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Florida First DCA rules that liability of law enforcement agency for injuries caused by motor vehicle pursuit requires proof of officer’s recklessness exceeding gross negligence

On June 12, 2019, in Ross v. City of Jacksonville, No. 1D18-2994, the Florida First DCA considered as a matter of first impression the application of the current version of Section 768.28(9)(d), enacted in 2006 to address the standard of liability of government agencies for injuries caused by law enforcement officers while engaged in motor vehicle pursuits. The plaintiff was struck by a 14-year-old driver who was eluding law enforcement in a high-speed chase that commenced after he exited a driveway, monetarily lost control and nearly hit several pedestrians. The chase reached speeds of 80 miles per hour during its 5.5 mile duration and ended only after an officer threw a “chop stick”, puncturing the suspect’s tires.  The plaintiff’s vehicle was struck by the suspect’s vehicle at some point after the chop sticks were thrown and before the suspect stopped and fled his vehicle.

The plaintiff sued the Jacksonville Sheriff’s Office for conducting an overly aggressive pursuit. Section 768.28(9)(d) provides that an employing agency of a law enforcement officer is not liable if (1) the pursuit is conducted in a manner that does not involve conduct by the officer which is so reckless or wanting in care as to constitute disregard of human life, human rights, safety, or the property of another; (2) at the time the law enforcement officer initiates the pursuit, the officer reasonably believes that the person fleeing has committed a forcible felony as defined in Section 776.08; and (3) the pursuit is conducted by the officer pursuant to a written policy governing high-speed pursuit adopted by the employing agency. The policy must contain specific procedures concerning the proper method to initiate and terminate high-speed pursuit. The law enforcement officer must have received instructional training from the employing agency on the written policy governing high-speed pursuit. 

According to the First DCA, no appellate court in Florida has interpreted subsection (9)(d) of Section 768.28.  However, several cases have interpreted a somewhat similar provision found in subsection (9)(a), which grants immunity from liability and suit to individual state officers, agents, and employees acting within the scope of employment if, inter alia, they do not act “in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”  The First DCA cited  Elliott v. Dugger, 579 So. 2d 827, 830 (Fla. 1st DCA 1991), in which it previously held that acts of gross negligence do not rise to the level of recklessness to violate section 768.28(9)(a).  The First DCA noted that the lesser culpability of gross negligence is defined as “that course of conduct which a reasonable and prudent [person] would know would probably and most likely result in injury to persons or property.” Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959).

Based on the foregoing analysis, the First DCA concluded that if law enforcement officers act grossly negligently, but not so recklessly as to constitute disregard of human life, human rights, safety, or the property of another, neither they nor their employing agency are liable for any injuries they cause as a result of a motor vehicle pursuit. The First DCA noted that pursuits involving speeding on public roads at eighty miles per hour while violating a department policy were deemed not to be negligent in Porter v. State, Dep’t of Agriculture & Consumer Servs., 689 So. 2d 1152 (Fla. 1st DCA 1997), much less rising to a level required to constitute a disregard for human life under section 768.28(9)(d).  The First DCA accordingly affirmed the summary judgment in favor of the defendant.