Court Says City Immune From Some Claims Stemming From Police Officer’s Fatal Taser Use – Bussey-Morice v. Kennedy

Another day, another case in which a court looks at personal injury claims against a government entity. In Bussey-Morice v. Kennedy, the U.S. District Court for the Middle District of Florida explains that some of those claims are barred by sovereign immunity.

Mr. Bussey died during a December 2009 encounter with police in the City of Rockledge. The officers, who were responding to a call from Wuesthoff Hospital, deployed their tasers on Bussey three to six times during the incident. He was later pronounced dead. A medical examiner said the cause of death was “cocaine excited delirium,” but also observed other conditions, including pulmonary emphysema and lung adhesions.

A personal representative for Bussey’s estate sued the city and each of the individual officers allegedly involved in the tasing in federal court, alleging claims for excessive force, battery and wrongful death due to negligent training. Granting partial summary judgment to the defendants, the District Court said the claims were barred by sovereign immunity.

City, county and state government entities are generally subject to suit only where the Florida legislature has authorized the suit or the entity is found to have waived its immunity. Section 768.28 waives sovereign immunity from liability for torts, or personal injury claims, provided that the person suing (plaintiff) gives pre-suit notice to the entity being sued within three years from when the claim accrues. However, 768.28(9)(a) clearly states that a city or state isn’t liable for the acts of an “officer or agent” which are “committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

Here, the court said the battery claims were covered by the latter provision because the personal representative alleged that the police officers deployed their tasers in bad faith or with malicious purpose. The court pointed in particular to the personal representative’s complaint, in which she alleged that the officers’ conduct “shows evil motive or intent, and/or shows reckless or callous indifference.”

The court also granted summary judgment to the city on the wrongful death due to negligent training claim, concluding that sovereign immunity also protected the city from this claim because it centered on a “discretionary function.” The court explained that the various waivers of sovereign immunity in place in Florida don’t apply to “discretionary” acts, but only to those that are simply “operational.” Under state law, “a ‘discretionary function’ is one in which the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning,” the court wrote.

In this case, the court said the wrongful death claim challenged the city’s policy decision on how to train it’s officers. Specifically, the personal representative alleged that the city failed to properly train its officers so that they weren’t adequately prepared to safely handle the situation when they encountered Bussey at the hospital. Finding that this centered on a fundamental policy question, the court ruled that the city was entitled to sovereign immunity.

Despite the ruling, it’s important to note that the court did not dismiss a third and final claim against the city for excessive force under federal civil rights law. That claim appears to be headed to trial.

It’s important that a person thinking about suing a government agency consult an experienced personal injury attorney in order to consider sovereign immunity and other issues that may come up in the litigation. The South Florida personal injury lawyers at Anidjar & Levine have significant experience representing clients throughout the region, including in Pompano Beach, Hialeah and Coral Springs, in a wide range of personal injury actions. Call us at 800-747-3733 or contact us online for a free consultation.

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