Florida/Georgia Personal Injury & Workers Compensation

...Therefore, there can be no inadequate-training liability on the part of the City, and it is entitled to summary judgment on that count. The complaint also charges the City with wrongful death, under Fla. Stat. § 768.28. The City argues that this claim is defeated by application of Fla. Stat. § 776.085, which states: (1) It shall be a defense to any action for damages for ....

...h force as reasonably appears necessary to carry out the duties imposed upon the officers by the public”). At the same time, police officers have immunity from liability if an injury arose during the commission of a forcible felony. See Fla. Stat. § 776.085 ....

...Allen, 541 So.2d 128, 138 (Fla.Dist.Ct.App.1989)). Officers Blanco and Lozano and The City also argue that, because Mr. Gomez violently resisted arrest — a forcible felony under Fla. Stat. § 843.01 — they are immune from liability under Fla. Stat. § 776.085 ....

...ically identified situations. The legislature has not mandated the total abandonment of the mutuality requirement for collateral estoppel in other circumstances. Stogniew v. McQueen, 656 So.2d 917, 920 (Fla.1995) (footnote omitted). Similarly, under section 776.085 of the Florida Statutes, a person may not be held liable for damages for personal injury or the wrongful death of a person who attempted, or who was attempting, to engage in a forcible felony at the time the injuries were sustained....

...The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence. § 776.085(1), Fla....

...ed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section. § 776.085(3), Fla....

...He could not point to any particular conduct that would support his claims nor could he specifically identify the batterers. *666 In their memorandum in support of summary judgment, the defendants raised a completely different argument: they asserted that Copeland's claims were barred by section 776.085, Florida Statutes (2000)....

...sustained "by a participant during the commission or attempted commission of a forcible felony." The statutory defense is established "by evidence that the participant has been convicted of such forcible felony, or attempted forcible felony. . . ." § 776.085(1). Neither the order granting summary judgment nor the final summary judgment itself stated the legal basis for the court's ruling. The defendants acknowledge that they argued that judgment was appropriate under section 776.085. Therefore, we will presume that the judgment was granted either on the ground asserted in the motion, lack of evidence, or on the basis of the statute, or both. Insofar as the judgment was founded on the section 776.085 defense, it was procedurally defective in two respects....

...theless because the statute is a total bar to his claims. They point to the fact that Copeland was convicted of two forcible felonies, armed robbery and aggravated assault, and that he was escaping the crime scene when he was allegedly battered. See § 776.085(1)....

...The defendants, as the movants for summary judgment, bore the burden of proving conclusively that Copeland could not prevail. Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). The evidence they presented in support of their motion consisted of Copeland's deposition, which did not in any way address the section 776.085 defense, and a copy of his criminal judgment. Because the section 776.085 defense is applicable only to injuries the plaintiff sustains in the "commission or attempted commission" of a forcible felony, Copeland's conviction for aggravated assault against the clerk inside the store did not support the defense....

...mpting to commit a forcible felony when the victim shot him). Moreover, Copeland filed the transcript of defendant Robert Hansen's sworn testimony at Copeland's criminal trial, which cast doubt on the theory that the robbery conviction supported the section 776.085 defense. Hansen testified that during the pursuit, Copeland took a handful of money, threw it on the ground and screamed "there's your money, leave me alone." Thus, even though Copeland was unaware that the defendants would raise the section 776.085 argument, his filings in opposition to the motion actually raised a question of fact concerning the defense....

...Summary judgment is improper if the record reflects even the slightest possibility that a material issue of fact may exist. See Fatherly v. Cal. Fed. Bank FSB, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997). Therefore, the summary judgment cannot be sustained based on the section 776.085 defense....

...is theory. *668 We reverse the summary judgment and remand for further proceedings. We note that under rule 1.190 a party may seek leave of court to amend its pleading. If on remand the defendants are permitted to amend their pleadings to assert the section 776.085 defense, Copeland may wish to review section 776.085(4), which provides penalties for a convicted and incarcerated party if the defense is proved. Reversed and remanded. SALCINES and KELLY, JJ., Concur. NOTES [1] Copeland's affidavit in opposition to the motion was served before the defendants' memorandum that asserted the section 776.085 defense....

...ausible on its face." Id. III. Analysis A. Motion to dismiss by the police officers The police officers argue that the assault and battery claims in Counts VIII-X should be dismissed based on the affirmative defense made available by Florida Statute § 776.085. Section 776.085 prevents a plaintiff from collecting damages for injuries sustained while he was committing a forcible felony: It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such...

...The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence. Fla. Stat. § 776.085(1)....

...withheld on both counts. Although Robbins was never convicted, the police officers nevertheless assert there is adequate "proof of the commission of such crime or attempted crime by a preponderance *1375 of the evidence" to trigger the protection of § 776.085....

...arrest, and he admits he "jumped up [from the toilet] and tried to run away .... out from the bathroom into the hallway in an attempt to escape." See PL's Third Am. Compl. ¶¶ 11-12. Thus, based on the undisputed facts it appears the application of § 776.085 simply turns on whether Robbins, a former NFL All-Pro center in a confused state of mind, could make a panicked exit from a bathroom stall blocked by two policemen without physically confronting them in the manner prohibited by § 843.01....

...plaintiff's disadvantage. Once the factual record has been developed, the defendants may be able to establish Robbins committed or was attempting to commit a forcible felony. But on the present record, the police officers' motion to dismiss based on § 776.085 must be denied....

...ce that would support a theory that [plaintiff] was engaged in the commission of a felony at the time he was killed” (emphasis added)). Cf. Copeland v. Albertson’s Inc., 947 So. 2d 664, 666–67 (Fla. 2d DCA 2007) (analyzing the applicability of section 776.085(1), a different but similarly worded statute which “provides a defense to a civil action for damages based on personal injury if the injury was sustained ‘by a participant during the commission or attempted commission of a forcible felony,’” and concluding “the section 776.085 defense is applicable only to injuries the plaintiff sustains in the ‘commission or attempted commission’ of a forcible felony” (emphasis added) (quoting § 776.085(1), Fla....

...ection 768.075(4) defense does not apply in this case. Cf. Copeland, 947 So. 2d at 667 (holding, in the context of a final summary judgment, that the plaintiff’s conviction of aggravated assault against the clerk inside the store did not support a section 776.085 defense so as to preclude liability for the injuries sustained by the plaintiff in the parking lot, reasoning that the “defense is applicable only to injuries the plaintiff sustains in the ‘commission or attempted commission’ of a forcible felony” (quoting § 776.085(1), Fla....

...It seems to us that a strict liability statute would impose liability any time a Tavern serves a minor with alcohol even if the Tavern were otherwise without fault of any kind. [3] The statute sounds more like an intentional tort. On the other hand, the forcible felony defense under section 776.085(1) is both mandatory and quite unqualified....

...Stat. (2007) ("a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor"). [2] § 776.085(1), Fla....

...Valdes discharged his pistol, killing Andrew Perez, one of the three burglars. Perez’s estate filed a lawsuit against Valdes to recover damages for Perez’s wrongful death. Valdes filed a motion for summary judgment; the trial court granted the motion based on its finding that section 776.085, Florida Statutes (1998), creates a defense to the wrongful death action because plaintiffs decedent died during the attempted commission of a forcible felony. Plaintiff appeals. We affirm the summary judgment. We hold that the trial court correctly concluded that section 776.085 bars plaintiffs recovery. Section 776.085(1) provides: It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony....