City’s Immunity Bid Crashes and Burns

Florida’s police pursuit immunity statute, section 768.28(9)(d), Florida Statutes, protects a law enforcement agency from liability for injuries caused by a driver fleeing one of its officers — but only if the agency proves three separate conditions. In City of Tampa v. Foottit, the Second District Court of Appeal held that the City could not obtain police pursuit immunity on summary judgment because the record disputed all three. Here is the case brief.

(a) Facts

Case. City of Tampa v. Christopher Foottit and Cynthia Foottit, No. 2D2024-0833 (Fla. 2d DCA Oct. 16, 2024). Judge Lucas wrote the opinion; Chief Judge Sleet and Judge Kelly concurred. The appeal was taken from a nonfinal order of the Circuit Court for Hillsborough County, Judge Melissa M. Polo.

Parties. The appellant (defendant below) is the City of Tampa, the employing agency of Tampa Police Department (TPD) Officer Darrin Gibson. The appellees (plaintiffs below) are Christopher and Cynthia Foottit, who were seriously injured in the crash that ended Officer Gibson’s pursuit.

The dispatch. On March 12, 2022, Officer Gibson received a “signal 10” dispatch — TPD’s code for an automobile theft — about a stolen Nissan truck. Neither the dispatch nor the BOLO mentioned a burglary; TPD uses “signal 21” for burglary suspects. Gibson nonetheless testified that he understood the call to involve a “signal 21 suspect.” When he spotted the truck on patrol, he could not see the driver (later identified as a juvenile), and the truck was not being driven erratically or in violation of any traffic law.

The pursuit. Gibson activated his lights, and the truck sped off. The chase lasted about 14 minutes and covered 19 miles, running beyond the city limits into unincorporated Hillsborough County. Speeds ranged from 75 to 105 mph, and the pursuit went through three or four red lights. Because of mechanical issues, no backup officers were available, and at one point Gibson drove with one hand on the wheel so he could radio in his speed. TPD’s policy did not require supervisor authorization, and Gibson did not seek approval from his supervisor, Lieutenant Guadion.

The crash. Around 11 p.m., on Turkey Creek Road — a dark, single-lane road bordered by a ditch — near a gas station and Trapnell Road, the truck slammed into the rear of the Foottits’ Honda Civic, which Mr. Foottit was driving. A passenger, a family member, was killed. The Civic was totaled and looked as though it had been “hit by a train.” The Foottits suffered serious, permanent injuries.

At the scene. Body-camera footage captured other officers questioning the chase. One told Gibson he was “picking property over life.” Another asked why officers had not boxed the truck in, noting that it had been going normal speed before the lights came on.

Procedural history. The Foottits sued the City for negligence. The City moved for summary judgment, asserting police pursuit immunity under section 768.28(9)(d). The record included Gibson’s deposition, the body-camera footage, and the affidavit of police-practices expert Robert R. Pusins, who opined that Gibson’s belief was unreasonable, his pursuit reckless, and his conduct a violation of TPD’s pursuit policy. The circuit court denied the motion in a detailed order. The City appealed under Florida Rule of Appellate Procedure 9.130(a)(3)(F)(iii), which allows review of a nonfinal order determining that, as a matter of law, a party is not entitled to sovereign immunity.

Judgment. Affirmed. The order denying the City’s motion for summary judgment stands, and the police pursuit immunity question goes to the jury.

(b) Issues

1. Did the City establish police pursuit immunity under section 768.28(9)(d) as a matter of law, entitling it to summary judgment on the Foottits’ negligence claims?
2. Did the record show a genuine dispute of material fact on any of the statute’s three conditions: (i) whether the pursuit involved conduct so reckless as to disregard human life, safety, or property; (ii) whether Gibson reasonably believed, when he started the chase, that the driver had committed a forcible felony; and (iii) whether the pursuit followed a written high-speed pursuit policy on which Gibson had been trained?

(c) Holding: Police Pursuit Immunity Was a Jury Question

No summary judgment. Section 768.28(9)(d) is written in the conjunctive, so an agency must satisfy all three conditions to claim police pursuit immunity. Because the record showed genuine disputes of material fact on every condition, the City did not carry its summary judgment burden, and the circuit court correctly denied the motion.

(d) Rationale

Standard of review. The Second District reviewed the order de novo, both as a summary judgment ruling and because sovereign immunity presents a question of law (citing Haskell v. PCP Grp., 386 So. 3d 644 (Fla. 2d DCA 2024), and Plancher v. UCF Athletics Ass’n, 175 So. 3d 724 (Fla. 2015)). Under the amended Rule 1.510 standard, the movant must show no genuine dispute of material fact and entitlement to judgment as a matter of law, and it bears the initial burden (Pio v. Simon Cap. GP, 366 So. 3d 1200 (Fla. 2d DCA 2023)).

Statutory framework. Sovereign immunity is a common-law doctrine that Florida has partially waived through section 768.28. Subsection (9)(d), the police pursuit immunity provision, then shields an agency from liability for harm caused by a person fleeing its officer in a motor vehicle — if three conditions are met. Relying on City of New Port Richey v. Lamko, 359 So. 3d 840 (Fla. 2d DCA 2023), the court reiterated that the conditions are conjunctive: an agency seeking police pursuit immunity must establish all three.

1. Reckless Conduct

The pursuit must not involve conduct “so reckless or wanting in care as to constitute disregard of human life, human rights, safety, or the property of another.” The court agreed with the City that this is a high bar, but found a triable issue anyway: a 14-minute, 19-mile chase at night, with no backup, at speeds over 100 mph, through three or four red lights, partly one-handed, ending on a dark single-lane road — all after a driver Gibson never identified, and with a fatal result. A jury could find that conduct reckless enough to defeat police pursuit immunity.

2. Reasonable Belief of a Forcible Felony

To support police pursuit immunity, Gibson had to reasonably believe, when he initiated the pursuit, that the driver had committed a forcible felony as defined in section 776.08. Burglary qualifies; simple theft does not. The dispatch was a signal 10 (theft), not a signal 21 (burglary), and nothing in the dispatch or BOLO mentioned a burglary. The truck was being driven normally before the lights came on. Pusins called Gibson’s belief unreasonable, and the officers’ on-scene comments cut the same way. The court found an “equally apparent dispute” over whether a signal 10 call could reasonably have become, in effect, a signal 21 call.

3. Written Pursuit Policy and Training

The third police pursuit immunity condition requires a written high-speed pursuit policy and officer training on it. TPD’s then-existing policy prohibited pursuits where immediate apprehension could not be made with reasonable safety and the risk to the public outweighed the need to apprehend. It allowed pursuit only on a reasonable belief that the suspect had committed a forcible felony involving force or a burglary of a structure or conveyance, and it required officers to weigh speed, road and weather conditions, time of day, pedestrian traffic, the suspect’s identity, and the nature of the crime.

Pusins testified that Gibson violated that policy and that his training on it was lacking. Whether the pursuit complied with the policy was therefore a disputed issue of material fact. (In a footnote, the court noted that TPD later amended its pursuit policy and that Lieutenant Guadion was reprimanded for failing to adequately supervise the pursuit.)

What the court did not decide. No one disputed that the City could assert sovereign immunity on its officers’ behalf, and no party argued the zone-of-risk or operational-function question. The opinion addresses only whether the circuit court correctly applied the statutory pursuit provision on the summary judgment record.

Bottom line. A dispute on any one condition defeats police pursuit immunity at summary judgment. Here there were disputes on all three, so the circuit court was correct to deny the City’s motion.

Practice Points on Police Pursuit Immunity

• One condition is enough. Because the statute is conjunctive, the agency must prove all three conditions; a claimant needs a genuine dispute on only one to get past summary judgment.
• Fix the officer’s knowledge at the start. The forcible-felony belief is tested when the pursuit begins. Obtain the CAD log, dispatch audio, signal codes, and BOLO. A property-crime code, such as a stolen vehicle, is not a forcible felony under section 776.08.
• Get every officer’s video. Contemporaneous criticism from fellow officers was part of the record here. Request all body-worn and dash camera footage, not just the pursuing officer’s.
• Policy, compliance, and training. A written policy alone is not enough. Discover the policy in effect on the date of the pursuit, training records, and supervisor communications, and evaluate any post-incident discipline or policy changes with the limits on subsequent-remedial-measure evidence in mind.
• Use a police-practices expert. The expert’s opinions on reasonableness, recklessness, and policy compliance helped create the fact disputes that defeated police pursuit immunity here.
• Immediate appeal, but no shortcut. Rule 9.130(a)(3)(F)(iii) lets an agency appeal the denial of immunity right away, but de novo review does not help an agency whose record is disputed.
• Caps and notice still apply. Defeating police pursuit immunity does not lift the section 768.28(5) caps of $200,000 per person and $300,000 per incident; recovery above them requires a legislative claim bill. A 2026 bill to raise the caps (HB 145) was vetoed. Presuit notice under section 768.28(6) is still required.

Read the Opinion

Read the full opinion: City of Tampa v. Foottit, No. 2D2024-0833 (Fla. 2d DCA Oct. 16, 2024) (PDF). It is also available through the Second District Court of Appeal’s opinion search. Questions about a claim involving police pursuit immunity or another Florida government entity? Contact Cox Law, PLLC.

Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading this article or contacting Cox Law, PLLC through this website does not create an attorney-client relationship. You should not act or refrain from acting based on any information in this article without first seeking professional legal counsel. Every case is different, and past results do not guarantee future outcomes.