S.D. v. City of Cape Coral
OPINION AND ORDER granting in part and denying in part 23 Motion to Dismiss. The Motion is granted to the extent that Count II is dismissed with prejudice, and denied as to Count I. Signed by Judge John E. Steele on 11/30/2017. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
OPINION AND ORDER
This 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.
Opposition on November 7, 2017.
Plaintiff filed a Response in
For the reasons set forth below,
the Motion is granted in part and denied in part.
This is 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).
again moves to dismiss Counts I and II for failure to state a
Plaintiff responds that the Amended Complaint remedies the
deficiencies identified by the Court in its dismissal Order.
Under 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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
This requires “more
In 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.”
v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
“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
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Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal citations omitted).
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
Iqbal, 556 U.S. at 679.
A. Negligence (Count I)
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
treatment of S.D.”, and that this duty was breached.
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.”
The Court previously found that Count I does not set forth
the source of the alleged duty of care owed by the City.
#21, p. 5.)
In this regard, the Amended Complaint states: “In the
law enforcement context, Cape Coral is subjected to a duty of care
circumstances which place people within a zone of risk by creating
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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.)
The 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.
B. Vicarious Liability (Count II)
Count 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
(Id. at ¶ 25.)
“Sexual assaults and batteries committed by employees are
generally held to be outside the scope of an employee’s employment
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and, therefore, insufficient to impose vicarious liability on the
An exception exists when the employee purported to act
on behalf of the employer or when the employee was aided by the
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.”
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).
An 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
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Iglesia Cristiana La Casa Del Senor, Inc. v. L.M.,
783 So. 2d 353, 356 (Fla. 3d DCA 2001) (holding pastor’s criminal
conduct was independent, self-serving act and did not occur within
course and scope of employment)
In its previous Opinion dismissing Count II, the Court found
that plaintiff had failed to state a plausible claim against the
City for vicarious liability for the intentional torts committed
by Ortiz because they were not within the course and scope of his
furtherance of the City’s business.
In the Amended Complaint,
plaintiff alleges that the City assisted Ortiz in accomplishing
because the assault occurred during his shift, in the police car,
and while Ortiz was in uniform, utilizing his position as a Cape
Coral police officer to intimidate and coerce plaintiff.
#22, ¶¶ 29-30.)
Plaintiff further alleges that “Ortiz’s conduct
was activated, at least in part, by a purpose to serve his
employer, Cape Coral” and “Ortiz’s conduct in transporting S.D.
from Cape Coral, Florida into the custody of the Fort Myers Police
(Id. at ¶¶ 27-28.)
The Court still finds that plaintiff has failed to state a
plausible claim against the City for vicarious liability.
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furtherance of the City’s business.
Although the City concedes
that transporting detainees such as plaintiff falls within the
scope of Ortiz’s duties as a Cape Coral police officer, the sexual
assault and battery was a self-serving act that in no way furthered
the business of the City.
“Because there was not even the pretense
of lawful right in [the officer’s] performance of this act, it was
not within the scope of his employment.”
Mason, 699 So. 2d at 270
(citing McGhee v. Volusia Cnty., 679 So. 2d 729, 730-31 (Fla.
Therefore, Count II is dismissed with prejudice.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s Motion to Dismiss Amended Complaint (Doc. #23) is
GRANTED in part and DENIED in part.
The Motion is granted to the
extent that Count II is dismissed with prejudice, and denied as to
DONE and ORDERED at Fort Myers, Florida, this _30th_ day of
Counsel of Record
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