to properly train its officers in how to handle a crisis management situation and failing to train its officers regarding the proper use of force in a crisis management situation."

The district court dismissed the negligent use of a firearm claim, holding that the complaint failed to state a claim because Lewis was alleging the negligent commission of an intentional tort and, alternatively, that sovereign immunity bars this claim. The district court also dismissed Lewis's negligent training claim finding that the City owed no duty specific to TyRon Lewis to train its police officers and, alternatively, that the City is protected from suit by sovereign immunity. This appeal followed.

We review the dismissal of a complaint de novo, construing all allegations in the complaint as true and in the light most favorable to the plaintiff. See Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir. 1999). Dismissal for failure to state a claim is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the [plaintiff's] allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

1.Negligent Use of a Firearm

To state a claim for negligence under Florida law, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to suffer damages. Paterson v. Deeb, 472 So. 2d 1210, 1214 (Fla. Dist. Ct. App. 1985). In this case, Lewis sued the City of St. Petersburg, based upon the alleged negligent actions of its agents, the police officers. The State of Florida and its subsidiaries -- including municipalities -- are generally immune from tort liability, see Fla. Const., Art. X, § 13, however, Florida has waived this immunity "under circumstances in which the state or agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state."¹ Fla. Stat. § 768.28(1). At the same time, even if the claim contained sufficient allegations of tort liability under which a private person would be liable, the waiver of sovereign immunity would still not apply if the challenged acts of the state agent were "discretionary" governmental acts rather than merely "operational" ones. The district court in this case dismissed Lewis's claim on two grounds: (1) one of the elements of a tort under Florida law, the existence of the duty of care owed, could not be alleged by Lewis, and (2) the acts were "discretionary" and not "operational."

When a state or its subsidiary is sued in negligence, a court should first determine whether the circumstances alleged would subject a private person to liability under Florida law. Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989) ("the question of the applicability of [sovereign] . . . immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity") (internal quotations omitted). If a court is satisfied that a duty of care is owed to the plaintiff, the court must still determine whether the challenged actions are nonetheless acts which required the exercise of basic governmental discretion, as opposed to the implementation of an already established policy. Accordingly, even if a plaintiff has adequately alleged all of the elements of a negligence claim, including the breach of a common law duty, immunity would still bar the claim if the challenged act were deemed to be governmentally "discretionary" in nature, and not merely "operational." See id. at 737. Under this framework, we first address whether the plaintiff has adequately alleged that a common law duty exists, and then whether the claim is nonetheless barred by the "discretionary" act exception to the waiver of sovereign immunity.

In Florida, when a "defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty [to all within the zone] placed upon [the] defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." Id. at 735; see also Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999); McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992); City of Pinellas Park v. Brown, 604 So. 2d 1222, 1225 (Fla. 1992). This analysis applies equally to the actions of both public and private defendants. See Kaisner, 543 So. 2d at 735-36 ("We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police.").

Here, the district court, erroneously read Kaisner, to hold that a duty of care only arises in those situations in which an officer places an individual in custody. The rationale of Kaisner makes clear that it does not limit application of the "zone of risk" analysis to situations in which the plaintiff is in custody, but rather is simply an application of the test to the particular set of facts presented in that case. Indeed, in subsequent cases, the Florida Supreme Court applied the "zone of risk" analysis to individuals not in custody. See, e.g., Brown, 604 So. 2d at 1225 (recognizing that officers owe a duty of care to innocent bystanders or third parties injured as the result of high speed car chases of fleeing suspects). Thus, reiterating Florida law, when a defendant, including a police officer, by his or her conduct creates a foreseeable zone of risk, the law imposes a duty owed by the defendant to all individuals within the zone to act with reasonable care. The complaint sufficiently alleges that Knight and Minor placed Lewis in a "zone of risk," and thus owed him and others within that zone of risk a specific duty to exercise reasonable care, when they drew and raised their weapons.

We find unpersuasive the City's argument that under Seguine v. City of Miami, 627 So. 2d 14, 16-18 (Fla. Dist. Ct. App. 1993), an officer's decision to arrest is not susceptible to suit for negligence. Lewis, does not challenge the officers' decision to arrest, but rather bases her suit upon the actions that occurred after the initial decision to arrest was made. Florida case law provides that these actions may give rise to tort liability. See, e.g., Kaisner, 543 So. 2d at 735-36.

The City alternatively argues that even if a duty of care did arise, dismissal of the claim is still appropriate because Florida law does not permit a cause of action for "negligent use of excessive force." See City of Miami v. Sanders, 672 So. 2d 46, 47-48 (Fla. Dist. Ct. App. 1996) ("it is not possible to have a cause of action for 'negligent' use of excessive force because there is no such thing as the 'negligent' commission of an 'intentional' tort"). Florida law, however, clearly recognizes a cause of action for the negligent handling of a firearm and the negligent decision to use a firearm separate and distinct from an excessive force claim. As the state court in Sanders recognized:

[A] separate negligence claim based upon a distinct act of negligence may be brought against a police officer in conjunction with a claim for excessive use of force. Nevertheless, the negligence component must pertain to something other than the actual application of force during the course of the arrest.

Id. at 48 (internal citations omitted). See Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, 468 So. 2d 912, 920 (Fla. 1985) (recognizing that existing common law duties of care are applicable to government officials and employees in the operation of motor vehicles and the handling of firearms during the course of their employment to enforce compliance with the law); Mazzilli v. Doud, 485 So. 2d 477 (Fla. Dist. Ct. App. 1986) (upholding negligence claims arising from law enforcement failure to exercise reasonable care when utilizing firearms where police officer arrived at the scene of a Drug Enforcement Agency arrest and fired at an undercover agent and admitted at trial that he did not know who was there but believed that someone was committing a felony).

Here, the complaint alleges that Knight and Minor acted negligently in...