Sovereign immunity in a Burglary Gone Wrong
The police officers and the plaintiff business owner responded to a burglary alarm at the plaintiff’s business. During the incident, the plaintiff business owner was shot by one of the responding officers. The plaintiff filed a complaint against Miami-Dade County, Fla., for negligence based on the wrongful shooting and for negligent retention and supervision of the police officer. In his complaint, the plaintiff alleged that his alarm service informed him of a burglary, he drove to the business with his lawfully owned firearm and that after exiting his vehicle, he was shot from behind by the police officer. After the county obtained the recording from security cameras that had captured the events surrounding the shooting, the county filed a motion for summary judgment asserting that the video footage definitely established that the officer was not negligent because it showed that before he fired his gun, the plaintiff pointed a firearm toward him. The county further argued that it had immunity because the officer acted in self-defense and that he was entitled to sovereign immunity because the officer’s action was discretionary and fell under the police emergency exception.
Can installation begin on a residential alarm system before the required three-day notice period expires? Our salesperson responded to a homeowner requesting a residential alarm system. The salesperson provided the homeowner with a contract and the required three-day notice of right of rescission. Our sales person advised that we were required by law to give a three-day notice to rescind, but the subscriber insisted that we begin installation of the system immediately and not wait. What are our rights?
Under the law you must give a three-day notice of the right to rescind. If you do not do so, then the subscriber has the right to rescind at any time until you give him the notice. If the buyer decides not to keep system within the three-day period, you must return anything that was paid to you within 10 days of receiving the notice of cancellation. If you perform any services prior to the cancellation, then you cannot receive any compensation. With a limited exception, a waiver of this provision is deemed contrary to public policy and is unenforceable. The only time that a waiver may be obtained is when the contract is executed in connection with an emergency, or immediate repairs are necessary for the immediate protection of persons on real or personal property. The rules may vary from state to state, but generally the buyer must give the seller a separate statement that is dated and signed which describes the situation that requires immediate remedy and expressly acknowledges and waives the right to cancel the sale within three-to-seven days, whichever period may apply. In addition, there are provisions which allow repairs or restoration after the date of a disaster. The short answer, do not commence work within the three- day period unless there is an emergency or disaster and the subscriber signs an appropriate waiver. Before commencing work, however, check your state law to make certain you comply with the waiver rules.
After hearing on the motion for summary judgment the trial court indicated that it was troubled because the video did not “tell the entire story,” especially since the shooting itself was not visible on the video. Further, the trial court questioned whether it could, as a matter of law, determine that the officer was responding to an emergency, as the county asserted. The trial court denied the county’s motion as to the negligence claim, and granted the county’s motion as to the negligent retention claim.
In deciding the case, the appellate court held that the lower court erred in applying the police emergency exception as a base for invoking certiorari jurisdiction and declaring the Miami-Dade County was immune from suit as a result of the actions of the police officers in this case. This was because it held that the circumstances that were present in the case did not rise to the level of invoking the narrow emergency exception; because this was not the kind of situation implicating police-planning level decisions.
The court pointed out that in this case the motion for summary judgment was based on the county’s assertion that it was immune from suit as a matter of law because the officers were responding to an emergency. The trial court denied the summary judgment motion, stating that there were disputed issues of fact as to whether a serious emergency existed and whether the police response created or added to the danger. The appellate court concluded that the trial court properly denied the motion for summary judgment. Although the county moved for summary judgment, disputed issues of fact remained, including whether the police created or substantially contributed to the shooting through negligent acts, as alleged by the plaintiff. Therefore, the police emergency exception did not apply as a matter of law to immunize the county from suit in this case. The focus was on whether or not the police officers were negligent under all of the circumstances, which would include the fact that the police officers were responding to a burglary, and whether they perceived that they were facing a serious threat that required immediate action through the use of deadly force. The court pointed out that there was no question that, by virtue of what police officers do every day, they are often exposed to dangerous situations, especially when responding to calls involving crimes in progress. However, it was quite another thing to say that when the police respond to those situations, their employer was always immune from suit arising from negligent acts. If the police agencies were immune from tort suits in all situations where the police were called to respond to an ongoing crime, the police emergency exception could eviscerate the waiver of sovereign immunity for negligent conduct.