Opinion
Nos. 81-228, 81-951.
July 13, 1982. Rehearing Denied September 15, 1982.
Appeal from the Circuit Court, Dade County, Donald E. Stone, J.
Greenbaum, Wolff Ernst and Saul J. Morgan, Miami, for appellant.
Richard Dunn, Miami, for appellees.
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
The appellant takes these consolidated appeals from a summary judgment and order of dismissal which terminated his suit for damages for injuries sustained in a hit-and-run accident.
Minard filed suit against S.D. Natale, a State Trooper, alleging that Natale was liable for injuries which Minard suffered in a hit-and-run accident because Natale failed to stop the driver of the hit-and-run vehicle.
At night, Natale, an off-duty Highway Patrolman, in civilian clothing, in his personal car, noticed a car whose taillights were not functioning. Without intentionally doing so, Natale was going in the same direction as the car. The driver of the car never did anything that would have caused him to stop the car had he been on duty. Further, there was evidence that off-duty troopers are instructed by their department not to arrest except for felony offenses.
Natale never saw the car strike Minard; he only saw a flash of white above the car which he realized were notebook papers. Associating the paper with a child, Natale stopped and walked up and down the shoulder until he found the injured Minard. Although Natale searched for the hit-and-run vehicle, it was never located. The trial court granted summary judgment in favor of Natale. The complaint was then dismissed as to the two departments of the state, on the ground that these agencies would be liable only if Natale were liable. Minard takes consolidated appeals from the summary judgment and the order of dismissal.
Natale had no duty to arrest the driver of the car. Section 790.052 and cases cited by the appellant are inapplicable because they are all founded upon a prior determination that a duty existed. Natale was off-duty, he had been ordered not to make misdemeanor arrests, and he was not intentionally pursuing the vehicle. He was under no duty to stop the car; further, Section 790.052 does not impose a duty upon off-duty officers but instead gives the officer the option. Nor was Natale obligated to follow the car; in fact, his responsibility was to render aid to the injured Minard, which he did.
The summary judgment orders under review are affirmed.
Affirmed.