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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12283
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D.C. Docket No. 9:17-cv-80765-DMM
JACQUELINE B. OMBRES,
Plaintiff - Appellant,
versus
CITY OF PALM BEACH GARDENS, FLORIDA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 1, 2019)
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
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Appellant Jacqueline Ombres appeals from the district court’s order granting
summary judgment in favor of the City of Palm Beach Gardens, Florida (“the City”).
After careful review, we affirm.
I. Background
Ombres, the representative of Kayle Claypoole’s estate, sued the City in
Florida state court for negligence and the negligent supervision, training, and
retention of police officer Tatsuaki Hayashi. The complaint alleged that, on June 8,
2015, 18-year-old Claypoole was a passenger in a car driven by her boyfriend,
Taylor Giese, when Hayashi attempted to stop the car for speeding 15 miles per hour
over the posted limit. According to the complaint, Giese did not stop the car and
instead fled Hayashi’s attempted traffic stop. Then, Ombres claimed, Hayashi
“initiated high speed pursuit, complete with emergency lights,” and “closely
pursued” the car through a red light and residential neighborhood at almost 100 miles
per hour.
The complaint further averred, “[a]s could have and should have been
foreseen,” the car Giese was driving, in which Claypoole was a passenger, “violently
collided with a truck parked on the side of the road.” Giese died on impact, and
Claypoole died at a hospital. In support of the incident’s foreseeability, the
complaint alleged that the City’s police department had a policy against police
pursuits, unless the person sought was a suspected violent criminal.
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The City moved to dismiss the case on the basis that Hayashi did not owe a
duty of care to the passenger of a car in a police pursuit, such as Claypoole. The
state court denied the motion in part because, in Fisher v. Miami-Dade County,
Florida’s Third District Court of Appeal recognized that an officer in a police pursuit
might have a duty of care toward a known, unwilling passenger of the fleeing
vehicle, such as a kidnapped victim.
883 So. 2d 335 (Fla. 3d DCA 2004).
Nevertheless, the trial court made clear that the City could renew its argument at a
later stage of the proceeding.
Ombres subsequently amended her complaint to include claims that the City
violated Claypoole’s federal constitutional rights under 42 U.S.C. § 1983, and the
City removed the case to federal court.
The City moved for summary judgment. It argued that the officer did not owe
Claypoole a duty of care under Florida law and that the lack of duty of care meant
that Ombres’s federal claims necessarily failed. Ombres responded that the officer
did owe Claypoole a duty of care under Florida law. And Ombres and the City
disputed whether the record evidence demonstrated that the officer had a reason to
know that the fleeing car had a passenger.
The district court concluded that the officer did not owe Claypoole a duty of
care and granted the City’s motion for summary judgment. The district court based
its decision on this analysis of the applicable Florida law:
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Tort relief is available to innocent bystanders injured as a
result of high speed chases of fleeing subjects. See City of
Pinellas Park v. Brown,
604 So. 2d 1222 (Fla. 1992).
However, no duty of care is owed to active law breakers
injured from high speed chases. Bryant v. Beary,
766 So.
2d 1157 (Fla[]. 5th DCA 2000). In Fisher v. Miami-Dade
County,
883 So. 2d 335 (Fla. 3d DCA 2004), the court
considered whether a passenger in a fleeing vehicle should
be characterized as a law breaker or an innocent bystander
for purposes of tort liability. The Court held that police do
not owe a duty of care to a passenger in a vehicle that is
breaking the law by fleeing from police. Fisher,
883 So.
2d at 337. Moreover, there is no “innocent passenger”
exception to the rule in Fisher. See Bridges v. Seminole
County,
2008 WL 638330 (M.D. Fla. 2008) (Antoon, J.)
(granting motion to dismiss based upon lack of duty owed
to passenger killed as a result of a police chase, noting the
existence of a duty is “not a fact-dependent inquiry” and
acknowledging that the Florida appellate court decision in
Fisher was controlling).
Having concluded that the officer did not owe Claypoole a legal duty, the court
granted the City’s motion for summary judgment as to Count I of the complaint. The
court granted the City’s motion as to the other counts of Ombres’s complaint for
reasons that are not at issue on this appeal.
This appeal followed.
II. Standard of Review
We review the district court’s summary-judgment decision de novo, viewing
all facts in the light most favorable to the nonmovant and drawing all reasonable
inferences in favor of that party. Tobinick, MD v. Novella,
848 F.3d 935, 943 (11th
Cir. 2017).
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III. Discussion
The only issue on appeal is whether the district court properly concluded that,
under Florida law, Hayashi owed no duty of care to Claypoole. We agree with the
district court and conclude that under Florida law, Hayashi did not.
We apply Florida law to Florida claims heard on the basis of supplemental
jurisdiction. Jones v. United Space All., L.L.C.,
494 F.3d 1306, 1309 (11th Cir.
2007). In interpreting Florida law, we “look first for case precedent from the Florida
Supreme Court.” Winn-Dixie Stores, Inc. v. Dolgencorp, LLC,
746 F.3d 1008, 1021
(11th Cir. 2014). Where Florida Supreme Court precedent does not exist, we are
“bound to adhere to decisions of the state’s intermediate appellate courts absent
some persuasive indication that the state’s highest court would decide the issue
otherwise.”
Id. (quoting Provau v. State Farm Mut. Auto. Ins. Co.,
772 F.2d 817,
820 (11th Cir. 1985)).
We therefore turn to Florida law. To establish a cause of action for negligence
under Florida law, a plaintiff must prove “a duty, breach of that duty, causation, and
damages.” Virgilio v. Ryland Grp., Inc.,
680 F.3d 1329, 1339 (11th Cir. 2012)
(citing Curd v. Mosaic Fertilizer, LLC,
39 So. 3d 1216, 1227 (Fla. 2010)). Under
Florida law, “where a defendant’s conduct creates a foreseeable zone of risk, the law
generally will recognize a duty placed upon defendant either to lessen the risk or see
that sufficient precautions are taken to protect others from the harm that the risk
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poses.” Kaisner v. Kolb,
543 So. 2d 732, 735 (Fla. 1989). Following that general
principle, the Florida Supreme Court has held that “a high-speed chase involving a
large number of vehicles on a public thoroughfare is likely to result in injury to a
foreseeable victim,” so the law “must recognize a duty” that the police diminish the
risk that the chase poses to innocent bystanders. City of Pinellas Park v. Brown,
604
So. 2d 1222, 1225 (Fla. 1992).
The Florida intermediate appellate courts have since decided cases where the
plaintiff was in the fleeing vehicle, as opposed to cases where the plaintiff was a
bystander. First, the Fifth District Court of Appeal held that the police did not owe
a duty of care to active law breakers who are injured as the result of a high-speed
chase. Bryant v. Beary,
766 So. 2d 1157, 1160 (Fla. 5th DCA 2000).
A few years later, the Third District Court of Appeal addressed whether a
police officer owed a duty of care to a passenger of a fleeing vehicle in a police
pursuit and concluded that the officer did not. The plaintiff in Fisher v. Miami-Dade
County was a passenger in a car fleeing police at 100-120 miles per hour.
883 So.
2d 335, 335-36 (Fla. 3d DCA 2004). The Fisher court recounted the holdings in
Brown and Bryant and observed that “[t]he question raised in this case falls
somewhere between” the circumstances in those cases.
Id. at 337. Having identified
the relevant question, the court next recounted the holdings of out-of-state cases,
which had uniformly found that “police do not owe a duty of care to a voluntary
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passenger in a car fleeing from the police.”
Id. (citing Fawcett v. Adreon,
2001 WL
950159 (Tenn. Ct. App. 2001), Parish v. Hill,
513 S.E.2d 547 (N.C. 1999), and
Robinson v. City of Detroit,
571 N.W.2d 34 (Mich. Ct. App. 1996)). Then the Fisher
court added “an additional factor” to the other jurisdictions’ analysis:
This factor is the overwhelming burden placed on the
police to perform the impractical, if not impossible task of
determining, even if they knew a passenger was in a car,
whether that passenger was a participant in a crime. By
requiring police officers to first determine if there was a
passenger and then determining if the passenger was
involved in a crime would essentially halt any police
pursuit. That result makes no sense considering that the
police are our thin blue line protecting society.
Fisher,
883 So. 2d at 337; accord Bridges v. Seminole Cty.,
2008 WL 638330, at *3
(M.D. Fla. 2008) (applying Fisher and finding that a police officer did not have a
duty of care toward an innocent passenger of a fleeing vehicle). In a footnote, one
judge in a special concurrence allowed for the “real possibility of a different result
if it is shown, even after the accident and unknown to the officer, that a child or
unwilling, perhaps kidnapped adult, has been present.” Fisher,
883 So. 2d at 337
n.1 (Schwartz, C.J., concurring specially).
The facts of Ombres’s case are materially indistinguishable from those in
Fisher. Like Fisher, Claypoole was a passenger in a car fleeing the police. And
though the evidence at summary judgment viewed in her favor did not show that she
encouraged the unlawful behavior, neither did it establish that the officer had reason
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to believe she was an unwilling passenger such as a kidnapping victim. Under those
circumstances, Florida law treats the passenger of a fleeing car no differently than it
does the driver of the car and does not impose a duty of care upon the pursuing
officer. This is so because, the Fisher court concluded, to do otherwise would place
on the officer an “overwhelming burden” of the “impractical, if not impossible task
of determining” whether the passenger was a participant in the crime. Fisher,
883
So. 2d at 337.
The parties agree that the Florida Supreme Court has not addressed the issue
of whether police officers have a duty under Florida state law to a passenger of a
fleeing vehicle. We must therefore adhere to the decision of the Third District Court
of Appeal in Fisher unless we find “some persuasive indication that the [Florida
Supreme Court] would decide the issue otherwise.” Winn-Dixie Stores,
Inc., 746
F.3d at 1021.
We perceive none. Ombres argues that the Florida Supreme Court’s decision
in City of Pinellas Park v. Brown,
604 So. 2d 1222 (Fla. 1992), indicates that the
court would decide Fisher differently. In Brown, though, the Florida Supreme Court
did not address the issue in Fisher. Rather, it considered the more general question
of whether police officers owed a duty of care to innocent bystanders who were not
passengers in the fleeing car.
Brown, 604 So. 2d at 1225-26. Brown also predated
Fisher, and the Third District Court of Appeal expressly discussed Brown when
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reaching its decision. Fisher,
883 So. 2d at 336-37. Moreover, we see no
inconsistency between Brown and Fisher.
We further note that even assuming Chief Judge Schwartz’s special
concurrence gave a reason to believe the Florida courts might find liability in the
case of an unwilling passenger, in the district court and on appeal here, Ombres does
not argue that record evidence demonstrates that Claypoole was an unwilling
passenger, so the Chief Judge Schwartz’s special concurrence does not provide a
reason why the Florida Supreme Court would decide Fisher differently.
Finally, Ombres tries to distinguish Fisher on the basis that the court there did
not have an opportunity to address her statutory argument and that, if that argument
were before the Florida Supreme Court, it would decide the issue differently. We
disagree because another Florida intermediate-appellate-court ruling forecloses that
conclusion.
Ombres contends that, under Florida Statute § 316.072(5), police officers have
a statutory duty of care to “all persons,” including all passengers of fleeing cars. In
Bryant, however, the Fifth District Court of Appeal expressly rejected that argument.
Specifically, that court held that the statute at issue was “not intended to create a
duty where none exists, but to preserve any that do exist.” Bryant,
766 So. 2d at
1160. Ombres offers no reason why the Florida Supreme Court would decide Bryant
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differently, so we are bound by the conclusion of the Fifth District Court of Appeal
on that issue. Winn-Dixie Stores,
Inc., 746 F.3d at 1021.
AFFIRMED.
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