The Second District Court of Appeals sided with a Dunedin man, finding he can sue the Pinellas County Sheriff for negligence after he was unwittingly attacked by a police officer K- 9 at a public event.
The appeals court ruled that Pinellas County Circuit Judge Thomas Ramsberger wrongly dismissed Robert McKinley’s suit against Pinellas County Sheriff Bob Gualtieri as barred by sovereign immunity, according to the court’s opinion filed Wednesday.
McKinley filed a lawsuit, alleging a deputy sheriff was negligent in handling a K-9, which allegedly bit McKinley without warning while attending an event at Florida Auto Exchange Baseball Stadium, according to opinion.
The sheriff argued that McKinley had not indicated a viable cause of action and that the lawsuit was barred by sovereign immunity because patrolling the baseball site with the K-9s “was a discretionary function.” .
The sheriff relied on the 1985 decision of the state Supreme Court in Trianon Park Condominium Ass’n c. City of Hialeahwho said:[F]or whether there is tort liability on the part of the government, there must be either an underlying common law duty or a statutory duty of care in respect of the alleged negligent conduct. For some discretionary or basic discretionary government functions, there has never been an applicable duty of care. Furthermore, legislative enactments for the benefit of the general public do not automatically create an independent duty to individual citizens or a special category of citizens. »
The appeals court disagreed, relying on the state high court’s decision in City of Daytona Beach vs. Palmerin which “discretionary discretionary decisions” about how to fight a fire were distinguished “from negligent driving resulting in bodily injury while fire equipment is driven to the scene of a fire or bodily injury to a bystander from careless handling of equipment to the scene,” the opinion stated.
“We see no reason to differentiate between motor vehicles, firearms, firefighting equipment or police dogs as to whether public officials employed by or acting on behalf of a law enforcement agency States have a common law duty of care to innocent bystanders inside. an area of foreseeable risk created by these officials,” Judge Craig C. Villanti wrote on behalf of the appeal panel.
While the decision to patrol the baseball site with the K-9 may have been discretionary, patrolling the site with the K-9 was operational, he added.
“Therefore, McKinley’s lawsuit is not barred by sovereign immunity. Accordingly, we are rescinding the order dismissing McKinley’s Fourth Amended Complaint and remanding it for further proceedings,” Villanti wrote.
Judges Stevan T. Northcutt and Susan H. Rothstein-Youakim agreed.
“We welcome the reasoned opinion of the court, which simply considers that the police are not above the law. Like anyone else, they should be held accountable if they can’t or won’t stop their dog from attacking people,” said Samuel Alexander of Alexander Appellate Law on behalf of McKinley. “This opinion makes it clear that there is no special rule prohibiting liability for unprovoked dog attacks simply because the dog is a K-9.”
The Appeal Panel further found that McKinley adequately sets out a common law cause of action for negligence.
In his fourth amended complaint, McKinley claims the sheriff created an area of predictable risk by “placing bystanders near” the aggressive K-9. McKinley unknowingly entered this area and the K-9 attacked him without warning, biting his right forearm and causing lacerations and punctures, it is believed.
The sheriff’s attorney argued that McKinley had placed himself in the danger zone by approaching the area occupied by the deputy and the police dog.
“This argument is without merit and contradicts the disclaimer law itself, which provides that a person can sue the state or an agency in tort for harm caused by” the act or omission negligent or at fault of any employee”. To see § 768.28(1)”, Villanti wrote. “It is nothing more than a re-statement of black law: the law of tort offers a remedy to a person who suffers injury caused by the action or inaction of another. . .”
On the sheriff’s motion to dismiss the complaint, counsel for the defendant further argued, “If these facts alleged in the Fourth Amended Complaint were sufficient, then we would have the sheriff’s position, and frankly, all forces order with a K-9…having a duty of care to everyone at all times while on patrol in Pinellas County when they have a police dog with them. And it is not. »
“On the contrary, it is exactly the case,” Villanti wrote. “If it wasn’t, a deputy could walk through a crowd (or stand still) with a K-9 while the K-9 attacks anyone who walks by, and the sheriff’s department would be safe. tort liability.”
A message seeking comment from Nicole E. Durkin, an attorney with the Pinellas County Sheriff’s Office, was not immediately returned.