You pull-over someone for running a stop sign. The driver turns out not to have a valid driver’s license. You issue him a ticket and tell him he cannot drive the vehicle. You determine his passenger does have a valid driver’s license, and you order the passenger to drive the vehicle away. The passenger complies, but a few miles down the road he is involved in a major car accident with injuries. Emergency room records show the second tested positive for both excessive alcohol and illegal drugs. Now the injury victims claim you are at fault. They claim that if you had noticed the second driver was high and arrested him for drug use, the accident never would have occurred. They claim you placed them in harm’s way by ordering the second driver to get behind the wheel. Do you have any civil liability here? 

            Your decision not to arrest the second driver for drug use likely is immune from suit under the doctrine of sovereign immunity. Under that doctrine, police departments are protected against civil suits for “discretionary functions.”[i] An officer’s decision of whether to arrest someone is a classic example of a discretionary function, and therefore generally cannot be a basis for civil liability.[ii]      

            But your instructing the passenger to drive presents a thornier issue. This is because the sovereign immunity doctrine contains an important exception: an officer can be liable for discretionary functions when he or she creates a “foreseeable zone of risk.” A case called Henderson v. Bowden[iii] illustrates this concept.

In Henderson, sheriff deputies stopped a driver suspected of intoxication, and ended-up arresting the driver for driving under the influence. The deputies told one of the passengers to drive the vehicle away. The passenger complied but later caused an accident, killing the remaining passengers in the vehicle. The deceased passengers’ estates sued the sheriff’s department for negligence.   

The second driver claimed that during the traffic stop, he told the deputies he was intoxicated. The deputies disputed this allegation, and claimed they administered a field sobriety test, which the second driver passed.   

The trial court threw-out the case, citing the general rule that deputies are immune from suit for discretionary functions. But the Florida Supreme Court reversed that ruling. The supreme court explained this case involved more than just a garden variety discretionary function. Here, the deputies affirmatively told one of the passengers to drive the vehicle away. This instruction placed the vehicle occupants in a foreseeable zone of risk, which in turn created a legal duty for the deputies to use reasonable care. The supreme court concluded that for this reason, the suit against the sheriff’s department should have been permitted to proceed to a trial on the merits. 

Still, this exception is itself constricted by two limitations. First, even if an officer creates a foreseeable zone of risk by affirmatively telling someone to take over the driving, the plaintiff bringing the lawsuit must prove the officer’s actions were really the cause of the accident. That is, the plaintiff must show there is “such a natural, direct, and continuous sequence between the negligence, act or omission and the plaintiff’s injury that it can reasonably be said that but for the negligent act or omission the injury would not have occurred.”[iv] 

For example, suppose the deputies in Henderson told the second driver to drive home, and the second driver complied without incident. But five minutes later the driver leaves his home and then gets into an accident. In such a situation, the deputies’ potential liability likely was extinguished when the driver complied with the instruction to drive home. The driver’s decision to leave his home and get back on the road would be attributable to the driver and not to the deputies.      

Second, the “drug and alcohol defense” may bar liability if the driver is suing for his own injuries. This defense is codified in Florida Statutes Section 768.36. It can completely extinguish liability to the driver if (a) the driver’s faculties were impaired by alcohol / drugs or the driver had a BAL of at least .08; and (b) as a result of the impairment, the driver was 50% or more at fault for causing the accident.  

As explained above, the exception to the sovereign immunity doctrine is limited. Still, the safest course of action in ordering someone to drive a vehicle would be not only to issue a sobriety test, but also to document the test thoroughly.  

* * *

Michael L. Forte is an attorney at the Tampa office of RumbergerKirk, P.A.