United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's Motion to
Dismiss Counts I and II of Plaintiff's Amended Complaint
(Doc. #23) filed on October 24, 2017. Plaintiff filed a
Response in Opposition on November 7, 2017. For the reasons
set forth below, the Motion is granted in part and denied in
an action alleging negligence and deprivation of
constitutional rights brought by S.D. (a minor) for sexual
abuse and battery committed by Cape Coral police officer
Casey Ortiz while he was on his shift with the Cape Coral
Police Department. Following the Court's dismissal of
Counts I (negligence) and II (respondeat superior/vicarious
liability) without prejudice (Doc. #21), plaintiff filed an
Amended Complaint (Doc. #22). Defendant again moves to
dismiss Counts I and II for failure to state a claim.
Plaintiff responds that the Amended Complaint remedies the
deficiencies identified by the Court in its dismissal Order.
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Negligence (Count I)
alleges a claim for direct liability against the City of Cape
Coral (“City”). Unlike a suit based on the
doctrine of respondeat superior, a direct liability action is
grounded upon the negligence of the employer itself. Count I
alleges that the City had a duty of care to “provide
proper supervision and treatment of S.D.”, and that
this duty was breached. (Doc. #22, ¶ 16.) Plaintiff
further alleges: “At all material times, Cape Coral
knew, or should have known, that their employee, Ortiz, was a
threat to others, particularly, to persons like S.D.”
(Id. at ¶ 20.) The Court previously found that
Count I does not set forth the source of the alleged duty of
care owed by the City. (Doc. #21, p. 5.) In this regard, the
Amended Complaint states: “In the law enforcement
context, Cape Coral is subjected to a duty of care when law
enforcement officers become directly involved in
circumstances which place people within a zone of risk by
creating or permitting dangers to exist, by taking persons
into police custody, by detaining them or by otherwise
subjecting them to danger, ” citing Milanese v.
City of Boca Raton, 84 So.3d 339 (Fla. 4th DCA 2012).
(Id. at ¶ 17.)
Court is satisfied that plaintiff has sufficiently pled the
source of the City's duty by stating that the City
created the danger which caused harm to S.D., placing her in
a zone of risk, when the City knew or should have known that
Officer Ortiz was a threat to others. See Williams v.
Feather Sound, Inc., 386 So.2d 1238, 1239-40 (Fla. 2d
DCA 1980) (Florida recognizes that, independent of the
doctrine of respondeat superior, an employer is liable for an
employee's willful tort committed against a third person
if he knew or should have known that the employee was a
threat to others). Dismissal of Count I is denied.
Vicarious Liability (Count II)
II alleges that the staff, employees, agents, and servants of
the City were acting within the course and scope of their
employment (Doc. #22, ¶ 24), thus making the City
vicariously liable for any and all of their negligent acts or
omissions and any intentional torts in: (a) failing to
prevent the abuse of S.D., and (b) failing to enforce or
follow the City's own policies and procedures.
(Id. at ¶ 25.)
assaults and batteries committed by employees are generally
held to be outside the scope of an employee's employment
and, therefore, insufficient to impose vicarious liability on
the employer. An exception exists when the employee purported
to act on behalf of the employer or when the employee was
aided by the agency relationship.” Goss v. Human
Services Associates, Inc., 79 So.3d 127, 132 (Fla. 5th
DCA 2012) (citing Sussman v. Fla. E. Coast Props.,
Inc., 557 So.2d 74, 75-76 (Fla. 3d DCA 1990));
Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d
1076, 1078 (Fla. 5th DCA 1985). “Unless it can be
established that the abuse occurred in furtherance of the
employer's business, this type of conduct is not within
the scope of employment.” Agriturf Mgmt., Inc. v.
Roe, 656 So.2d 954 (Fla. 2d DCA 1995) (finding abuse
occurring on Agriturf's property during time perpetrator
closing business not within scope of employment because
sexual abuse not in furtherance of employer's business
objectives); see Mason v. Fla. Sheriffs' Self-Ins.
Fund, 699 So.2d 268 (Fla. 5th DCA 1997) (holding sexual
assault by officer not within scope of employment, even
though officer on duty, in uniform, and serving warrant on
woman he raped); Special Olympics Fla., Inc. v.
Showalter, 6 So.3d 662, 665-66 (Fla. 5th DCA 2009).
employee's conduct is within the scope of his employment,
where: (1) the conduct is of the kind he was employed to
perform, (2) the conduct occurs substantially within the time
and space limits authorized or required by the work to be
performed, and (3) the conduct is activated at least in part
by a purpose to serve the master. Iglesia Cristiana La
Casa Del Senor, Inc. v. L.M.,783 So.2d 353, 356 (Fla.
3d DCA 2001) (holding ...