Loomis v. Howell

• Decision Date: 28 August 1992
• Docket Number: No. 91-1800,91-1800
• Parties: Deborah Anne LOOMIS and Sandra J. Loomis, Appellants, v. James D. HOWELL, an individual; One Seagrove Place Owner's Association, Inc., a corporation, Appellees. 604 So.2d 1241, 17 Fla. L. Week. D2021
• Court: Florida District Court of Appeals

Page 1241

604 So.2d 1241

Deborah Anne LOOMIS and Sandra J. Loomis, Appellants, v. James D. HOWELL, an individual; One Seagrove Place Owner's

Association, Inc., a corporation, Appellees.

No. 91-1800.

604 So.2d 1241, 17 Fla. L. Week. D2021

District Court of Appeal of Florida,

First District.

Aug. 28, 1992.

James Harvey Tipler, Fort Walton Beach, for appellants.

Marcia Davis of Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City, for appellees.

WOLF, Judge.

Deborah Anne Loomis and Sandra J. Loomis appeal from a partial final summary judgment entered in favor of two defendants, James D. Howell and One Seagrove Place Owner's Association, Inc. We find that genuine issues of material fact exist which preclude entry of a summary judgment, and we reverse.

The appellants, who were the plaintiffs in the trial court, filed a negligence action as a result of an automobile collision which occurred on October 1, 1986. Deborah Anne Loomis was the driver of a vehicle in which Sandra J. Loomis was a passenger when the Loomis vehicle collided with another vehicle. The second vehicle was being driven by Simmons, and was occupied by others who were fleeing from a condominium known as One Seagrove Place. The fleeing parties were alleged to have committed criminal mischief at the condominium. The cause of action against appellees was based upon Howell's attempt to apprehend the suspected vandals. Affidavits and depositions presented in conjunction with the motion for summary judgment, reveal the following facts which are essentially undisputed: Believing that One Seagrove Place was being vandalized by persons later identified as Simmons, Somerset, and Dainard, Ms. Brewer, an employee of One Seagrove Place, called the appellee, James Howell, a member of the board of the homeowners' association, for his assistance in attempting to apprehend the individuals; Howell met the suspected vandals in the elevator and held them at gunpoint with a cocked revolver; after they reached the ground floor, Howell's attention was distracted and the three men broke and ran.

The separate versions of what occurred next are materially different. According to Simmons, he ran out of the building and headed for his car which was in the parking lot of One Seagrove Place. As he ran, he heard a gunshot fired behind him. When Simmons reached his car, Terri Brewer's husband was standing near it, Simmons pushed him out of the way and jumped into his car. At that point, Howell ran up to the driver's side of Simmons' car, and stopped approximately six feet away. Howell yelled to Simmons to stop or he would "blow [his] damn head off." Before Simmons could even turn off the ignition of his vehicle, Howell fired his revolver into the side of Simmons' vehicle. Simmons immediately put the vehicle into gear and began to leave the parking lot at a high rate of speed. Simmons saw and heard Howell fire at least two more shots in his direction. As Simmons entered the highway, he was looking into his rear view mirror at Howell, who continued to fire his weapon.

According to Howell, the following occurred when the elevator doors opened. The three vandals bolted and ran in different directions. Howell pursued the two who ran through the south door, while the Brewers followed the other, who was later identified as Simmons. Simmons ran through the parking lot towards his car. Dan Brewer lunged at the car door handle to stave off Simmons' escape, but to no avail. Simmons started the car and recklessly backed out of the parking space, nearly striking Terri Brewer. Simmons then threw the car into gear and sped out of the parking lot, engine revving and tires squealing.

Howell also stated that as Simmons made his getaway towards the access road leading to Highway 30-A, Howell arrived in the parking lot. Realizing that Simmons was ignoring Brewer's repeated orders to stop, Howell knelt and fired a shot in the direction of the rear of the car. The shot had no effect on bringing the car to a stop. Simmons continued his escape by careening down the access road. Upon reaching the intersection of the access road and Highway 30-A, Simmons did not stop, but instead proceeded into the intersection driving on the wrong side of the road toward the Loomises' vehicle which was headed westbound on Highway 30-A. The cars then collided. Howell stated that the collision occurred due to Simmons' reckless failure to stop or brake and due to his negligence by driving on the wrong side of the road.

Based upon these events, the appellants sought damages against the appellees. In their original and amended complaints, appellants alleged that the appellee Howell's conduct in attempting to apprehend Simmons and the others was unwarranted and was, in fact, negligent and wanton. Appellants further alleged that Howell's negligent and wanton conduct in repeatedly firing the revolver at Simmons' vehicle caused him to flee at a high rate of speed and to thereby drive into the path of, and to collide with, the vehicle occupied by the appellants. Appellants also alleged that One Seagrove Place was vicariously liable for the acts of its agent, Howell.

In their motion for summary judgment, Howell and One Seagrove Place argued that (a) Howell's conduct on the occasion in question was reasonable; and (b) the consequences of Howell's conduct were not foreseeable and, therefore, not the proximate cause of appellants' injuries. In addition, at the hearing on the motion for summary judgment, Howell and One Seagrove Place argued that Simmons, Somerset, and Dainard's acts of criminal trespass, and Simmons' fleeing, were legally sufficient intervening causes of appellants' injuries which would insulate Howell and One Seagrove Place from liability.

On October 25, 1989, the trial court, without opinion, granted the motion for summary judgment of Howell and One Seagrove Place.

In U-Haul Co. of East Bay v. Meyer, 586 So.2d 1327 (Fla. 1st DCA 1991), this court stated the general principles concerning the granting of summary judgments in negligence actions:

'[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.' Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Further caution should be exercised with respect to a grant of summary judgment in negligence actions. Id. See also Unijax, Inc. v. Factory Insurance Assoc., 328 So.2d 448, 449 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976).

586 So.2d at 1330.

In this case, there are genuine issues of material fact as to whether the appellant's use of a loaded firearm was reasonable and justified under the circumstances. In Nelson By & Through Bowens v. Howell, 455 So.2d 608 (Fla. 2d DCA 1984), the issue was whether a private citizen was justified in using deadly force to prevent escape from his custody of a fleeing felon. The...