*

Honorable Truman M. Hobbs, U.S. District Judge for the Middle District of Alabama, sitting by

designation. 

Pamela LEWIS, individually and as personal representative of the Estate of Tyron Lewis, deceased,

Plaintiff-Appellant,

v.

CITY OF ST. PETERSBURG, Defendant-Appellee.

No. 00-12917.

United States Court of Appeals,

Eleventh Circuit.

Aug. 6, 2001.

Appeal from the United States District Court for the Middle District of Florida. (No. 00-00128-CV-T-17A),

Elizabeth A. Kovachevich, Chief Judge.

Before BLACK and BARKETT, Circuit Judges, and HOBBS*

, District Judge.

BARKETT, Circuit Judge:

Pamela Lewis, as personal representative of the Estate of TyRon Lewis, appeals the dismissal of her

suit against the City of St. Petersburg (the "City") brought pursuant to Florida's Wrongful Death Act, Fla.

Stat. §§ 768.16-768.27, alleging causes of action for negligent use of a firearm and for negligent training.

In addition to her state law claims, Lewis raised a federal claim under 42 U.S.C. § 1983. The district court

also dismissed the federal claim; however, Lewis does not appeal this dismissal. On appeal, Lewis argues

that the district court misapplied Florida law in dismissing her state law claims. We affirm in part and reverse

and remand in part.

Lewis's Fourth Amended Complaint alleges that on October 24, 1996, James Knight and Sandra

Minor, both City of St. Petersburg police officers, fatally shot TyRon Lewis through the windshield of his

vehicle while he was stopped at an intersection. The complaint further alleges that Knight and Minor and

other officers of the St. Petersburg Police Department breached the duty of care owed to Lewis "by

discharging their firearms through a vehicle windshield and otherwise conducting themselves in a careless

and negligent manner as to directly and proximately cause the death of TyRon Lewis," and that the City

breached a duty of care owed to Lewis by "failing to properly train its officers in how to handle a crisis

management situation and failing to train its officers regarding the proper use of force in a crisis management

situation."
 1

In Florida, a private person would be liable for its agent's acts occurring within the scope and course

of the agency relationship, so long as those acts breached a duty of care owed to the plaintiff and that

breach caused the plaintiff to suffer damages. See, e.g., Bennett v. Godfather's Pizza, Inc., 570 So.2d

1351 (Fla.Dist.Ct.App.1990). 

The district court dismissed the negligent use of a firearm claim, holding that the complaint failed

to state a claim because Lewis was alleging the negligent commission of an intentional tort and, alternatively,

that sovereign immunity bars this claim. The district court also dismissed Lewis's negligent training claim

finding that the City owed no duty specific to TyRon Lewis to train its police officers and, alternatively, that

the City is protected from suit by sovereign immunity. This appeal followed.

We review the dismissal of a complaint de novo, construing all allegations in the complaint as true

and in the light most favorable to the plaintiff. See Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229

(11th Cir.1999). Dismissal for failure to state a claim is appropriate "only if it is clear that no relief could be

granted under any set of facts that could be proved consistent with the [plaintiff's] allegations." Hishon v.

King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

1. Negligent Use of a Firearm

 To state a claim for negligence under Florida law, a plaintiff must allege that the defendant owed

the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to

suffer damages. Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla.Dist.Ct.App.1985). In this case, Lewis sued

the City of St. Petersburg, based upon the alleged negligent actions of its agents, the police officers. The

State of Florida and its subsidiaries—including municipalities—are generally immune from tort liability, see

Fla. Const., Art. X, § 13, however, Florida has waived this immunity "under circumstances in which the state

or agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general

laws of this state."1

 Fla. Stat. § 768.28(1). At the same time, even if the claim contained sufficient allegations

of tort liability under which a private person would be liable, the waiver of sovereign immunity would still

not apply if the challenged acts of the state agent were "discretionary" governmental acts rather than merely

"operational" ones. The district court in this case dismissed Lewis's claim on two grounds: (1) one of the

elements of a tort under Florida law, the existence of the duty of care owed, could not be alleged by Lewis,

and (2) the acts were "discretionary" and not "operational."

Thus, when a state or its subsidiary is sued in negligence, a court should first determine whether the

circumstances alleged would subject a private person to liability under Florida law. Kaisner v. Kolb, 543
So.2d 732, 734 (Fla.1989) ("the question of the applicability of [sovereign] ... immunity does not even arise

until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable

in the absence of such immunity") (internal quotations omitted). If a court is satisfied that a duty of care is

owed to the plaintiff, the court must still determine whether the challenged actions are nonetheless acts which

required the exercise of basic governmental discretion, as opposed to the implementation of an already

established policy. Accordingly, even if a plaintiff has adequately alleged all of the elements of a negligence

claim, including the breach of a common law duty, immunity would still bar the claim if the challenged act

were deemed to be governmentally "discretionary" in nature, and not merely "operational." See id. at 737.

Under this framework, we first address whether the plaintiff has adequately alleged that a common law duty

exists, and then whether the claim is nonetheless barred by the "discretionary" act exception to the waiver of

sovereign immunity.

 In Florida, when a "defendant's conduct creates a foreseeable zone of risk, the law generally will

recognize a duty [to all within the zone] 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." Id. at 735; see also

Henderson v. Bowden, 737 So.2d 532, 535 (Fla.1999); McCain v. Florida Power Corp., 593 So.2d 500, 503

(Fla.1992); City of Pinellas Park v. Brown, 604 So.2d 1222, 1225 (Fla.1992). This analysis applies equally

to the actions of both public and private defendants. See Kaisner, 543 So.2d at 735-36 ("We see no reason

why the same analysis should not obtain in a case in which the zone of risk is created by the police.").

 Here, the district court, erroneously read Kaisner, to hold that a duty of care only arises in those

situations in which an officer places an individual in custody. The rationale of Kaisner makes clear that it

does not limit application of the "zone of risk" analysis to situations in which the plaintiff is in custody, but

rather is simply an application of the test to the particular set of facts presented in that case. Indeed, in

subsequent cases, the Florida Supreme Court applied the "zone of risk" analysis to individuals not in custody.

See, e.g., Brown, 604 So.2d at 1225 (recognizing that officers owe a duty of care to innocent bystanders or

third parties injured as the result of high speed car chases of fleeing suspects). Thus, reiterating Florida law,

when a defendant, including a police officer, by his or her conduct creates a foreseeable zone of risk, the law

imposes a duty owed by the defendant to all individuals within the zone to act with reasonable care. The

complaint sufficiently alleges that Knight and Minor placed Lewis in a "zone of risk," and thus owed him and

others within that zone of risk a specific duty to exercise reasonable care, when they drew and raised their
weapons.

We find unpersuasive the City's argument that under Seguine v. City of Miami, 627 So.2d 14, 16-18

(Fla.Dist.Ct.App.1993), an officer's decision to arrest is not susceptible to suit for negligence. Lewis, does

not challenge the officers' decision to arrest, but rather bases her suit upon the actions that occurred after the

initial decision to arrest was made. Florida case law provides that these actions may give rise to tort liability.

See, e.g., Kaisner, 543 So.2d at 735-36.

 The City alternatively argues that even if a duty of care did arise, dismissal of the claim is still

appropriate because Florida law does not permit a cause of action for "negligent use of excessive force." See

City of Miami v. Sanders, 672 So.2d 46, 47-48 (Fla.Dist.Ct.App.1996) ("it is not possible to have a cause of

action for 'negligent' use of excessive force because there is no such thing as the 'negligent' commission of

an 'intentional' tort"). Florida law, however, clearly recognizes a cause of action for the negligent handling

of a firearm and the negligent decision to use a firearm separate and distinct from an excessive force claim.

As the state court in Sanders recognized:

[A] separate negligence claim based upon a distinct act of negligence may be brought against a police

officer in conjunction with a claim for excessive use of force. Nevertheless, the negligence

component must pertain to something other than the actual application of force during the course of

the arrest.

Id. at 48 (internal citations omitted). See Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, 468

So.2d 912, 920 (Fla.1985) (recognizing that existing common law duties of care are applicable to government

officials and employees in the operation of motor vehicles and the handling of firearms during the course of

their employment to enforce compliance with the law); Mazzilli v. Doud, 485 So.2d 477

(Fla.Dist.Ct.App.1986) (upholding negligence claims arising from law enforcement failure to exercise

reasonable care when utilizing firearms where police officer arrived at the scene of a Drug Enforcement

Agency arrest and fired at an undercover agent and admitted at trial that he did not know who was there but

believed that someone was committing a felony).

Here, the complaint alleges that Knight and Minor acted negligently in using their firearms and that

this negligence caused them to shoot Lewis while he was sitting in his car. Although discovery may reveal

that the shooting was an intentional act and negligence played no part, at the motion to dismiss stage our

review is limited to the allegations in the complaint construed in the light most favorable to the plaintiff.

With this standard in mind, we conclude that the complaint adequately states a claim for negligent use of a

firearm.
 Having concluded that Knight and Minor owed a duty of care to Lewis and that the complaint

adequately alleges a tort in which a private person would be liable, we must now consider whether the City

is, nevertheless, immune from suit on the ground that the officer's actions constituted "discretionary" and not

"operational" acts. The Florida Supreme Court has held that governmental liability does not exist when the

challenged act of the government or its agent is "discretionary" in nature. See Kaisner, 543 So.2d at 736.

An act is "discretionary" when all of the following conditions have been met:

(1) the action involves a basic governmental policy, program, or objective; (2) the action is essential

to the realization or accomplishment of that policy, program, or objective; (3) the action require[s]

the exercise of basic policy evaluation[s], judgment[s], and expertise on the part of the governmental

agency involved; and (4) the governmental agency involved possess[es] the requisite constitutional,

statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

Trianon Park, 468 So.2d at 918 (internal quotations omitted); see also Kaisner, 543 So.2d at 737.

 In this case, several of these conditions are not present. First, the officers' action did not involve a

basic governmental policy, program or objective. Indeed, the decision as to whether use of a firearm is

necessary is "not necessary to or inherent in policy or planning," and "merely reflects a secondary decision

as to how those policies or plans will be implemented." Kaisner, 543 So.2d at 737. Second, the challenged

actions were not essential to the realization of a basic governmental policy. See id. ("Safer places or methods

of ordering motorists to the roadside may exist that would both protect the motorists and meet the

government's objectives."). Finally, the actions did not require basic policy evaluation or expertise, rather,

they required an assessment of how to implement policy. Id. ("This lawsuit merely asks the courts to consider

the way in which this basic policy is implemented, not its fundamental wisdom.").

In short, an act is "discretionary" if it involves an "exercise of executive or legislative power such

that, for the court to intervene by way of tort law would inappropriately entangle it in fundamental questions

of policy and planning." Department of Health and Rehabilitative Serv. v. Yamuni, 529 So.2d 258, 260

(Fla.1988); Kaisner, 543 So.2d at 737. Conversely, an "operational" act is one not necessary to or inherent

in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be

implemented. Kaisner, 543 So.2d at 737. Accordingly, under Florida law "[t]he decision of whether to

enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is

immune from suit." Everton v. Willard, 468 So.2d 936, 937 (Fla.1985). Lewis, however, does not challenge

the prudence of the officers' discretionary decision whether to arrest or detain, rather, she challenges the

manner in which the officers implemented that decision. Under Florida law, when an officer has made an
initial discretionary decision to conduct a stop and then proceeds to carry out that decision, the officer is no

longer exercising a "discretionary" function, but is engaged in an "operational" task. Kaisner, 543 So.2d at

734, 737-38. In this case, the officers, having decided to stop Lewis, had an obligation to proceed with

reasonable care. Lewis alleges that they breached this duty and that this breach caused the death of TyRon

Lewis. Thus, the district court erred in dismissing Lewis's negligent use of a firearm claim.

2. Negligent Training

In her negligent training claim, Lewis alleges that the City "breached its duty to TyRon Lewis by

failing to properly train its officers in how to handle a crisis management situation and failing to train its

officers regarding the proper use of force in a crisis management situation," and that this breach caused

TyRon Lewis's death. As in the earlier discussion, in analyzing the validity of this claim, we first consider

whether a Lewis has alleged sufficient facts under which the City, if a private entity, would be liable to Lewis

in accordance with the general laws of Florida. See Fla. Stat. § 768.28(1); Kaisner, 543 So.2d at 734. If so,

we then analyze whether the "discretionary" function exception to Florida's waiver of sovereign immunity

nonetheless bars tort liability on this claim.

 Under Florida law, an employer is liable in tort for reasonably foreseeable damages resulting from

the negligent training of its employees and agents. See, e.g., McFarland & Son, Inc. v. Basel, 727 So.2d 266

(Fla.Dist.Ct.App.1999). Thus, Lewis's claim that the City's negligent training of its employees caused TyRon

Lewis to suffer damages, taken as true and viewed in the light most favorable to Lewis, alleges facts upon

the City, if a private entity, would be liable. The district court, however, dismissed Lewis's negligent training

claim, finding that Lewis had failed to show that the City owed a specific duty to TyRon Lewis to reasonably

train its law enforcement officers separate from that duty owed to the public, and therefore the claim is barred

by the public duty doctrine.

Under this doctrine, "a governmental entity is not liable in tort for breaching a duty which the

government owes to the public generally, as opposed to a special tort duty owed to a particular individual."

Seguine 627 So.2d at 17. In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015

(Fla.1979), however, the Florida Supreme Court explicitly held that the public duty doctrine has no

continuing vitality under Florida law subsequent to the effective date of Fla. Stat. § 768.28. Despite this

ruling, several Florida District Court of Appeal cases have continued to apply the public duty doctrine to bar

tort liability for governmental acts. See, e.g., Seguine, 627 So.2d at 17. However, no case has overruled
 2

It should be noted, however, that the converse is not necessarily true. Indeed, in Commercial

Carrier, the Florida Supreme Court found that although the government's duty to reasonably maintain the

public roadways was a public duty, actions taken in performance of that duty can be operational, and thus

not insulated from tort liability. 371 So.2d at 1016, 1022. 

Commercial Carrier and, in fact, in Trianon Park, 468 So.2d at 918, the Florida Supreme Court reaffirmed

Florida's rejection of the public duty doctrine.

This apparent conflict between the District Court of Appeal cases and the Florida Supreme Court,

and the resulting confusion surrounding the public duty doctrine, stems in part from the doctrine's inherent

relation to the "discretionary" act exception to Florida's waiver of sovereign immunity. As noted earlier, a

governmental agency is immune from tort liability based actions that involve its "discretionary" functions,

such as development and planning of governmental goals and policies. This immunity is based upon the

concept of separation of powers. See Yamuni, 529 So.2d at 260 (defining an act as "discretionary" if it

involves an "exercise of executive or legislative power such that, for the court to intervene by way of tort law

would inappropriately entangle it in fundamental questions of policy and planning"). The public duty

doctrine, to a certain degree, is based upon the same rationale. Thus, in many cases where the challenged act

is "discretionary," the duty alleged to have been breached will be a public duty.2

 For example, in Everton v.

Willard, the Florida Supreme Court affirmed the dismissal a complaint alleging the negligent failure to arrest

a drunk driver against Pinellas County based upon the discretionary function exception. The Florida Supreme

Court stated that the decision to arrest is a "discretionary power ... considered basic to the police power

function of governmental entities...." 468 So.2d at 938. The court then went on to state that:

A law enforcement officer's duty to protect the citizens is a general duty owed to the public as a

whole. The victim of a criminal offense, which might have been prevented through reasonable law

enforcement action, does not establish a common law duty of care to the individual citizen and

resulting tort liability, absent a special duty to the victim.

Id. Thus, in Everton, although the Florida Supreme Court's holding was based upon the discretionary function

exception, the duty owed was also a public duty.

 In this case, the district court found that the City's duty to reasonably train its police force is a public

duty and dismissed Lewis's claim based upon the public duty doctrine. Although this duty is a public duty,

dismissal on this ground was in error. See Commercial Carrier, 371 So.2d at 1015-16. We, nonetheless,

affirm the district court's dismissal of this claim because the acts which Lewis's negligent training claim

challenge are "discretionary" governmental functions immune from tort liability.

Lewis does not challenge the implementation or operation of the City's police training program as
it relates to the officers involved in the shooting, but rather Lewis challenges the City's policy decisions

regarding what to include in the training of its police officers. A city's decision regarding how to train its

officers and what subject matter to include in the training is clearly an exercise of governmental discretion

regarding fundamental questions of policy and planning. Because Lewis challenges the reasonableness of

basic policy decisions made by the City, the "discretionary" function exception to the waiver of sovereign

immunity applies and her claim is barred.

For the foregoing reasons, we affirm the dismissal of Lewis's claim of negligent training and we

reverse the dismissal of Lewis's claim relating to the negligence of the officers in using a firearm in

attempting to stop and/or arrest Lewis, and remand that claim to the district court for further proceedings

consistent with this opinion.

Further, we remand to the district court to reconsider whether it should continue to exercise

supplemental jurisdiction over the Lewis's state law claim because "all [the federal] claims over which it has

original jurisdiction" have been dismissed, 28 U.S.C. § 1367(c)(3), especially in light of a related case

pending in state court. "In making that determination, the judge should 'take into account concerns of comity,

judicial economy, convenience, fairness, and the like.' " Crosby v. Paulk, 187 F.3d 1339, 1352 (11th

Cir.1999) (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir.1996)). If the district

court does decline to exercise supplemental jurisdiction, these claims shall be remanded to state court, rather

than dismissed, because this case was originally filed in state court and removed to federal court pursuant to

28 U.S.C. § 1441. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720

(1988); Hinson v. Norwest Fin. South Carolina, Inc., 239 F.3d 611, 617 (4th Cir.2001).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.