Law Enforcement Liability For Injuries Arising Out of High-Speed Vehicle Pursuits

A plaintiff seeking to hold a law enforcement agency liable for injuries resulting from a high speed vehicle pursuit confronts an onerous burden of proof under Florida law. While law enforcement agencies employed by government entities are generally entitled to sovereign immunity, Fla. Stat. §768.28(9)(d) provides for a limited waiver of sovereign immunity in tort actions. Manfre v. Shinkle, 184 So. 3d 641, 644-45 (Fla. 5th DCA 2016) (citing Henderson v. Bowden, 737 So. 2d 532, 534-35 (Fla. 1999)). The determination of whether sovereign immunity bars the plaintiff’s action is predicated on the existence of a duty of care. Id. at 1045; Wallace v. Dean, 3 So. 3d 1035, 1044-45 (Fla.1999) (other internal citations omitted). In the realm of tort law, existence of a duty of care functions as a “minimal threshold legal requirement for opening the courthouse doors.” Manfre, 184 So. 3d at 645 (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla.1992)). This element has equal importance in negligence cases against government entities. Id. (citing Wallace, 30 So. 3d at 1047).

Fla. Stat. § 768.28(9)(d)

Under Fla. Stat. § 768.28(9)(d), 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.

Fla. Stat. §768.28(9)(d).

Regarding subsection (1) of the statute, “[t]he liability of a law enforcement agency for injury caused during a high speed chase depends on the manner in which the case was conducted.” Porter v. State, Dept. of Agriculture and Consumer Services, 689 So. 2d 1152, 1155 (Fla. 1st DCA 1997) (holding that “the act of engaging in a high speed chase is not in itself a basis to impose civil liability” and affirming summary judgment for the defendant law enforcement agencies)).

While initiation of a high speed pursuit may not be justified in every circumstance, subsection (2) of the statute provides that a law enforcement agency will be immune from liability if the pursuit is prompted by a reasonable belief that the person fleeing has committed a forcible felony as defined in Fla. Stat. § 776.08. Fla. Stat. §768.28(9)(d)(2). Therefore, immunity will not shield the law enforcement agency from liability if the pursuit stemmed from a petty shoplifting or other such non-violent offense.

Moreover, satisfaction of the criteria contained in subsection (3) of the statute requires the law enforcement agency to demonstrate that it had written procedures in place regarding the conduct of high speed pursuits. Fla. Stat. §768.28(9)(d)(3). In addition, the officer(s) involved in the pursuit must have received instruction as to these procedures and understood them. Id.

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¹ Under this statute, “forcible felony” means “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”