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Immune? Not so fast…
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 43
OCTOBER 25, 2024
APPELLATE COURT UPHOLDS DENIAL OF THE CITY’S SUMMARY JUDGMENT MOTION, AGREEING THAT GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO SECTION 768.28(9)(D) ADDRESSING HIGH SPEED POLICE CHASES
City of Tampa v. Foottit, 49 Fla. L. Weekly D2074 (Fla. Oct. 16, 2024):
A Tampa Police Department officer was on patrol when he received a dispatch alert about a stolen Nissan truck. The dispatch was for a “signal 10,” indicating an automobile theft. A “signal 21” is the code for burglary, and while the officer did not hear that, he “understood” it to involve burglary.
The officer noticed the identified truck pass by him and began to chase the driver. The chase lasted approximately 14 minutes and went 19 miles, going beyond the city limits of Tampa and reaching speeds between 75 and 105 MPH. The officer ran through three or four red traffic signals and had no backup officers to assist him.
The chase ended when the fleeing truck collided into the rear of another vehicle, killing one person and injuring two others.
The city moved for summary judgment based on sovereign immunity under section 768.28(9)(d). In support of its motion, the city submitted the affidavit of the officer and a copy of its vehicle pursuit policy.
The plaintiff submitted the affidavit of a police practices expert who opined that the officer’s actions fell so far below an acceptable safe police practice for a vehicular pursuit, that it was “reckless,” and that the officer could not have had a reasonable belief that the Nissan driver had committed a forcible felony.
Section 768.28(9)(d) addresses high speed chases of law enforcement officers and provides a three prong test for sovereign immunity. The first prong asks whether the pursuit was conducted in a manner involving conduct which is so reckless or wanting in care as to constitute a disregard of human life and safety; the second is whether at the time the law enforcement officer initiated the pursuit, the officer reasonably believed that the person fleeing had committed a forcible felony as defined by statute; and the third asks whether the pursuit had been conducted by the officer pursuant to a written policy governing high speed pursuit adopted by the employing agency.
Analyzing the evidence presented in accordance with those three prongs, the court found that the trial judge properly concluded that there were genuine issues of material fact precluding summary judgment.
A PARTY WHO BELIEVES THE TRIAL COURT HAS SET A TRIAL IN AN UNTIMELY MANNER, MUST OBJECT
Cruz v. Clyne, 49 FL A. L. Weekly D2093 (FLA. 3rd DCA Oct. 16, 2024):
The plaintiff’s lawsuit was pending for over six years when on March 29, 2023, the plaintiff filed a notice of trial readiness.
On April 24, 2023, the trial court set the matter for trial on May 15, 2023, violating Rule 1.440(c)’s requirement that the trial be set no sooner than 30 days from the date of the notice.
The plaintiff filed no written objection to the trial date and instead issued subpoenas for trial testimony. When the trial court convened for the trial, the trial court announced its intention to dismiss the case because the plaintiff failed to appear. However, his counsel still failed to object pursuant to 1.440.
Instead, counsel requested that the trial court either proceed in the plaintiff’s absence or that the lower court continue the trial. Under those facts, the court found the plaintiff waived his objections.
The plaintiff also argued that the trial court committed a reversible error in failing to make express written findings that the plaintiff’s failure to appear was done willfully or with deliberate disregard of the court’s authority. As the plaintiff also failed to raise this issue timely in a Rule 1.530 motion for rehearing, he waived his right to appeal the decision, resulting in affirmance of the final judgment against the plaintiff.
TRIAL COURT ERRED IN CONCLUDING THAT PLAINTIFF HAD MADE A SUFFICIENT PROFFER TO ENTITLE HER TO SEEK PUNITIVE DAMAGES AT TRIAL
McLane Food Service, Inc. v. Wool, 49 FL A. L. Weekly D2106 (Fla. 3rd DCA Oct. 9, 2024):
The plaintiff, an employee of a KFC restaurant, sued McLane Food Service and the delivery driver for McLane. The plaintiff alleged she was injured while unstacking boxes of frozen chicken delivered and stacked by the driver that collapsed on her.