48 Fla. L. Weekly D721a
THE CITY OF NEW PORT RICHEY, Appellant, v. KOZETA LAMKO and BESSIE TSOULEAS, Appellees. 2nd District. Case No. 2D22-2361. April 12, 2023. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pasco County; Declan P. Mansfield, Judge. Counsel: Sean M. Conahan of Shelton | McKean, St. Petersburg, for Appellant. Charles M. Schropp of Schropp Law Firm, P.A., Tampa; and George Kezemides of George C. Kezemides, P.A., Tarpon Springs, for Appellees.
(SLEET, Judge.) In this interlocutory appeal, the City of New Port Richey (the City) challenges the trial court’s order denying its motion for summary judgment in which it asserted sovereign immunity and granting summary judgment on that issue in favor of plaintiffs below Kozeta Lamko and Bessie Tsouleas. We affirm.1
Lamko and Tsouleas brought a negligence action against the City seeking damages sustained as a result of a high-speed pursuit conducted by officers of the New Port Richey Police Department. According to the summary judgment evidence, which included the deposition testimony of the officer who initiated the pursuit, the officer spotted a white Range Rover that he suspected of a window tint violation. The officer was also aware of reports that a vehicle with a similar description had previously been involved in narcotic sales in the area. But the officer testified at deposition that he did not know whether the Range Rover he witnessed was the same Range Rover involved in the narcotics sales.
The officer executed a U-turn in order to initiate a traffic stop of the Range Rover, but before the officer could complete the U-turn and activate his lights, the Range Rover accelerated and left the area at a high rate of speed. The officer made the decision to activate his lights and pursue the vehicle. Two other officers joined the pursuit. During the pursuit, the Range Rover passed other vehicles in a no-passing zone and on the wrong side of the road, traveled at speeds in excess of 100 miles per hour, and drove directly at another marked police vehicle, forcing that officer to take evasive maneuvers. The initial officer reached a speed of ninety-three miles per hour during the pursuit. The cars were driving eastbound on Louisiana Avenue, which dead ends at Carob Drive, meaning that the pursued vehicle would necessarily have to turn right or left at that intersection.
Thirty to forty seconds into the pursuit, the Range Rover attempted a left-hand turn onto Carob Drive but failed to negotiate the turn and struck two vehicles parked in front of a residence. One of the vehicles in turn hit Lamko, who was in her front yard, pushing her through her closed garage door and pinning her between the door and the vehicle. Tsouleas is the owner of the damaged home, and Lamko was her rental tenant.
The City moved for summary judgment below, arguing (1) that the undisputed evidence did not establish that the City’s officers were the proximate, legal cause of the damage suffered by Lamko and Tsouleas because the pursuit was not conducted in a negligent, careless, and wanton manner and (2) that the decision to initiate the pursuit was a policy-making decision protected by sovereign immunity. In response, Lamko and Tsouleas filed two countermotions for summary judgment. In the first motion, they argued that they were entitled to summary judgment on the issue of the City’s sovereign immunity as a matter of law, citing section 768.28(9)(d)2, Florida Statutes (2016). They maintained that the City could not avoid liability for the damages they suffered because at the time the officer initiated the pursuit, he did not have a reasonable belief that the pursued driver had committed a forcible felony. In their second motion, Lamko and Tsouleas cited section 768.28(9)(d)3 and argued that the City could not avoid liability because the pursuit in this case violated the New Port Richey Police Department’s policy on vehicle pursuits.
Following a hearing, the trial court entered the order on appeal, in which it determined that the City owed Lamko and Tsouleas a duty of care, that the decision on whether and how to pursue was an operational function that is not immune from liability, and that the City was not entitled to avoid liability under section 768.28(9)(d)2 and 3. “We review the court’s denial of the City’s motion for summary judgment based on sovereign immunity de novo.” City of Fort Lauderdale v. Nichols, 246 So. 3d 391, 392 (Fla. 4th DCA 2018) (emphasis omitted).
To state a cause of action for negligence, a plaintiff must allege[ ] (1) the existence of a legal duty owed by the defendant to others, (2) breach of that duty by the defendant, (3) injury to the plaintiff proximately caused by the defendant’s breach, and (4) actual loss or damages resulting from the injury.
McKinley v. Gualtieri, 338 So. 3d 429, 432-33 (Fla. 2d DCA 2022). Accordingly, it must first be determined whether the City owed the plaintiffs a duty of care. See id. at 432; see also Gualtieri v. Pownall, 346 So. 3d 84, 87 (Fla. 2d DCA 2022) (“[T]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances.” (alteration in original) (quoting Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999))). To that end, “[w]here a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty 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.” McKinley, 338 So. 3d at 434 (second alteration in original) (quoting Kaisner v. Kolb, 543 So. 2d 732, 735 (Fla. 1989)); see also Gualtieri, 346 So. 3d at 87.
We agree with the trial court’s determination here that the City owed Lamko and Tsouleas a duty of care because its officers’ actions created a foreseeable zone of risk. The initial officer engaged in a high-speed pursuit that involved speeds in excess of ninety miles per hour and an offender who had demonstrated reckless driving and was rapidly approaching a perpendicular intersection that would require him to make a left- or right-hand turn into a residential neighborhood at that high rate of speed. The officer testified at deposition that he was behind the offender during the entire chase and never lost sight of him and that he was familiar with the streets and knew that the offender was approaching the required turn. Additionally, two other officers joined the pursuit. Under these circumstances, it was clearly foreseeable that the pursuit created a zone of risk for other drivers and residents in the area, and therefore, the City owed those individuals a duty of care.
The next issue to address then is whether the governmental action was a discretionary action of the executive branch that is immune from liability. See Gualtieri, 346 So. 3d at 88. “In order to determine whether an action is barred by sovereign immunity, ‘it is necessary to ascertain the character of the allegedly negligent governmental act or omission.’ ‘[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity.’ ” Id. (alteration in original) (citation omitted) (quoting Pollock v. Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004)); see also Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009) (“[A]rticle II, section 3 of the Florida Constitution (the separation-of-powers provision) requires the judicial application of a discretionary-function exception to the otherwise broad waiver of sovereign immunity present in section 768.28, Florida Statutes.” (citing Com. Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1017-22 (Fla. 1979))).
“Discretionary functions involve ‘an exercise of executive or legislative power such that a court’s intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and planning.’ ” Gualtieri, 346 So. 3d at 88 (quoting City of Freeport v. Beach Cmty. Bank, 108 So. 3d 684, 690 (Fla. 1st DCA 2013)). “Operational functions, on the other hand, are ‘not necessary to or inherent in policy or planning’ and ‘merely reflect[ ] a secondary decision as to how those policies or plans will be implemented.’ ” Id. (quoting City of Freeport, 108 So. 3d at 690). “Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.” Wallace, 3 So. 3d at 1053 (quoting Com. Carrier, 371 So. 2d at 1021).
Again, we agree with the trial court that the officer’s decision to engage in the high-speed pursuit at issue here was operational in nature. The New Port Richey Police Department’s act of creating a policy for high-speed pursuits amounted to a discretionary, planning level function. But the officer’s decision in this case to drive ninety-three miles per hour down a street that he knew would dead end into a residential neighborhood to pursue an offender who was driving 100 miles an hour because that offender may have committed a window tint violation amounted to an operational function. He made in-the-moment decisions on how to implement the policy that was already put in place by his employing agency. Accordingly, the trial court did not err in determining that, under these facts, sovereign immunity could be waived pursuant to section 768.28(9)(d).
Accordingly, we proceed to an analysis of whether, pursuant to section 768.28(9)(d), the City can avoid liability for the physical injury and property damage that resulted from this high-speed pursuit or whether that immunity has indeed been waived. The statute provides as follows:
The employing agency of a law enforcement officer . . . is not liable for injury, death, or property damage effected or caused by a person fleeing from a law enforcement officer in a motor vehicle 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 s. 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.
§ 768.28(9)(d) (emphasis added). Because the statute is written in the conjunctive, all three requirements must be met in order for the employing agency to assert sovereign immunity from liability. Here, the trial court found that at the time the officer initiated the pursuit, he did not have a reasonable belief that the offender had committed a forcible felony. The court also found that the manner in which the pursuit was conducted violated the New Port Richey Police Department’s internal vehicle pursuit policy. Accordingly, the court concluded that sovereign immunity was waived because neither subsection (9)(d)2 nor subsection (9)(d)3 was satisfied
On appeal, the City does not challenge the trial court’s forcible felony finding. Rather, the City argues that the trial court erred in finding that the manner of pursuit in this case violated the internal pursuit policy. The City maintains that “[i]n the context of governmental tort litigation, written agency protocols, procedures, and manuals do not create an independent duty of care.” But the City misunderstands the significance of the trial court’s finding in this regard. The finding was not made in the context of determining whether the City owed Lamko and Tsouleas a duty of care. The trial court had already correctly determined that the City owed that duty because the officers’ actions created a foreseeable zone of risk. As such, the City’s argument is without merit.
Furthermore, the City cannot prevail on its argument that it is entitled to avoid liability under the statute because it does not challenge the trial court’s forcible felony finding. The statute is written in the conjunctive — all three criteria listed in section 768.28(9)(d) must be satisfied. Even were the City to prevail on its challenge of the trial court’s subsection (9)(d)3 finding, its failure to challenge the trial court’s subsection (9)(d)2 finding is fatal to this argument.2
Based on the facts of the instant case, we conclude (1) that the City owed Lamko and Tsouleas a duty of care, (2) that the officer’s decisions on whether and how to conduct this high-speed pursuit were operational in nature and thus not per se immune from liability, and (3) that the City has not satisfied the statutory criteria for avoidance of liability set forth in section 768.28(9)(d). Accordingly, the trial court did not err in denying the City’s motion — and granting Lamko and Tsouleas’ motions — for summary judgment on the issue of sovereign immunity.
Affirmed. (SILBERMAN and VILLANTI, JJ., Concur.)
1We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(F)(iii) (authorizing appellate review of a nonfinal order denying a motion asserting entitlement to sovereign immunity).
2We note that the trial court’s findings regarding section 768.28(9)(d)2 and 3 are supported by the record. In his deposition, the initiating officer testified that he made the decision to stop the Range Rover based on a suspected window tint violation but that he also knew a vehicle matching its description had been involved in narcotics sales in the area. Neither offense is a forcible felony. See § 776.08, Fla. Stat. (2016). The record also indicates that the instant pursuit violated the New Port Richey Police Department’s written vehicle pursuit policy in numerous ways.* * *