           Case: 18-12283   Date Filed: 10/01/2019   Page: 1 of 10


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12283
                       ________________________

                  D.C. Docket No. 9:17-cv-80765-DMM



JACQUELINE B. OMBRES,

                                              Plaintiff - Appellant,
versus

CITY OF PALM BEACH GARDENS, FLORIDA,

                                              Defendant - Appellee.

                       ________________________

                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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