FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2994

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DAVID L. ROSS,

Appellant,

v.

CITY OF JACKSONVILLE,

Appellee.

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On appeal from the Circuit Court for Duval County.

Kevin Blazs, Judge.

June 12, 2019

B.L. THOMAS, C.J.

David Ross appeals the trial court’s order which granted 

summary judgment to the City of Jacksonville. The order ruled 

that the city was not liable for injuries sustained by Appellant, 

whose vehicle was struck by a fleeing suspect eluding lawenforcement officer. The action arose when the suspect, a 

fourteen-year-old driver, sped out of a driveway, momentarily 

losing control, and drove directly toward several pedestrians who 

barely managed to avoid the car and escape serious injury. 

Appellant sued the Jacksonville Sheriff’s Office alleging that the 

officers’ overly aggressive pursuit breached their duty to conduct 

law enforcement activities in a manner that does not needlessly 

endanger Duval County citizens. 

Appellee filed a motion for summary judgment, arguing that 

the city was immune from suit under section 768.28(9)(d)(1), 
2

Florida Statutes. That statute provides that the employing agency 

of a law enforcement officer is not liable for injuries caused by a 

person being pursued by law enforcement, if 1) the pursuing 

officers did not act in a manner “which is so reckless or wanting in 

care as to constitute a disregard of human life, human rights, 

safety, or the property of another”; 2) the pursuing officers who 

initiated pursuit reasonably believed the person fleeing had 

committed a forcible felony as defined in section 776.08, Florida 

Statutes; and 3) the pursuit was conducted in accord with a written 

agency policy that “contain[ed] specific procedures concerning the 

proper method to initiate and terminate high-speed pursuit (and 

the) law enforcement officer ...received instructional training” on 

the policy. 

Appellee attached to the motion an affidavit from the officer 

who initiated the pursuit, in which the officer stated that he saw a 

vehicle speed out of a driveway, causing the front end of the vehicle 

to spin around and causing three or four pedestrians in front of the 

driveway to jump to avoid being hit by the vehicle. Appellee also 

attached an operational order describing the Jacksonville Sheriff’s 

policy for vehicle pursuits. In addition, the City provided an 

affidavit from another sheriff’s officer stating that after reviewing 

the pursuing officer’s report, he determined that the pursuit was 

conducted in compliance with the Sheriff’s Office’s standards. 

At the summary judgment hearing, Appellee described the 

route of the pursuit based on the vehicle-pursuit report. After the 

initial officer began pursuit, the suspect continued driving down 

side streets, passing other pedestrians who also jumped out of the 

way, before the first officer lost sight of the driver and radioed 

other officers to look for the fleeing car. The suspect and law 

enforcement reached speeds of eighty miles per hour. The car 

made a U-turn and drove on pedestrian sidewalks, hit a vehicle 

and continued driving before another officer threw a “stop stick” to 

puncture the tires of the fleeing car. The fleeing car hit Appellee’s 

car, and the driver of the fleeing car got out and ran before being 

apprehended by the officer who initiated the pursuit. The pursuit 

covered a total of 5.5 miles. Appellee noted that the officer 

indicated in the report that he initiated pursuit because the driver 

committed “Felony, fleeing, eluding and reckless driving.” 
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The trial court found that the evidence viewed in the light 

most favorable to Appellant did not establish that the pursuit was 

conducted in a manner so reckless and wanton as to constitute a 

disregard for human life, “[g]iven the limited distance, brief 

duration, and the exercise of judgment by [the initial officer] . . . in 

his decision to terminate and then reinitiate pursuit in cooperation 

with other officers.” The court also found that the initial officer 

pursued the driver because he saw the car almost strike 

pedestrians, and thus the driver witnessed an aggravated assault, 

a forcible felony. The court found that the Jacksonville Sheriff’s 

Office’s vehicle-pursuit policies contained detailed provisions on 

initiating and terminating pursuit, and there was no factual 

dispute regarding these policies. The court ruled that Appellee 

was not liable for Appellant’s injury under section 768.28(9)(d), 

Florida Statutes, and because there were no genuine issue of 

material disputed fact, the court granted Appellee’s motion for 

summary judgment. 

Analysis

“Summary judgment is proper if there is no genuine issue of 

material fact and if the moving party is entitled to a judgment as 

a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 

760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms West 

Condominium Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999)). Thus, our 

standard of review is de novo. Id.

Appellant first asserts that a material factual dispute existed 

as to whether the initial officer acted so recklessly or in a manner 

“wanting in care as to constitute a disregard of human life, human 

rights, safety or the property of another.” Section 768.28(9) (d)(1), 

Florida Statutes. Appellee argues that the undisputed facts do not 

establish that the pursuit was so reckless as to constitute a 

disregard for human life as so described in the controlling statute. 

The question of whether an officer acted with disregard for 

human rights may be answered summarily as a question of law, or 

decided by a trier of fact, depending on the facts presented. See 

McGhee v. Volusia Cty., 679 So. 2d 729, 733 n.7 (Fla. 1996) (holding 

that “the question must be put to the fact-finder whether [a 

sheriff’s deputy] acted in bad faith, with malicious purpose, or in a 

manner exhibiting wanton or willful disregard of human rights, 
4

safety, or property” but noting “that this holding is based on the 

questions presented by the facts at hand. There may be cases in 

which summary dismissal would be proper based on different 

facts”).

The current version of section 768.28(9)(d) was enacted in 

2006. Ch. 2006-234, Laws of Fla. No appellate court has 

interpreted that section. Section 768.22(9)(a), a similar provision, 

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.” While this 

language is slightly different from the language of subsection 

768.28(9)(d)(1), both subsections provide immunity on similar 

bases, that is, whether the state officer or employee engaged in 

conduct that was even more egregious than gross negligence.

Elliott v. Dugger, 579 So. 2d 827, 830 (Fla. 1st DCA 1991). Thus, 

cases interpreting section 768.28(9)(a) are informative and 

instructive when interpreting subsection (9)(d)(1). 

In Dugger, this court held that acts of gross negligence do not 

rise to the level of recklessness to violate section 768.28(9), as 

“section 768.28(9)(a) grants immunity to a state employee who 

merely acts with gross negligence and not the greater degree of 

culpability set forth in the statute.” 579 So. 2d at 830. 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). 

Here, the undisputed facts viewed in the light most favorable 

to Appellant do not establish that the initial officer’s actions were 

so reckless as to constitute disregard for human life, rights, safety, 

or property. Appellant asserts that because the officer drove 

eighty miles per hour down roads that are typically crowded, the 

officer acted recklessly. But this argument, if accepted, would 

render all high-speed chases on public roads by law enforcement 

reckless, and this proposition was rejected in City of Miami v. 

Horne, 198 So. 2d 10, 12 (Fla. 1967) (rejecting the argument that 

an officer engaged in “reckless conduct simply because he pursued 

the offender, on the theory that mere pursuit creates a highway 

danger,” and holding that a ticketing officer chasing a fleeing 
5

motorist at ninety-five miles per hour in a thirty-mile-per-hour 

zone was not negligent, rejecting argument that officers must 

pursue offenders “at lawful rates of speed”). 

While it is correct that the high-speed chase was found to 

deprive officers of immunity in City of Pinellas Park v. Brown, 604 

So. 2d 1222 (Fla. 1992), that pursuit covered five times the 

distance as in the present case, reached speeds of 120 miles per 

hour and involved officers who disregarded multiple traffic signals 

and an order to terminate pursuit. The fleeing suspect in that case 

hit the deceased victims’ car at 90-miles-per-hour, killing two 

people. More significantly, the supreme court in Pinellas Park 

created a common-law duty of care as a matter of public policy that 

imposed liability for negligence, a much lower legal threshold than 

the legislature has since required in section 768.28(9)(d)(1), 

Florida Statutes, which provides immunity unless officers engaged 

in conduct that demonstrated recklessness and was so wanting in 

care as to show a “disregard for human life, rights and property.” 

Thus, the legal duty the court created in Pinellas Park as public 

policy was far broader and more inclusive than the duty of care 

enacted by the legislature in granting sovereign immunity for 

officers in conducting high-speed pursuit in section 768.28(9)(d)(1), 

Florida Statutes. In addition to the distinguishing facts of Pinellas 

Park, that decision’s limitation of sovereign immunity cannot 

control over the legislature’s authority to define sovereign 

immunity of law enforcement officers pursuing suspects who then 

injure innocent third parties. 

Under the state’s strict separation of powers in Article II, 

section three, Florida Constitution, the legislature is supreme in 

deciding when and how to limit or waive sovereign immunity:

The doctrine of sovereign immunity, which provides 

that a sovereign cannot be sued without its own 

permission, has been a fundamental tenet of Anglo–

American jurisprudence for centuries and is based on the 

principle that “the King can do no wrong.” The doctrine 

was a part of the English common law when the State of 

Florida was founded and has been adopted and codified 

by the Florida Legislature. The original justification for 

incorporating the doctrine into American jurisprudence 

was the logical and practical ground that there can be no 
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legal right as against the authority that makes the law 

on which the right depends. Florida law has enunciated 

three policy considerations that underpin the doctrine of 

sovereign immunity. First is the preservation of the 

constitutional principle of separation of powers. Second 

is the protection of the public treasury. Third is the 

maintenance of the orderly administration of 

government.

However, the Florida Constitution provides that the 

Legislature can abrogate the state's sovereign immunity. 

See art. X, § 13, Fla. Const. (“Provision may be made by 

general law for bringing suit against the state as to all 

liabilities now existing or hereafter originating.”). Only 

the Legislature has authority to enact a general law that 

waives the state's sovereign immunity. Further, any 

waiver of sovereign immunity must be clear and 

unequivocal. In interpreting such legislative waivers of 

sovereign immunity, this Court has stated that it must 

strictly construe the waiver. Moreover, waiver will not be 

found as a product of inference or implication. 

Am. Home Assur. Co. v. Nat'l R.R. Passenger Corp., 908 So. 2d 459, 

471–72 (Fla. 2005) (emphasis added) (internal quotations and 

citations omitted). 

Cases describing what actions do not constitute negligence 

under the earlier standard are instructive here because if 

negligence was not established in those cases, similar facts could 

never rise to the level required to show a waiver of sovereign 

immunity under section 768.28(9)(d)(1), Florida Statutes. For 

example, 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 above gross negligence required to constitute a 

disregard for human life under section 768.28(9)(d). 

The pursuit in the present case was conducted in a manner 

“necessary to apprehend the offender” without exceeding “proper

and rational bounds” of conduct. Horne, 198 So. 2d at 13. Thus, 
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Appellee satisfied the first prong of section 768.28(9)(d), Florida 

Statutes.

On the second prong, whether the officer reasonably believed 

the fleeing motorist had committed a forcible felony as defined in 

section 776.08, Appellant argues that documents prepared 

contemporaneous to the incident demonstrate that the officer 

initiated the pursuit because the motorist committed “reckless 

driving” and “fleeing and eluding,” neither of which are forcible 

felonies under section 776.08, Florida Statutes. Appellee argues 

that its affidavit stated that three or four people had to jump out 

of the way of the fleeing car when it backed out of a driveway, 

demonstrating that the officer observed an aggravated assault, a 

forcible felony as defined in section 776.08, Florida Statutes. 

Appellee argues that the police report forms limited officers to 

listing two reasons for initiating and did not require them to list 

every reason, and therefore the officer’s listing of “reckless driving” 

and “fleeing and eluding” on the form does not establish that he 

did not observe an aggravated assault. 

The officer stated in his affidavit that he initially saw the 

vehicle in question pull out of a driveway, causing its front end to 

spin around, and three or four pedestrians had to jump out of the 

way to avoid serious injury. We hold therefore that the officer 

witnessed an aggravated assault, a forcible felony under section 

776.08, Florida Statutes. See § 784.021(1)(a), Fla. Stat. (2019) (an 

aggravated assault includes an assault with a deadly weapon). 

Section 768.28(9)(d) does not require an arrest or citation for 

a forcible felony, but only that the pursuing officer reasonably 

believe the person being pursued had committed an aggravated 

felony. The Vehicle Pursuit Report and affidavit establish that the 

officer observed a forcible felony, a fact not disputed by the absence 

of an arrest or citation for aggravated assault. Thus, Appellee also 

met its burden regarding the second prong under Section 

768.28(9)(d)(2). 

On the third prong, whether the pursuit was conducted in 

accordance with a written policy governing high-speed pursuit 

adopted by the employing agency, Appellant argues that officers 

violated the relevant vehicle-pursuit policy. Appellant first argues 

that the officers violated a section of the policy that requires 
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officers to evaluate whether the risk to public inherent in pursuit 

is offset by the risk to the public by not immediately apprehending 

the violator. But the arrest report and the officer’s affidavit 

indicate that members of the public were at risk because of the 

driver’s actions. The undisputed facts therefore show that officers 

considered public safety in compliance with the agency’s written 

policy. 

Appellant next argues that officers violated a section of the 

policy prohibiting officers from continuing to follow a violator in an 

attempt to maintain visual observation once pursuit has been 

terminated. The evidence established, however, that the initial 

officer stopped pursuing the fleeing vehicle when it left his sight, 

and that he only continued pursuit after the vehicle reentered his 

sight. He did not follow the suspect in an attempt “to maintain 

visual observation,” and therefore the officer acted in accordance 

with the written policy. 

Appellant also argues the officers violated the policy by failing 

to terminate pursuit when the risks of pursuit outweighed the 

need for apprehension. But in addition to the initial 

endangerment of the pedestrians near the driveway, the arrest 

report stated that the fleeing vehicle ran several cars off the road 

and repeatedly drove on the sidewalk to get around traffic. The 

evidence thus established that the fleeing driver endangered the 

public before the pursuit and continued to endanger the public 

during pursuit, and as such established that the need for 

apprehension continued throughout the pursuit. The evidence 

does not establish that the officers violated written policy and does 

not dispute the lieutenant’s assessment in his affidavit that the 

pursuit was conducted in accordance with the policy. The 

undisputed facts viewed in the light most favorable to Appellant 

therefore establish that the officers acted in accordance with a 

written policy, satisfying the third prong of section 768.28(9)(d), 

Florida Statutes.

Finally, Appellant argues that the trial court applied an 

incorrect “qualified immunity” standard instead of an “immunity 

from liability” standard. Appellant is correct that, unlike section 

768.28(9)(a), which grants individual state officers immunity from 

judgment and suit in certain cases, section 768.28(9)(d) only grants 

employing agencies immunity from judgment. However, in 
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entering summary judgment, the court properly determined that 

Appellee was not liable based on the undisputed material facts. 

The court applied the correct statute, and ruled that based on the 

presented facts, Appellee satisfied the elements of section 

768.28(9)(d), and entered judgment in Appellee’s favor. The court 

did not rule that Appellee was immune from suit, but rather ruled

that based on the undisputed facts Appellee was immune from 

judgment, in accordance with section 768.28(9)(d), Florida 

Statutes.

The undisputed facts establish that Appellee was not liable 

under section 768.28(9)(d), Florida Statutes. Based on the 

undisputed facts, no reasonable jury could have found that the 

officers acted recklessly or with such a lack of care as to 

demonstrate a disregard for human life, safety or property. Thus, 

summary judgment was proper because sovereign immunity was 

not waived based on these facts under section 768.28(9)(d). 

AFFIRMED. 

JAY, J., concurs; BILBREY, J., concurs in result with opinion.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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BILBREY, J., concurring in result.

I agree with much of what the majority concludes and with 

the result reached. I write to discuss the second prong for an 

“employing agency of a law enforcement officer” to claim immunity 

under section 768.28(9)(d), Florida Statutes, that is whether “the 

officer reasonably believes that the person fleeing has committed 

a forcible felony” and to explain that while I may disagree with 

some of the majority’s reasoning on this issue, I nonetheless 

believe we are correct to affirm. 

I agree with the majority that the crimes listed on the police 

report forms were not conclusive, and the officers could have been 

in pursuit after observing a forcible felony even though no forcible 

felony was listed on the forms. Appellant’s only argument 
10

regarding the forcible felony prong for immunity is that we should 

ignore the purported “self-serving” statements by the Jacksonville 

Sheriff’s officers.*

 I agree with the majority that we are correct to 

consider the reports and statements contained therein.

The majority opinion holds “that the officer witnessed an 

aggravated assault, a forcible felony under section 776.08, Florida 

Statutes.” Majority op. at 7. I do not necessarily agree, but still 

believe we are correct to affirm. An aggravated assault can be 

proven with evidence of an assault with a deadly weapon. 

§ 784.021(1)(a), Fla. Stat. For almost a hundred years, Florida law 

has held that intentionally putting a victim in fear of getting hit 

by an automobile qualifies as aggravated assault. See Williamson 

v. State, 111 So. 124 (Fla. 1926). But here proof of intent is 

questionable. See § 784.011(1) (defining assault, in part, as “an 

intentional, unlawful threat by word or act to do violence to the 

person of another”). To prove an assault, while there is no 

requirement to show that the perpetrator intended “to do violence 

to the victim,” it must be shown that there was “an intentional 

threat that creates a fear of imminent violence.” Pinkney v. State, 

74 So. 3d 572, 576 (Fla. 2d DCA 2011) (en banc); see also Williams

v. State, 238 So. 3d 915 (Fla. 1st DCA 2018). 

Undoubtedly, the pedestrians who were almost hit by the 

fleeing driver were afraid of being struck by the vehicle. But did 

the fourteen-year-old driver intend to put the pedestrians in fear 

of being struck or did the driver recklessly endanger the 

pedestrians? See § 316.192(1)(a), Fla. Stat. (defining reckless 

driving as “willful or wanton disregard for the safety of persons or 

property”); Anderson v. State, 247 So. 3d 680 (Fla. 1st DCA 2018), 

rev. granted, SC18-1059, 2018 WL 6681770 (Fla. Dec. 19, 2018) 

(distinguishing the crime of reckless driving from aggravated 

assault). While aggravated assault is a forcible felony, reckless 

driving is not. § 776.08, Fla. Stat. On this record, I do not believe 

we can say a forcible felony was committed, and I would not go as 

 * Of course any statement in support of summary judgment 

would likely be self-serving. See Fla. R. Civ. P. 1.510(c) (defining 

“summary judgment evidence” to be used by the proponent of a 

motion for summary judgment). 
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far as the majority in definitively concluding a forcible felony 

occurred. 

However, the Appellant does not make this argument 

regarding proof of intent being lacking. Barring some 

fundamental error, not present here, we can only reverse when “an 

appellant raises claims of error.” D.H. v. Adept Cmty. Servs., Inc., 

43 Fla. L. Weekly S533, S535, 2018 WL 5660595, *6 (Fla. Nov. 1, 

2018). Appellant does argue that the pursuit occurred because of 

reckless driving, but I do not believe the intent issue I mention was 

raised by Appellant such that we could reverse on that ground. See 

Doe v. Baptist Primary Care, Inc., 177 So. 3d 669 (Fla. 1st DCA 

2015) (holding that an appellate court will only consider points 

raised in the initial brief or the points are deemed waived). I 

therefore believe that affirmance is the correct result. 

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Brett A. Hastings, Jacksonville Beach, for Appellant.

R. Anthony Salem, Assistant General Counsel, City of 

Jacksonville, Jacksonville, for Appellee.