On February 22, WSH Partners Matthew H. Mandel, Jamie A. Cole and Laura K. Wendell obtained a favorable en banc decision on behalf of the City of Boca Raton in a wrongful death action from the Fourth District Court of Appeal. The issue in the appeal was whether the police, after releasing an impaired person from their custody, owed a duty of care to that person. Holding that the police did not owe a duty of care, the entire panel of judges from Court reversed an earlier decision by 3 of its judges and affirmed the trial court’s dismissal of the plaintiff’s complaint.
In September 2007, Christopher Milanese was arrested by Boca Raton police officers for a number of traffic violations. His car was impounded, and he was taken to the police station. The police thereafter issued him several citations and agreed to release him. The police called for a cab to pick up Milanese, escorted him to the front door, and released him. Unbeknownst to the City, Milanese did not get into the cab. Nearly one hour later, Milanese was struck and killed by a train about a mile from the police station. Milanese’s estate sued the City for negligence, alleging that the city had a “special relationship” that created the duty to insure Milanese’s safety, including releasing Milanese in a safe and reasonable manner. Specifically, the complaint alleged that the City should have escorted Milanese into the cab and not permitted him to wander the streets in an impaired condition. The City moved to dismiss, arguing that the City did not owe a duty of care to Milanese because 1) once released, he was no longer in custody, and 2) the City did not create a foreseeable zone of risk. The lower court granted the City’s motion to dismiss.
In affirming the lower court’s dismissal, the Court held that the City did not owe Milanese a duty of care once he was out of police custody because the City did not create or permit dangers to Milanese to exist, and did not otherwise subject Milanese to danger. Citing Lindquist v. Woronka, 706 So. 2d 358 (Fla. 4th DCA 1998), the Court held that the Plaintiff’s “state-created danger” theory did not apply because the police played no part in creating any danger to Milanese, nor did they make him any more vulnerable to danger.
You can read a copy of the decision here.
Author(s): Matthew H. Mandel & Brooke P. Dolara
