FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 23, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11903

Non-Argument Calendar

________________________

D. C. Docket No. 05-00263-CV-FTM-29-SPC

ALEX ZIVOJINOVICH, 

 Plaintiff-Counter-

 Defendant-Appellant,

JUSTIN ZIVOJINOVICH, 

MICHELLE ZIVOJINOVICH, 

 Plaintiffs-Appellants, 

versus 

FRANK BARNER,

RITZ-CARLTON HOTEL COMPANY, L.L.C.,

d.b.a. Ritz Carlton Naples,

 Defendants-Appellees,

CHRISTOPHER KNOTT, 

SCOTT RUSSELL, 

AMY STANFORD,

 Defendants-Counter-

 Claimants-Appellees. 
 Michelle Zivojinovich’s name also appears on the plaintiffs’ brief, but it does not 1

contain any contentions of error that relate to the one claim she brought, which was for false

arrest. It is unclear whether she intended to appeal the grant of summary judgment to the

defendants on her claim, but, if she did, she has waived the appeal by failing to put forward any

arguments in this Court. See Flanigan’s Enters. v. Fulton County, 242 F.3d 976, 987 n.16 (11th

Cir. 2001) (holding that when a brief “fail[s] to elaborate or provide any citation of authority in

support of . . . [an] allegation,” the issue is waived); Davis v. Hill Eng’g, Inc., 549 F.2d 314, 324

(5th Cir. 1977) (holding that merely mentioning in a brief that the district court erred, absent any

specific argument as to how the court erred, waives the issue on appeal).

2

 _______________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 23, 2008)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

This is Justin and Alex Zivojinovich’s appeal of the district court’s grant of

summary judgment to the defendants on their § 1983 excessive force and

negligence claims.1

I.

The following are the facts viewed in the light most favorable to the

Zivojinovichs, which is how we are required to view them at this stage of the

proceedings. See Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005); Shotz

v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003); see also Cottrell

v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996) (“[W]hat is considered to be the
 William “Count” Basie (1904–1984) was a jazz bandleader and piano player. During 2

his deposition, Justin said that the comment was intended as a compliment, although he was

personally unfamiliar with Basie’s music.

3

‘facts’ at the summary judgment stage may not turn out to be the actual facts if the

case goes to trial, but those are the facts at this stage of the proceeding for

summary judgment purposes.”).

On December 31, 2003, Justin Zivojinovich, his wife, Michelle, and his

father, Alex, attended a black-tie New Year’s Eve party at the Ritz-Carlton Hotel in

Naples, Florida. The dance floor of the ballroom where the party took place was

surrounded by dinner tables on three sides and had a small stage on the fourth side. 

The two bands that had been hired to play that night were alternating using the

stage. At about 10:30 p.m., Justin began dancing boisterously. He circled the

dance floor undulating his arms, danced with four women simultaneously, and

eventually shoved apart a couple who were dancing and, without asking, began to

dance with the woman. Immediately thereafter, Justin stepped onto the stage

uninvited and said “Thank you, thank you. Let’s give it up for the band, the next

Count Basie. Happy New Year’s everyone, let’s have a Happy New Year’s.” He 2

then returned to his table.

At about 11:15 p.m., Justin began dancing again, this time with a male

friend. The Ritz’s night shift manager on duty, Frank Barner, saw Justin dancing
4

again and decided to call the sheriff’s office to have deputies come to issue a

trespass warning and escort Justin off the Ritz’s property. He radioed the front

desk and told Azure Sorrell, the employee working there, to call the sheriff’s

office. Then, to be sure that all of the relevant information was conveyed, he

called the Collier County Sheriff’s Office himself. 

Barner told the dispatcher that there were “a couple of subjects being

disorderly,” “screaming[,] and yelling.” Barner claimed that the subjects “jumped

up on a stage,” tried “to commandeer the bandstand,” and “were giving . . . the

band members a hard time.” Barner also told the dispatcher that when he “tried to

explain to [Justin] that he couldn’t do that, he started yelling profanities,

screaming, yelling and carrying on.” In reality, Barner had not yet spoken to

Justin. 

Deputies Scott Russell and Chris Knott separately responded to the call. 

They were told only that there was a disturbance of some kind at the Ritz involving

two men who were being unruly, refusing to cooperate, and getting onto the stage. 

After hearing that two deputies had gone to the Ritz, Deputy Amy Stanford

decided to go there as well to provide back up.

When Sorrell spoke to the dispatcher, she requested that deputies come to

remove “some disorderly people” who were “just basically trashing the place . . .
5

jumping on furniture, ripping things apart” and whom Ritz security personnel

could not control. This was not true, but Sorrell’s report was not relayed to any of

the deputies who went to the Ritz to deal with the situation. 

After dancing for a while, Justin and his friend got up on stage while one of

the bands was playing. Justin’s friend danced around while Justin went to the

microphone. Alex, who had been dancing with his wife, joined them. Alex tapped

on a conga drum in time with the music for about ten seconds before leaving the

stage. A member of the band who was not playing at that time angrily told Justin

to get off the stage, but Justin did not notice him. Justin tapped the microphone to

see if it was on. It was not, and he and his friend stepped off the stage. 

As he walked back to his table, Justin made an exaggerated bow to the other

guests. One of them described it as mooning the band with his clothes on. At this

point, Barner approached Justin. Barner told Justin that he was not allowed to go

up on the stage where the band was playing and that, if he did it again, he would be

removed from the property and charged with trespassing. Justin replied by asking

him “What, no fun?” but returned to his table. While sitting there, Justin felt as

though Barner was continuing to watch him. So, he turned to look at Barner and

mouthed the words “Why don’t you just fucking leave us alone?” before returning

to his meal. 
6

Around this time, all three deputies arrived in the ballroom. Deputy Knott,

who had once worked security at the Ritz under Barner, approached Barner to ask

what the disturbance was. Barner pointed out Justin and told Knott that he had

been disruptive. Barner went on to recount an exaggerated version of conversation

with Justin in which he made the following claims: When Barner told Justin that

he would be removed from the hotel if he went on stage again, Justin said “Fuck

off, who is going to remove me?” or “Fuck off, what are you going to do?” Barner

replied, saying that he would call the police. Then Justin said something to the

effect of “What are they going to do?” After detailing this version of events to

Knott, Barner told him that he wanted Justin off the property and asked Knott to

issue Justin a trespass warning so that he could not return. 

Michelle had noticed Deputies Knott and Stanford come into the ballroom,

and she told Justin that the police had arrived. A few minutes later, at

approximately 11:35 p.m., Knott approached Justin from behind and tapped him on

the shoulder. Knott asked Justin if he would “step to the back” so that the deputies

could talk to him. Justin went with Stanford and Knott to a service hallway off the

ballroom, where they asked Justin to sit. When Justin was seated, Knott told him

that he could collect his belongings from the table and that he was going to be

escorted from the property and given a trespass warning. 
7

Justin returned to his table, retrieved his coat, told Michelle that he was

being forced to leave, and went back to the hallway with Deputies Knott and

Stanford. Alex and Michelle followed them into the hallway. Justin was again

told to sit in the chair in the hallway. He did so, but he stood up again shortly

thereafter. Stanford had to order him to sit down a second time. 

During this period, Alex told Deputy Stanford: “Please, officer, we haven’t

done anything. It is New Year’s Eve, we haven’t done anything.” Stanford replied

that if he didn’t stand back he would be arrested. He then asked her why she was

“being so hostile? It is New Year’s Eve,” and told her that if she wanted them to

leave, they would do so. Stanford again told him to stand back or he would be

arrested. Alex replied “Arrest me, you’re going to arrest me for what?”

Finally, the deputies took hold of Justin’s arms and began to escort him out. 

Alex asked Deputy Knott “Please, why are you doing this? What is going on? It is

New Year’s Eve.” Knott replied that Justin was being removed from the Ritz. 

Alex and Michelle followed as the deputies walked Justin out. While being

escorted out, Justin said: “Please, I just want to go home. Just let me go home.” 

Michelle replied: “It is fine, honey, I am right behind you to go home.”

The deputies held Justin’s arms as they walked him down the service

hallway and into the stairwell. Deputy Knott held Justin’s left arm without hurting
8

him. Deputy Stanford, however, pulled Justin’s right arm up at an angle that did

hurt. While walking toward the stairs, Alex continued asking the deputies not to

remove Justin. At one point Knott screamed back over his shoulder at Alex. Justin

then yelled that Stanford was hurting his arm, but she did not respond. 

As Justin and the deputies were entering the stairwell, Justin lurched

forward, pulled his arm partially free of Deputy Stanford’s grip, and forced it

straight. As Justin and Stanford were approaching the second landing in the

stairwell, Deputy Knott pushed Justin, causing both Justin and Stanford to fall

down the stairs. Justin landed on his chest. Deputy Stanford fell over him. After

falling, both rose to their hands and knees. Justin then rolled over to sit with his

back against the wall. 

Alex and Deputy Knott ran down to the landing. Knott and Deputy Stanford

began struggling with Justin, attempting to handcuff him. Knott pulled out his

taser gun, aimed it at Alex, and told him to “back off” immediately. Alex held his

hands out, palms open, at chest level and asked Knott not to hurt Justin. Alex

shouted for Justin “not to move, not to struggle.” 

Deputy Knott then warned Justin that he would use his taser gun if Justin did

not cooperate, but Justin did not hear him or did not understand him. Knott fired. 

The taser gun hit Justin in the torso, causing him to fall over. Alex attempted to
9

get to Justin so that he could cover Justin’s body with his own, but Deputy

Stanford held him back. As Alex continued to struggle, Stanford hit him on the

right side of his face.

Alex turned to Deputy Stanford and said, “You hit me in the face. You hit

me in the face, you fucking cunt.” Stanford then lunged at him, grabbed him by

the neck, and starting pushing him backwards down the stairs. Alex pushed her off

and tried to climb up the stairs to where Justin was lying. Before he could get

there, Deputy Russell, who had by then entered the stairwell, punched Alex on the

left side of his face, breaking his nose. Someone pulled Alex down, and he fell to

the next lower landing. When he regained focus, he was lying prone on his

stomach, using his forearms to prop up his upper body. One of the deputies

shouted at him to put his arms out. When Alex did not move, a deputy fired his

taser gun into Alex’s back. Alex fell forward into a pool of his own blood,

temporarily paralyzed. Again, a deputy told him to straighten out his arms. Alex

said that he was unable to move. The deputy shot Alex with his taser gun again. 

Meanwhile, Justin had climbed back up to a sitting position, at which point

Deputy Russell fired his taser gun, hitting Justin in the back. Michelle ran down to

the landing where Justin was. He asked her “Why is this happening? Why are

they doing this to me?” Michelle told him “Because he is an asshole.” Russell
10

told Michelle to step back, but she did not want to move for fear that they would

hurt Justin.

Deputy Russell told Michelle that she was going to go to jail. She said

“fine” and called him “an asshole” again. She was told to go back and sit on the

stairs, which she did. At no time did Michelle attempt to physically interfere with

the deputies. 

Finally, Justin, Alex, and Michelle were handcuffed and taken out the back

of the hotel to the loading dock. Alex’s handcuffs were so tight that he suffered

numbness and tingling in the backs of his hands for about a year after his arrest. 

While being taken out, Alex turned to Deputy Knott and asked him: “How do you

wake up in the morning and feel proud of who you are?” Because of his broken

nose, Alex sprayed blood when he spoke. In reply, Knott said “You’re spitting

blood at me,” to which Alex said “You think I am spitting blood at you. You

should have thought of that before you broke my nose.” Alex was either confused

about who broke his nose or meant to refer to the deputies generally because it was

Deputy Russell who had broken Alex’s nose, not Knott.

Deputy Knott and another deputy who had arrived at the scene used their

taser guns on both of Alex’s shoulders. His legs gave out, but the deputies held

him up. They sat Alex on the curb to wait for the ambulance to arrive. When
11

deputies put Justin in a patrol car, he turned to the deputy who was driving and said

“Hell of a New Year’s, hey?”

In April 2005, Justin was tried for resisting an officer with violence to his or

her person, a violation of Florida Statute § 843.01, but, before the conclusion of the

trial, he pleaded no contest to resisting without violence under Florida Statute §

843.02. At about the same time, Alex also pleaded no contest to resisting without

violence. Although Michelle was originally charged with resisting without

violence, the court dismissed the charge against her.

While the charges were still pending against them, the Zivojinovichs brought

suit against Deputies Knott, Russell, and Stanford, as well as the Ritz and Barner. 

Their amended complaint had thirty-four claims, including one on behalf of Alex’s

business associates and various business entities that have financial interests in his

career. The two claims that are relevant to this appeal are Justin and Alex’s § 1983

Fourth Amendment excessive force claims against the deputies and their

negligence claims against Barner and the Ritz. The deputies counterclaimed

against Alex for negligence and battery, but those counterclaims are not included

in this appeal.

The district court first granted summary judgment to the defendants on all

the claims against them. It then declined to exercise supplemental jurisdiction over
12

the counterclaims against Alex and dismissed them without prejudice. Alex and

Justin Zivojinovich now appeal the district court’s grants of summary judgment. 

The other plaintiffs have decided not to appeal.

The Zivojinovichs contend that the district court erred in five different ways. 

First, they assert that the summary judgment rule is unconstitutional as applied

because it allows the district court to impermissibly determine what verdict a

rational jury might render. Second, they argue that the district court erred by not

taking the facts in the light most favorable to them as non-moving parties. Third,

they contend that the district court erred in granting summary judgment to Barner

and the Ritz on Justin’s negligence claim. Fourth, they claim that the district court

erred in granting summary judgment to Barner and the Ritz on Alex’s negligence

claim. And, finally, they argue that the district court erred in granting summary

judgment to the deputies on Alex’s and Justin’s excessive force claims. We will

address each of these contentions in turn.

II.

The Zivojinovichs’ contention that Federal Rule of Civil Procedure 56(c),

which governs summary judgment, has been unconstitutionally interpreted is

meritless. The Federal Rules require a court to grant summary judgment if the

record before the court “show[s] that there is no genuine issue as to any material
13

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The Supreme Court has interpreted the word “genuine” in Rule 56(c) to

mean that the “evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510 (1986). 

The Zivojinovichs’ argument is that this interpretation unconstitutionally

deprives them of their Seventh Amendment rights to a jury trial because it

substitutes the judge’s judgment about what a hypothetical reasonable jury could

do for what a real jury would actually do. Even if we were persuaded by this

argument, the Supreme Court is the final arbiter of constitutionality, and its

interpretation is binding on us. Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691,

706 (1962) (The Supreme Court is the “ultimate interpreter of the Constitution.”);

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803). We are without

power to hold that the Supreme Court’s interpretation is unconstitutional, nor

would we if we could.

III.

The Zivojinovichs’ second contention is that the district court did not view

the facts in the light most favorable to them, as it was required to do. See Tinker,

429 F.3d at 1326; Shotz, 344 F.3d at 1164. We review de novo the district court’s
14

grant of summary judgment. Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477

F.3d 1250, 1254 (11th Cir. 2007). As a result, any error in how the district court

viewed the facts is mooted by our decision of the issue anew.

IV.

The Zivojinovich’s third contention is that the district court improperly

granted summary judgment to Barner and the Ritz on Justin’s negligence claim. 

The Zivojinovichs argue that Barner acted negligently, breaching two asserted

duties: (1) the duty to ask Justin to leave before calling law enforcement to eject

him from the Ritz and (2) the duty to provide accurate information to law

enforcement. The Ritz would be vicariously liable for Barner’s negligence under

the doctrine of respondeat superior. See Pope v. Winter Park Healthcare Group,

Ltd., 939 So. 2d 185, 187 (Fla. 5th DCA 2006) (“The tort principle of respondeat

superior makes an employer liable to third parties for the negligence of an

employee, whom he controls and directs.” (emphasis omitted)).

The first duty the Zivojinovichs assert would be inconsistent with Florida

law, which permits the operator of a hotel to “remove or cause to be removed . . .

any guest . . . [who] is intoxicated, profane, lewd, or brawling[] [or] who indulges

in any language or conduct which disturbs the peace and comfort of other guests or

which injures the reputation, dignity, or standing of the establishment.” Fla. Stat. §
15

509.141(1). Section 509.141(2) does require that the operator “notify such guest

that the establishment no longer desires to entertain the guest and . . . request that

such guest immediately depart from the establishment . . . . [either] orally or in

writing,” but that notification may be done by a law enforcement officer. See State

v. Williams, 751 So. 2d 170, 172 (Fla. 2d DCA 2000) (stating that motel guest was

lawfully ejected under Fla. Stat. § 509.141 when a police officer notified him that

the motel wanted him to leave). 

The Zivojinovichs argue that it is a jury question whether Justin’s actions

gave the Ritz the right to eject him under the Florida statute. We disagree. There

is no genuine issue of material fact about whether his behavior was “profane,”

“lewd,” “disturb[ed] the peace and comfort of other guests,” or “injure[d] the

reputation, dignity, or standing” of the Ritz. See Fla. Stat. § 509.141(1). Dragging

a woman away from the man with whom she is dancing “disturbs [her] peace and

comfort.” See id. Bending over to display one’s rear to the band at a black tie

event “injures the . . . [Ritz’s] dignity.” See id. Justin telling a hotel employee to

“fucking leave [him and his family] alone” is profane. See id. The Ritz had the

right to eject Justin, so Barner did not breach any duty by having law enforcement

notify Justin that he was no longer welcome at the event and escort him off the

property.
16

The second duty that the Zivojinovichs assert Barner and the Ritz breached

was a duty to give truthful information to law enforcement. The Zivojinovichs

point out three sets of statements that they claim breached this duty: (1) Barner’s

statement in his call to the Sheriff’s Department; (2) Sorrell’s statements in her call

to the Sheriff’s Department; and (3) Barner’s statements to Deputy Knott when

they spoke in the Ritz ballroom. The elements of a negligence claim under Florida

law are: (1) a legal duty on the defendant to protect the plaintiff from particular

injuries; (2) the defendant’s breach of that duty; (3) the plaintiff’s injury being

actually and proximately caused by the breach; and (4) the plaintiff suffering actual

harm from the injury. Clay Elec. Coop., Inc. v. Johnson, 873 So. 2d 1182, 1185

(Fla. 2003).

Barner, Sorrell, and the Ritz had a duty to tell the truth when speaking to law

enforcement about Justin. Florida courts have held that, under certain

circumstances, a party that gives inaccurate statements to police can be liable for

negligence. See Townsend v. Westside Dodge, Inc., 642 So. 2d 49 (Fla. 1st DCA

1994); Harris v. Lewis State Bank (Harris III), 482 So. 2d 1378, 1384–85 (Fla. 1st

DCA 1986). The decision with facts most similar to the present one on this point

involved a woman, Jessie Mae Harris, who was incorrectly informed by bank

employees that she was entitled to the money in a certain account, even though she
17

told them that she did not have an account at the bank. Harris v. Lewis State Bank

(Harris I), 436 So. 2d 338, 339 (Fla. 1st DCA 1983) (recounting the facts

underlying the decision in Harris III). After Harris withdrew the money from the

account, the real owner reported the theft to the police. Id. When interviewed, the

bank employees did not disclose to the police or the prosecutor that they had told

Harris that she was entitled to the money. Id. After being prosecuted for grand

larceny and acquitted, Harris sued the bank and the police for malicious

prosecution and negligence. Harris III, 482 So.2d at 1379; Harris I, 436 So. 2d at

340. The Florida appeals court reversed the trial court’s dismissal of the

negligence claim against the bank, holding that the “relationship voluntarily

entered into by the bank . . . created a duty on the part of the bank to protect

[Harris] from false accusations of forgery and theft.” Id. at 1385. The voluntary

relationship, presumably created by informing Harris that she was entitled to the

money, and the bank’s knowledge that failing to disclose that fact would “likely . .

. result in injury to” Harris created the duty to fully and accurately inform the

police. Id. at 1384–85.

The situation in the Harris case is similar to the one here. The Harris III

decision held that the bank had incurred a duty to Harris when it caused her to

believe that she had a legal right to the money in the account. Likewise, the Ritz
18

incurred a duty to Justin when it sold him a ticket to the New Year’s Eve party

because a hotel has “a continuing legal duty to its patrons to use ordinary care to . .

. protect them from harm due to reasonably foreseeable risks of injury.” Hardy v.

Pier 99 Motor Inn, 664 So. 2d 1095, 1097 (Fla. 1st DCA 1995). When the bank

employees failed to disclose to the police that they had told Harris that she was

entitled to the money, they knowingly put her at risk of being wrongfully

prosecuted. Likewise, when Barner and Sorrell allegedly lied to the dispatcher and

when Barner allegedly lied to Deputy Knott, they knowingly put Justin at greater

risk of physical injury because it became more likely that the deputies would use

force in removing Justin from the premises if they believed that Justin had

indicated that someone would have to force him to leave. Whether that increased

likelihood is enough to satisfy the causation element is a separate question that we

address below. We conclude that, under Florida law, Barner and the Ritz had a

duty not to lie to law enforcement in a way that increased the risk that a guest

would suffer injury.

Sorrell breached this duty when she said that “disorderly people” were “just

basically trashing the place[,] . . . jumping on furniture, [and] ripping things apart”

because this was untrue and, by exaggerating the severity of Justin’s misbehavior,

she increased the risk that the deputies would use force to remove him from the
19

premises. Barner breached this duty by lying to Deputy Knott, falsely telling him

that, in response to being informed that he would be removed if he went on stage

again, Justin had told him to “[f]uck off” and had challenged Barner’s or the

Sheriff’s Office’s ability to do anything about his behavior. Also, Barner lied to

the dispatcher when he called the Sheriff’s Office, saying that when he tried to

warn Justin, Justin “started yelling profanities, screaming, yelling and carrying

on.” While Justin’s behavior was inappropriate, he and Barner had not yet spoken

when Barner called the Sheriff’s Office, therefore Justin could not have “started

yelling profanities, screaming, yelling and carrying on” in response to Barner’s

nonexistent admonition.

The third element of the Justin’s negligence claim is that Barner and/or

Sorrell’s lies were the actual and proximate cause of his injuries. Clay Elec. Coop.,

Inc., 873 So. 2d at 1185. The actual causation inquiry requires us to determine

whether a reasonable jury could find that, but for Sorrell’s and Barner’s lies, Justin

would not have been injured or would not have been injured as severely. Justin

has not created a genuine issue of material fact that Sorrell’s call was a cause of the

Justin’s injuries, because there is no evidence in the record to show that what she

said was ever communicated to any of the deputies who eventually responded. A

factfinder could find, however, that at least one falsehood from Barner’s call did
20

make it through to Deputies Russell and Knott. There is evidence that they were

told that two men were causing a disturbance by being unruly and uncooperative

and getting on stage. Although Justin, Alex, and Justin’s friend did get on stage

and were arguably unruly, no one had yet asked any of them to stop being

disruptive, so they could not have been uncooperative. Even if the deputies had

not heard anything before arriving, Barner’s embellishments to Knott may have

created a false mix of information presented to the deputies, which necessarily

affected their decision about when force was reasonable and necessary. See

generally Saucier v. Katz, 533 U.S. 194, 207, 121 S. Ct. 2151, 2159 (2001)

(“Excessive force claims . . . are evaluated for objective reasonableness based upon

the information the officers had when the conduct occurred.”). A jury could find

that, but for Barner falsely telling Knott that Justin had responded belligerently to

the threat of sheriff’s deputies being called, Justin would not have been injured or

that his injuries would not have been as severe.

The closer issue is whether the false information given to law enforcement

by Barner was the proximate cause of Justin’s injuries. If a reasonably prudent

person could foresee that a harm like the one that the plaintiff suffered might result

from his or her actions, then there is proximate causation. See Goldberg v. Fla.

Power & Light Co., 899 So. 2d 1105, 1116 (Fla. 2005). Barner and the Ritz argue
21

that Barner could not be the proximate cause of Justin’s injuries because the

deputies’ actions and those of the Zivojinovichs themselves were unforeseeable. In

support of their position, they rely on Florida cases that hold that there is generally

no liability for the acts of third persons. See, e.g., Trianon Park Condominium

Ass’n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985); Allen v. Babrab, Inc., 438

So. 2d 256 (Fla. 1983). However, under Florida law, when an “independent

intervening cause is a foreseeable and probable consequence of the wrongful

actions of the defendant,” the defendant can be liable. Guice v. Enfinger, 389 So.

2d 270, 271 (Fla. 1st DCA 1980); see Goldberg, 899 So. 2d at 1116. This principle

includes a defendant’s negligence that later results in injuries from police officers

executing their duties. See Townsend, 642 So. 2d 49; Harris III, 482 So. 2d at

1384–85.

In Townsend a car dealership accidentally affixed a magnetic dealer’s tag to

the wrong vehicle and, not knowing where it was, had the loss reported to the

police. Townsend, 642 So. 2d at 50. The police logged the tag as being stolen

instead of simply lost. Id. A woman purchased the vehicle with the supposedly

stolen tag. Id. That evening, a police officer noticed the vehicle, ran the tag

number, discovered it was reported stolen, and arrested the woman. Id. During the

arrest, the woman was handcuffed, which aggravated a preexisting shoulder injury. 
22

Id. The dealership’s negligence in permitting the woman to leave the lot with the

lost tag was held to be a proximate cause of her shoulder injury because it “set in

motion a series of events culminating in the stop of [the woman]’s vehicle[,] [and,]

. . . [u]nder the circumstances, the action of the police in both detaining and

arresting the driver . . . [was] reasonably within the scope of the danger that could

result from [the dealership]’s negligent action.” Id. at 51.

As in Townsend, in this case the allegedly wrongful conduct of a

party—here Barner, there the dealership—caused law enforcement officials to

initiate an encounter in which the plaintiff was injured. In Townsend there was no

particular reason to believe that the arresting officer would use force or injure the

plaintiff, but the Florida appeals court still found that the causation element was

met. Here, by contrast, Barner made Justin’s encounter with law enforcement

more likely to be violent by falsely telling Deputy Knott that Justin had stated an

intention to resist the deputies. For that reason, there is arguably a stronger causal

connection in this case than there was in Townsend. A reasonable factfinder could

conclude that Barner’s alleged lies caused or exacerbated Justin’s injuries.

The final element necessary to make out a negligence claim is that the

defendant’s breach results in an actual harm. Clay Elec. Coop., Inc., 873 So. 2d at

1185. The deputies repeatedly shot Justin with a taser gun, and the pain and
23

injuries he suffered are actual harms.

Having found that Barner had a duty not to lie to law enforcement in a way

that made it more likely that the Ritz’s guests would be hurt, that he allegedly

breached that duty, and that a reasonable jury could find that his breach was the

actual and proximate cause of Justin’s injuries, we conclude that the district court

erred in granting Barner summary judgment. And, if Barner is not entitled to

summary judgment, then the Ritz, which is vicariously liable for torts committed

by Barner in the scope of his employment, is not either. See Pope, 939 So. 2d at

187.

V.

The Zivojinovich’s fourth contention is that the district court erred in

granting summary judgment to Barner and the Ritz on Alex’s negligence claim. 

Their argument is that Barner’s negligence led to Alex’s injuries because Alex was

hurt while attempting to rescue Justin. While they are correct that Florida law

recognizes the rescue doctrine, which holds a tortfeasor liable for injuries to a third

party who is hurt in an attempt to rescue the direct victim of the tortfeasor, see

Zwinge v. Hettinger, 530 So. 2d 318, 323 (Fla. 2d DCA 1988), they have not

convinced us that doctrine applies to Alex. The rescue doctrine will only permit

recovery if “the attempted rescue is not recklessly or rashly done” and the rescuer
24

does not “contribute to his [own] peril by placing himself in a position of danger

not necessary to effect the rescue.” Rose v. Peters, 82 So. 2d 585, 586 (Fla. 1955);

Reeves v. N. Broward, 821 So. 2d 319, 321 (Fla. 4th DCA 2002) (“For the rescue

doctrine to come into play . . . the rescuer must have acted reasonably.”).

Alex’s effort to rescue his son consisted of trying to push past Deputy

Stanford and cover Justin’s body with his own. That happened after Deputy Knott

had pointed a taser gun at Alex and told him not to interfere. Attempting to get

between a law enforcement officer and an apparently noncompliant suspect is both

reckless and rash. Alex’s actions unreasonably escalated an already volatile

situation, increasing the risk to everyone and making his rescue attempt

counterproductive. We conclude that Alex cannot invoke the rescue doctrine. 

Without it he cannot make out a claim against Barner and the Ritz for negligence. 

Therefore, the district court was correct to grant summary judgment to Barner and

the Ritz on Alex’s negligence claim.

VI.

The Zivojinovichs’ fifth and final contention is that the district court erred

by finding that the deputies did not use excessive force in violation of the Fourth

Amendment and that, even if they did, they were entitled to qualified immunity. 

The Zivojinovichs argue that the deputies used excessive force once against Justin
25

and once against Alex. The alleged excessive force against Justin occurred when

Deputies Knott and Stanford held Justin’s arms as they escorted him out of the

Ritz. The alleged excessive force against Alex occurred when Deputy Knott and

an unnamed sheriff’s deputy used their taser guns on him when he was handcuffed

and being led to the deputies’ cars. The Zivojinovichs do not contend on appeal

that the deputies used excessive force during the fight in the stairwell.

Qualified immunity shields public officials from suits against them in their

individual capacities for torts committed while performing discretionary duties

unless the tortious act violates a clearly established statutory or constitutional right. 

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The

parties agree that the deputies were engaged in a discretionary duty while escorting

Justin off of the Ritz’s property, so the burden is on the Zivojinovichs to show why

the deputies are not entitled to qualified immunity. Dahl v. Holley, 312 F.3d 1228,

1233 (11th Cir. 2003).

Qualified immunity requires a two-step inquiry. The threshold question is

whether “[t]aken in the light most favorable to the party asserting the injury, . . .

the facts . . . show the officer’s conduct violated a constitutional [or statutory]

right.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. When, as here, qualified

immunity “arises in the posture of a motion for summary judgment, we are
26

required to view all facts [in the record] and draw all reasonable inferences in favor

of the nonmoving party.” Brosseau v. Haugen, 543 U.S. 194, 195 n.2, 125 S. Ct.

596, 597 n.2 (2004). Then, “if a violation could be made out on a favorable view

of the parties’ submissions, the next, sequential step is to ask whether the right was

clearly established.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156.

Turning to Justin’s excessive force claim, we first consider whether a

reasonable jury could find that there was a Fourth Amendment violation. Because

even de minimis force will violate the Fourth Amendment if the officer is not

entitled to arrest or detain the suspect, see Bashir v. Rockdale County, Ga., 445

F.3d 1323, 1332 (11th Cir. 2006), we must first determine whether the deputies

had probable cause to arrest Justin. 

Florida law makes it a first degree misdemeanor to “resist, obstruct, or

oppose any officer . . . in the execution of legal process or in the lawful execution

of any legal duty, without offering or doing violence to the person of the officer.” 

Fla. Stat. § 843.02. The two elements of resisting arrest without violence are: (1)

“the officer must be engaged in the lawful execution of a legal duty”; and (2) “the

defendant’s action, be it by words, conduct or a combination thereof, must

constitute obstruction or resistance of that lawful duty.” N.H. v. State, 890 So. 2d

514, 516–17 (Fla. 3rd DCA 2005). “Legal duties” encompass more than just
27

making arrests. Jacobson v. State, 476 So. 2d 1282, 1287 (Fla. 1985) (“[S]ection

843.02 . . . does not require that the officer be attempting to arrest the suspect.”). 

Here, the deputies were lawfully executing their legal duty by informing

Justin that he was no longer allowed to be on the Ritz’s property, escorting him

out, and giving him a trespass warning. See Williams, 751 So. 2d at 172. Before

escorting Justin out, the deputies told him to sit. He did for a moment, but then he

stood up again. Deputy Stanford had to order him to sit again. In N.H., the Florida

appeals court affirmed a conviction for resisting an officer without violence in the

case of a juvenile suspect who was agitated and aggressive, cursed, “refused a

police request to sit down,” and “menacingly raised his fists at” officers

investigating a crime. Id. at 515–16. Like the defendant in N.H., Justin disobeyed

a command by members of law enforcement to sit while they executed their lawful

duties. Although Justin’s actions were not as egregious as those of the defendant

in N.H., the standard for probable cause is significantly lower than the proofbeyond-a-reasonable-doubt standard applied to convictions. See Lee v. Ferraro,

284 F.3d 1188, 1195 (11th Cir. 2002) (“Although probable cause requires more

than suspicion, it does not require convincing proof, and need not reach the [same]

standard of conclusiveness and probability as the facts necessary to support a

conviction.”). We conclude that the deputies had probable cause to arrest Justin
28

for resisting arrest without violence. 

That conclusion, however, does not end our inquiry. We must now

determine whether the force used was unreasonable. “The ‘reasonableness’

inquiry in an excessive force case is an objective one: the question is whether the

officer’s actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting him, without regard to his underlying intent or motivation.” Kesinger

v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). “In order to determine

whether the amount of force used by a police officer was proper, a court must ask

‘whether a reasonable officer would believe that this level of force is necessary in

the situation at hand.’” Lee, 284 F.3d at 1197 (11th Cir. 2002) (citation omitted). 

This must be decided “on a case-by-case basis from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Post v. City of

Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (internal quotation marks

omitted). 

During his deposition, Justin testified that Deputy Knott’s grip on his arm

did not hurt. As such, it was de minimis. De minimis force will only support a

Fourth Amendment excessive force claim when “an arresting officer does not have

the right to make an arrest.” Bashir, 445 F.3d at 1332. However, as we have just

discussed, there was probable cause to arrest Justin for resisting an officer without
29

violence, so de Knott’s grip cannot be the basis for an excessive force claim. See

Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (“[T]he application of de

minimis force, without more, will not support a claim for excessive force in

violation of the Fourth Amendment.”). 

With regard to Deputy Stanford, Justin testified that she pulled his arm up at

an uncomfortable angle while escorting him out. We conclude that, from the

perspective of a reasonable deputy in Stanford’s position, this was not an

unreasonable use of force. Stanford knew that Justin had caused a disturbance,

was going to be escorted out of the hotel, and had disobeyed her instruction to

remain seated. Under these circumstances, using an uncomfortable hold to escort

an uncooperative and potentially belligerent suspect is not unreasonable. See

Rodriguez v. Farrell, 280 F.3d 1341, 1345 (11th Cir. 2002) (holding that, when

arresting an unresisting suspect believed to have outstanding warrants on drug

charges, “grabb[ing] [a suspect’s] left arm, twist[ing] it behind [his] back, and

forced it up to just below the shoulder-blade” was not excessive force even when

the suspect screamed with pain). 

The district court did not err in granting summary judgment to Deputies

Knott and Stanford on Justin’s excessive force claims against them. Because we

conclude that there was no Fourth Amendment violation, we need not address the
30

second prong of the qualified immunity analysis. 

The Zivojinovichs also argue that Deputy Knott and the other deputy who

held Alex as he was being led out of the Ritz in handcuffs used excessive force

when they used their taser guns on him. The deputies clearly had probable cause to

arrest Alex for resisting an officer with violence, a violation of Fla. Stat. § 843.01,

so the only issue here is whether the use of the taser guns was unreasonable. At the

time the deputies used their taser guns, Alex’s nose had already been broken, and

he sprayed blood when he spoke. Knott testified that he believed it was

intentional. Although we view the facts in the light most favorable to the nonmoving party, Tinker, 429 F.3d at 1326, and Alex testified in his deposition that it

was not intentional, we must treat it as though it were because the evidence is that

is how it would appear to a reasonable officer at the scene. See Post, 7 F.3d at

1559. We have previously held that in a “difficult, tense and uncertain situation”

the use of a taser gun to subdue a suspect who has repeatedly ignored police

instructions and continues to act belligerently toward police is not excessive force. 

Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004). This was such a

situation, and we conclude that Knott’s use of his taser gun was reasonably

proportionate to the need for force. Because Knott’s use of the taser gun while

leading Alex out of the Ritz in handcuffs was not unreasonable, we do not reach
31

the well-established prong of the qualified immunity analysis.

VII.

We REVERSE the district court’s grant of summary judgment to the RitzCarlton Hotel and Frank Barner on Justin Zivojinovich’s negligence claim and

AFFIRM the remainder of the district court’s judgment. The case is REMANDED

for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.