Goines v. Lee Memorial Health System et al

Filing 150

ORDER denying 97 Motion for summary judgment. Signed by Judge John E. Steele on 2/8/2019. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No:

2:17-cv-656-FtM-29CM

LEE MEMORIAL HEALTH SYSTEM,
d.b.a. Cape Coral Hospital
and JEOVANNI HECHAVARRIA,
Defendants.

OPINION AND ORDER
This matter comes before the Court on defendant Lee Memorial
Health Systems’ Motion for Summary Judgment (Doc. #97) filed on
November 5, 2018.

Plaintiff Donia Goines filed a Response (Doc.

#119) on December 10, 2018.

For the reasons that follow, the

motion is denied.
Plaintiff alleges she was sexually assaulted by defendant
Jeovanni Hechavarria at a hospital operated by Lee Memorial.
Plaintiff filed an Amended Complaint on April 25, 2018, asserting
a section 1983 claim and several common law negligence claims
against Lee Memorial, as well as a common law assault and battery
claim against Hechavarria.

(Doc. #31.)

Lee Memorial now moves

for summary judgment on the five counts in which it is a defendant.
(Doc. #97.)

I.
A. Factual Background 1
Lee Memorial, a public health care system codified under
Florida law, hired Hechavarria as a night nurse for the Cape Coral
Hospital in the fall of 2014.
761-62.)

(Doc. #31, p. 2; Doc. #120-22, pp.

Prior to doing so, Lee Memorial conducted a background

check on Hechavarria, searching for criminal or sex offender
records. (Doc. #98-1, p. 8.)

None of these searches revealed any

arrests, charges, or convictions. 2

(Id. pp. 8-9.)

1) First Sexual Assault Allegation against Hechavarria
On the night of March 17, 2015, non-party Brianna Hammer was
a patient at the Cape Coral Hospital after being admitted for
suspected food poisoning and flu illness.

(Doc. #122-1, p. 3.)

Hechavarria was the assigned night nurse and, according to Hammer,

1

The background facts are either undisputed or read in the
light most favorable to plaintiff as the nonmoving party. However,
these facts, accepted at the summary judgment stage of the
proceedings, may not be the “actual” facts of the case.
See
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925 n.3
(11th Cir. 2000).
2

Plaintiff has produced evidence that prior to being hired
by Lee Memorial, Hechavarria had been subject to multiple temporary
restraining orders due to allegations of domestic violence made by
Hechavarria’s former wife. (Doc. #120-14, p. 538; Doc. #120-15,
p. 545; Doc. #120-16, p. 551; Doc. #120-17, p. 561.)
Per Lee
Memorial, this information was unknown at the time Hechavarria was
hired and would not have been considered anyways because there was
never a legal determination that Hechavarria committed the alleged
actions. (Doc. #120-22, pp. 769-72.)

2

engaged in sexually inappropriate behavior on multiple occasions
throughout the night.

(Id. p. 3.)

For example, Hammer accused

Hechavarria of touching her breasts in an inappropriate manner and
touching her genitals under her gown.

(Id.)

Hechavarria also

allegedly pulled down Hammer’s underwear and looked at her vagina
and anus.

(Id. p. 4.)

Hammer stated that at one point during the

night, she awoke to find Hechavarria standing over her with his
fingers inside her vagina.

(Id.)

As best Hammer can recall,

Hechavarria was touching his penis at the same time.

(Id.)

Hammer reported the alleged sexual assault to Lee Memorial
personnel, as well as an officer from the Cape Coral Police
Department who responded to the hospital.

(Id. p. 5.)

Hammer

informed a hospital supervisor and hospital security officer that
Hechavarria’s gloves and gown, which he had been wearing during
the alleged assault, were in the room’s trash can.
5.)

Nonetheless, the evidence was not collected. 3

3

(Id. pp. 4(Id. p. 5.)

Lee Memorial has a “Sexual Abuse Prevention and Reporting
Risk Management” policy, the stated purpose of which is “[t]o
protect patients from sexual abuse and provide for reporting of
sexual misconduct in accordance with Florida law.” (Doc. #120-6,
p. 60; Doc. #120-7, p. 63.)
In outlining the procedure for a
report of sexual misconduct, the policy states, “Care shall be
taken to preserve any physical evidence, including evidence of
semen, blood, or other materials.” (Doc. #120-6, p. 61; Doc. #1207, p. 64.) According to an official, Lee Memorial’s practice is
to secure evidence until law enforcement arrives, “at which point
the decisions regarding any forensic evidence is for law
enforcement to make.” (Doc. #98-9, p. 189.) The official also
stated that the gloves and gown were available to the police but
the responding officer “chose not to secure those items for

3

Hammer’s complaint was investigated by Lee Memorial’s risk
manager. (Doc. #98-9, pp. 187-88.)

The manager spoke with Hammer

and believed she was being untruthful during the interview.
p.

188.)

allegation.”
manager

The

manager

concluded

(Id. at 189.)

relied

in

part

on

Hammer

had

“made

(Id.

up

the

In coming to this determination, the
findings

by

the

responding

police

officer, who allegedly found Hammer’s account inconsistent and
determined she was making up the allegation.

(Id.)

The manager

was able to complete the investigation “relatively quickly, due in
part to the untruthfulness” of Hammer. 4

(Id.)

On March 18, 2015, the day after Hammer accused Hechavarria
of sexually assaulting her, the manager reported the allegation to
the Florida Department of Health via letter.

(Doc. #120-29, p.

testing.” (Id.) However, plaintiff has produced testimony from
the hospital security officer suggesting the police officer may
not have been informed of the existence of the potential physical
evidence. (Doc. #120-12, pp. 304-05.)
4

Lee Memorial’s “Sexual Abuse Prevention and Reporting Risk
Management” policy provides that if a risk manager becomes aware
that the person reporting sexual misconduct “has done so falsely
and with malice or with the intent to discredit or harm,” the
information should be reported to Lee Memorial’s chief legal
officer “who shall, to the fullest extent possible, seek
prosecution of the offender as provided by law.” (Doc. #120-6, p.
60; Doc. #120-7, p. 65.) The risk manager has acknowledged she
did not inform the chief legal officer that she believed Hammer
made a false accusation against Hechavarria.
(Doc. #98-24, p.
792.)
Hammer has since filed suit against Hechavarria and Lee
Memorial for claims similar to those raised by plaintiff, and the
case is currently pending before this Court. See Hammer v. Lee
Mem’l Health Sys., 2018 WL 5078909 (M.D. Fla. Oct. 18, 2018).

4

1889.)

The letter notes that Lee Memorial had conducted an

investigation and was unable to validate Hammer’s claims.

(Id.)

The record indicates Lee Memorial completed its investigation
before law enforcement completed theirs.

Hammer spoke with a Cape

Coral Police Department detective approximately ten days after the
alleged sexual assault.

(Doc. #120-30, p. 1905.)

That detective

informed Lee Memorial a couple weeks after the accusation that the
investigation was ongoing. 5

(Id. pp. 1911-12, 1963-67.)

On the day of the alleged assault, Lee Memorial officials
determined Hechavarria should be placed on paid leave. (Doc. #12027, p. 1684.)

The decision to place Hechavarria on leave was based

in part on threatening posts Hammer’s boyfriend allegedly made on
Facebook.

(Id.)

While Hechavarria was to be on leave until the

police investigation was completed, (id.), Hechavarria returned to
work soon after, (Doc. #120-18, p. 677.)

As Lee Memorial had

determined the allegation was unsubstantiated, no discipline was
imposed.

(Doc. #98-8, p. 185.)

Additionally, no changes were

made to Hechavarria’s access to female patients and he was not

5

Lee Memorial disputes this, stating it did not learn
Hammer’s accusation was assigned to a detective until during
discovery of the instant case. (Doc. #97, p. 7.) Per the record,
the detective subsequently sent the case to the Twentieth Judicial
Circuit’s State Attorney Office for review, which determined there
was insufficient evidence to charge Hechavarria for sexual
battery. (Doc. #120-30, p. 1956; Doc. #120-32, p. 2044.)

5

required to undergo any additional supervision or training. 6 (Doc.
#120-37, p. 2373.)

Finally, Lee Memorial did not conduct any

further investigation into Hechavarria’s background as a result of
the allegation.

(Doc. #120-18, p. 680; Doc. #120-39, pp. 2424-

25, 2452.)
2) Hechavarria’s Arrest for Unrelated Battery
On July 8, 2016, Hechavarria was arrested by the Charlotte
County Sheriff’s Office for battery.

(Doc. #120-46, pp. 2849-50.)

The alleged victim of the battery was Hechavarria’s brother. (Id.)
Per Hechavarria, he informed his Lee Memorial supervisor of the
arrest the next day he went to work.

(Doc. #120-18, pp. 617-18.)

Hechavarria was not suspended in response, (Id. p. 618), and it
does not seem Lee Memorial conducted any investigation into the
matter. 7

6

Lee Memorial’s “Violence in the Workplace” policy provides
that Lee Memorial “investigates acts and/or threats of violence,
direct or indirect, toward employees and non-employees both on and
off of [Lee Memorial] premises.” (Doc. #120-8, p. 67.) The policy
also provides that basic training and education on “disruptive
behavior” is conducted annually and “[a]dditional in-services are
conducted by [Lee Memorial] Security following an investigation.”
(Id.)
7

Lee Memorial’s “Workplace Personal Safety, Security and
Violence Prevention” policy states, “If a conviction and/or arrest
of a violent nature is disclosed or reported to [Lee Memorial] it
will be investigated by the Threat Assessment Team. Based on the
findings and the employee’s position it may result in corrective
action up to and including termination.” (Doc. #120-47, p. 2853.)
Lee Memorial’s corporate representative has acknowledged the
policy requires an investigation when an employee is arrested for
a battery.
(Doc. #120-41, pp. 2744-45.)
However, a Threat

6

3) Second Sexual Assault Allegation against Hechavarria
On July 15, 2016, plaintiff was admitted to the Cape Coral
Hospital because her gallbladder was bursting.
3011.)

The

assigned

following

nurse

and,

evening,

according

(Doc. #120-49, p.

Hechavarria
to

was

plaintiff,

plaintiff’s

inappropriately

touched her on multiple occasions during the night. (Id. pp. 301920, 3024-36.)

Per plaintiff, on Hechavarria’s fourth visit to

the room, plaintiff threatened to scream and Hechavarria allegedly
told her he had her address and if she told anyone, he would come
get her.

(Id. p. 3036.)

According to plaintiff, Hechavarria

placed his gloved fingers inside her vagina and then proceeded to
rape

her

despite

her

pleas

to

stop. 8

(Id.

pp.

3036-44.)

Hechavarria allegedly told plaintiff that he would not get in
trouble because nobody would believe her.

(Id. p. 3040.)

The following day, plaintiff informed a different nurse about
the alleged sexual assault.

(Id. pp. 3056-57.)

A hospital

security officer spoke with plaintiff and the police were called
to the hospital.

(Id. pp. 3058-59.)

Plaintiff also spoke to the

Assessment Team was never assembled after Hechavarria’s arrest.
(Doc. #120-25, p. 1294.)
8

Plaintiff testified in a deposition that Hechavarria wiped
himself off with a towel after the rape. (Doc. #120-49, p. 3037.)
The record contains a Florida Department of Law Enforcement
laboratory report purportedly matching Hechavarria’s DNA to semen
found on a towel. (Doc. #120-51, pp. 3168-69; Doc. #120-52, pp.
3171-72.)

7

same

Lee

Memorial

allegation.

risk

manager

who

investigated

(Id. p. 3060; Doc. #98-9, p. 190.)

the

Hammer

Hechavarria was

initially placed on leave while Lee Memorial investigated the
allegation

but

was

subsequently

approximately four months later. 9
25, p. 1257.)

terminated

from

employment

(Doc. #98-9, p. 190; Doc. #120-

Hechavarria has since been arrested and criminally

charged with three counts of sexual battery, two of which relate
to Hammer and plaintiff’s allegations. 10

(Doc. #120-33, pp. 2045-

47.)

9

The record contains disputed explanations for the
termination of Hechavarria’s employment.
One Lee Memorial
official testified that Hechavarria was let go because he could
not return to work until the investigation was resolved and could
not be kept on leave indefinitely.
(Doc. #98-19, pp. 413-14.)
However,
another
official
testified
that
Hechavarria
was
terminated due to plaintiff’s allegation, which constituted “gross
misconduct.” (Doc. #120-41, p. 2659.) Lee Memorial’s termination
report for Hechavarria also states he was terminated for gross
misconduct, and describes the circumstances leading to termination
as “[p]atient allegation of sexual assault rape which is being
investigated by [Cape Coral Police Department].” (Doc. #120-50,
p. 3167.) Interestingly, while Lee Memorial’s “Corrective Action
Policy” provides that an employee may be terminated when he commits
an offense of gross misconduct, it does not provide for termination
when there is merely an allegation of wrongdoing. (Doc. #120-45,
p. 2845.)
10

Per the Twentieth Judicial Circuit’s docket, Hechavarria
was originally charged with only one count of sexual battery, as
it related to plaintiff’s allegation.
Approximately ten months
later, the information was amended to include two additional sexual
battery charges, one of which corresponds with Hammer’s
allegation. See United States v. Jones, 29 F.3d 1549, 1553 (11th
Cir. 1994) (recognizing that a court may take judicial notice of
a document filed in another court to establish the fact of such
litigation and related filings).

8

B. Procedural Background
On

April

25,

2018,

plaintiff

filed

a

six

Complaint against Hechavarria and Lee Memorial.

count

Amended

(Doc. #31.)

Counts One through Five of the Amended Complaint are against Lee
Memorial and allege the following: (1) violation of 42 U.S.C. §
1983; (2) negligent retention; (3) negligent supervision; (4)
negligence; and (5) negligent hiring.

(Id. pp. 5-13.)

is against Hechavarria for assault and battery.

Count Six

(Id. pp. 13-14.)

On November 5, 2018, Lee Memorial filed its Motion for Summary
Judgment, arguing it is entitled to summary judgment as to the
first five counts in the Amended Complaint.

(Doc. #97.)

II.
Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if the

record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Hickson Corp. v. N. Crossarm Co.,

Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citation omitted).

A

fact is “material” if it may affect the outcome of the suit under
governing law.
248 (1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

“A court must decide ‘whether the evidence presents

a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter

9

of law.’”

Hickson, 357 F.3d at 1260 (quoting Anderson, 477 U.S.

at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
nonmoving party.
2010).

However,

Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.
“[i]f

reasonable

minds

might

differ

on

the

inferences arising from undisputed facts, then the court should
deny summary judgment.”

St. Charles Foods, Inc. v. America’s

Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting
Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 129697 (11th Cir. 1983)).

“If a reasonable fact finder evaluating the

evidence could draw more than one inference from the facts, and if
that inference introduces a genuine issue of material fact, then
the court should not grant summary judgment.”

Allen v. Bd. of

Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).
III.
A. Count One - Section 1983
In the first count of the Amended Complaint, plaintiff alleges
Lee Memorial violated 42 U.S.C. § 1983 by depriving her of “the
constitutional right to personal security and bodily integrity,
including the right to be free from sexual abuse and sexual
assault.”

(Doc. #31, p. 5.)

In its motion, Lee Memorial argues

it is entitled to summary judgment on this claim because (1) it is
not considered a “person” under section 1983, and therefore cannot

10

be sued, and (2) even if it is considered a “person,” plaintiff
cannot establish Lee Memorial had a policy or custom that caused
a deprivation of plaintiff’s constitutional rights.
pp. 12-18.)

(Doc. #97,

Each of these arguments will be addressed in turn.

1) Whether Lee Memorial is a “person” under section 1983
Section 1983 imposes liability on any person who, under color
of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.”
1983.

42 U.S.C. §

In order to succeed on a section 1983 claim, “a plaintiff

must show that he or she was deprived of a federal right by a
person acting under color of state law.”

Taylor v. Dep’t of Pub.

Safety, 142 Fed. App’x 373, 374 (11th Cir. 2005) (quoting Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001)).

While

section 1983 provides a federal forum to remedy many deprivations
of civil liberties, “it does not provide a federal forum for
litigants

who

seek

a

remedy

against

deprivations of civil liberties.”

a

State

for

alleged

Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 66 (1989).
In its motion, Lee Memorial claims it is an agency of the
state.

(Doc. #97, p. 13.)

Since a state agency is not considered

a “person” for purposes of section 1983, Lee Memorial argues it
cannot be sued and is thus entitled to summary judgment.
The Court disagrees.

(Id.)

Lee Memorial is a healthcare authority

created by the Florida Legislature as a special purpose unit of

11

local government, F.T.C. v. Hosp. Bd. of Dirs. of Lee Cty., 38
F.3d 1184, 1188 (11th Cir. 1994) (citing Ch. 63-1552 § 1, Laws of
Fla.), and Lee Memorial represents itself to the public as such,
see http://www.leehealth.org/about/LegalStructure.asp (“Formerly
known as Hospital Board of Directors of Lee County, Lee Memorial
Health System is a special purpose unit of local government.”).
Local government entities are considered a “person” for purposes
of section 1983.

See Monell v. Dep’t of Social Servs. of N.Y.,

436 U.S. 658, 690 (1978).

Therefore, the Court finds that Lee

Memorial has failed to demonstrate it is not a “person” for
purposes of section 1983.
2) Whether plaintiff can establish that the constitutional
deprivation resulted from a custom, policy, or practice of
Lee Memorial
Plaintiff suggests that for purposes of an Eleventh Amendment
immunity

analysis,

municipality.

Lee

Memorial

should

be

treated

as

a

(Doc. #119, p. 26); see Magula v. Broward Gen. Med.

Ctr., 742 F. Supp. 645, 649 (S.D. Fla. 1990) (concluding “that the
hospital district is more like a municipality than like an arm of
the state”).

Lee Memorial argues that even if it is treated as a

municipality, it would still be entitled to summary judgment
because plaintiff cannot show the alleged constitutional violation

12

resulted from a custom, policy, or practice of Lee Memorial. 11
(Doc. #97, p. 13.)
When a local governmental entity is the subject of a section
1983 suit, the plaintiff bears the burden of showing that the
constitutional derivation “resulted from a custom, policy, or
practice of the municipality.” Wideman v. Shallowford Cmty. Hosp.,
Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) (citations omitted);
see also Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th
Cir. 1997) (“A municipality may be held liable under § 1983 if the
plaintiff shows that a ‘custom’ or ‘policy’ of the municipality
was the ‘moving force’ behind the constitutional deprivation.”
(citing Monell, 436 U.S. at 690-94)).
is

officially

adopted

by

the

A policy is a decision that

municipality,

or

created

by

an

official of such rank that he or she could be said to be acting on
behalf of the municipality.

Sewell, 117 F.3d at 489 (citing Brown

v. City of Fort Lauderdale, 923 F.2d 1474, 1479-80 (11th Cir.
1991)).

A custom is a practice that is so settled and permanent

that it takes on the force of law.

Id. (citing Monell, 436 U.S.

at 690-91).

11

For purposes of the Motion for Summary Judgment only, Lee
Memorial assumes plaintiff can establish that “personal security
and bodily integrity” are constitutional rights, and that
Hechavarria committed the sexual assault. (Doc. #97, p. 13 n.8.)

13

Because a municipality will rarely have an express written or
oral policy of inadequately training or supervising its employees,
the Supreme Court has also provided that a plaintiff may prove a
policy

by

evidenced

showing
a

inhabitants.

that

“deliberate

the

municipality’s

indifference”

to

failure

the

to

rights

train
of

its

Gold v. City of Miami, 151 F.3d 1346, 1350 (11th

Cir. 1998) (citing City of Canton v. Harris, 489 U.S. 378, 388-89
(1989)).

To establish “deliberate indifference,” a plaintiff must

present some evidence that the municipality knew of a need to train
and/or supervise in a particular area and the municipality made a
deliberate choice not to take any action. Id. (citations omitted).
Without notice of a need to train or supervise in a particular
area, a municipality is not liable as a matter of law for any
failure to train and supervise.

Id. at 1351.

In the Amended Complaint, plaintiff alleges Lee Memorial had
policies

of

inadequate

supervision

regarding

Hechavarria

and

inadequate investigation regarding complaints of sexual abuse and
assault alleged against him, and that such policies constituted
deliberate

indifference

encountered. 12

to

the

rights

(Doc. #31, pp. 5-7.)

12

of

persons

Hechavarria

Lee Memorial argues in its

There is an inconsistency between plaintiff’s Amended
Complaint and its Response to the Motion for Summary Judgment. In
the Amended Complaint, plaintiff alleges Lee Memorial had a policy
of failing to supervise Hechavarria and investigate complaints
made against him.
(Doc. #31, p. 5.) However, in the Response,
plaintiff seems to allege a broader policy, noting Lee Memorial

14

motion that because plaintiff cannot establish Lee Memorial had a
policy or custom of failing to supervise Hechavarria or investigate
sexual

assault

complaints

against

him,

plaintiff

demonstrate municipal liability under section 1983.
pp. 13-18.)

cannot

(Doc. #97,

The crux of the motion’s argument is that plaintiff

cannot demonstrate Lee Memorial was put on notice of a need for
improved supervision or investigation regarding sexual assault
allegations.
In

(Id. pp. 14-18.)

the

context

“[e]stablishing
difficult.”

notice

of
of

deliberate
a

need

to

indifference
train

or

claims,

supervise

is

Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of

Miami, Fla., 637 F.3d 1178, 1189 (11th Cir. 2011).

A plaintiff

may demonstrate notice “by showing a ‘widespread pattern of prior
abuse’ or even a single earlier constitutional violation.”
(quoting Gold, 151 F.3d at 1351).
relying

on

investigative

Id.

Here, plaintiff attempts both,

records

from

prior

sexual

assault

allegations against other Lee Memorial employees, as well as

knew of a need to supervise and investigate “its accused employees,
especially in the area of inappropriate sexual conduct towards
patients.” (Doc. #119, p. 29.) To the extent plaintiff is raising
a new claim not made in the Amended Complaint, “[a] plaintiff may
not amend her complaint through argument in a brief opposing
summary judgment.”
Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004); see also Bayou Lawn & Landscape Servs.
v. Johnson, 173 F. Supp. 3d 1271, 1281 (N.D. Fla. 2016) (declining
to consider plaintiff’s argument in a responsive brief on summary
judgment because it was not the same as the argument in the
complaint).

15

Hammer’s allegation against Hechavarria.

(Doc. #119, pp. 27-33.)

The Court finds it is unnecessary to determine whether the prior
allegations constitute a “widespread pattern” because a genuine
issue of material fact exists as to whether Lee Memorial was on
notice

based

solely

on

the

previous

allegation

against

Hechavarria. 13
Based on Hammer’s allegation, which is taken as true for
purposes

of

summary

judgment,

Lee

Memorial

had

notice

of

Hechavarria’s prior sexual assault against a patient. The evidence
indicates Lee Memorial officials determined Hammer was lying and
the investigation was concluded in one day, before the case was
assigned to a Cape Coral Police Department detective. The evidence
also suggests Hechavarria was permitted to return to work soon
after the allegation with no increased supervision or additional
training, and with unrestricted access to female patients. Viewing
the

evidence

and

inferences

in

13

the

light

most

favorable

to

Lee Memorial argues that plaintiff cannot rely on the
previous accusation against Hechavarria to demonstrate deliberate
indifference because “the test is not whether it happened one time,
but rather whether there was widespread abuse of patient’s [sic]
constitutional rights that required [Lee Memorial] to take
action.” (Doc. #97, p. 16.) While it is true that “proof of a
single, isolated incident of unconstitutional activity generally
is not sufficient to impose municipal liability,” Wideman, 826
F.2d at 1032 (citations omitted), the Eleventh Circuit has
specifically held a plaintiff may demonstrate notice of a need for
training or supervision by showing “even a single earlier
constitutional violation,” Am. Fed’n, 637 F.3d at 1189.

16

plaintiff,

the

Court

finds

a

jury

may

conclude

the

Hammer

allegation alone was sufficient to put Lee Memorial on notice of
a need for improved supervision and investigation.

See Franklin

v. Tatum, 627 Fed. App’x 761, 76566 (11th Cir. 2015) (finding a
reasonable jury could conclude jail administrator was on notice of
transportation officer’s criminal behavior after allegation of
sexual assault, and was deliberately indifferent to a serious risk
of constitutional injuries when insufficient action was taken in
response). 14
Finally, Lee Memorial makes a brief argument that plaintiff
cannot demonstrate any deficient policies were the “moving force”
behind the constitutional violations. (Doc. #97, p. 17.) However,
“[t]he presence of the requisite causation in a case brought under
42 U.S.C. § 1983 is normally a question of fact for the jury.”
Jackson v. Stevens, 694 F. Supp. 2d 1334, 1336 n.1 (M.D. Ga. 2010);
see also Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004)
(“While we are aware that a Section 1983 plaintiff must demonstrate
that the defendant’s actions were the proximate cause of the
violation of his federally protected right, the presence of the
requisite causation is normally a question of fact for the jury.”

14

While Franklin involved supervisory liability under section
1983 rather than municipality liability, the Court finds it
instructive.

17

(citation omitted)).

Therefore, the Court finds summary judgment

is inappropriate.
B. Counts Two and Three - Negligent Retention and Negligent
Supervision
In the second and third counts of the Amended Complaint,
plaintiff alleges Lee Memorial was negligent in retaining and
supervising Hechavarria after the Hammer incident.
7-10.)

“The

terms

‘negligent

retention’

(Doc. #31, pp.
and

‘negligent

supervision’ have the same meaning and are used interchangeably by
Florida courts.”

Alcantara v. Denny’s Inc., 2006 WL 8439596, *5

n.8 (M.D. Fla. Jan. 19, 2006) (citing Malicki v. Doe, 814 So. 2d
347, 362 n.15 (Fla. 2002)).

Negligent retention and negligent

supervision occur when, during the course of employment, the
employer becomes aware or should have become aware of problems
with an employee that indicated his unfitness, and the employer
fails to take further action such as investigating, discharge, or
reassignment.

Degitz v. S. Mgmt. Servs., Inc., 996 F. Supp. 1451,

1461 (M.D. Fla. 1998) (citations omitted); Alcantara, 2006 WL
8439596, *5 (citation omitted).

In order to be liable, the

employer must first owe a duty to the plaintiff, the breach of
which must be the proximate cause of the plaintiff’s harm. Degitz,
996 F. Supp. at 1461 (citation omitted); see also Gillis v. Sports
Auth. Inc., 123 F. Supp. 2d 611, 617 (S.D. Fla. 2000) (“Only when
an employer has somehow been responsible for bringing a third

18

person into contact with an employee, whom the employer knows or
should have known is predisposed to committing a wrong under
circumstances that create an opportunity or enticement to commit
such a wrong, should the law impose liability on the employer.”
(citation omitted)).

The ultimate question of liability to be

decided is “whether it was reasonable for an employer to permit an
employee to perform his job in light of information about the
employee which [the] employer should have known.”

Gillis, 123 F.

Supp. 2d at 617 (quoting Sullivan v. Lake Region Yacht & Country
Club, 1997 WL 689799 (M.D. Fla. 1997)).
In the Amended Complaint, plaintiff alleges Lee Memorial (1)
had a duty to terminate or discipline unfit nurses, and (2)
breached that duty by failing to discharge, terminate or reassign
Hechavarria, and by allowing him to continue to have unsupervised
access to female patients, after being put on notice of his history
of sexual abuse and assault.

(Doc. #31, pp. 8, 9-10.)

Plaintiff

asserts that she was physically and sexually abused and assaulted
as a proximate result of Lee Memorial’s actions.

(Id. pp. 8, 10.)

In its motion, Lee Memorial argues summary judgment should be
granted because (1) it is entitled to sovereign immunity, and (2)
even

if

sovereign

immunity

does

not

apply,

establish the essential elements of the claims.
31-37.)

plaintiff

(Doc. #97, pp.

The Court will address these arguments in turn.

19

cannot

1) Whether Lee Memorial is entitled to sovereign immunity
Lee Memorial’s first argument is that it is entitled to
sovereign immunity with regards to plaintiff’s negligent retention
claim.

(Doc. #97, p. 32.)

The State of Florida, including its

subdivisions and municipalities, are generally immune from tort
liability. 15

Ireland v. Prummell, 2018 WL 3956204, *10 (M.D. Fla.

Aug. 17, 2018) (citing Fla. Const., Art. X, § 13).

However,

Florida has waived its tort immunity under circumstances in which
the state agency or subdivision, if a private person, would be
liable to the claimant, in accordance with the general laws of the
state.

§ 768.28(1), Fla. Stat.

Additionally, Lee Memorial has

agreed that it “may sue and be sued.”

Ch. 2000-439 § 10(2), Laws

of

claim

Fla.

Nonetheless,

even

if

the

contains

sufficient

allegations of tort liability under which a private person would
be liable, “the waiver of sovereign immunity would still not apply
if the challenged acts of the state agent were ‘discretionary’
governmental acts rather than merely ‘operational’ ones.”

Lewis

v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001).
Lee Memorial argues plaintiff’s negligent retention claim is
based upon an assertion that Lee Memorial’s investigation into the
Hammer incident was insufficient.

15

(Doc. #97, pp. 31-32.)

Lee

For purposes of this issue, the Court will assume Lee
Memorial qualifies as a subdivision of the State of Florida and
would therefore qualify for sovereign immunity.

20

Memorial asserts that the scope and manner in which it conducts
investigations is a discretionary function, and therefore it is
entitled to sovereign immunity.

(Id. at 32.)

However, as this

Court has previously noted, “There is no sovereign immunity barrier
to stating a claim against a government entity for negligent
retention or supervision.”

Sada v. City of Altamonte Springs,

2009 WL 3241984, *4 (M.D. Fla. Oct. 5, 2009) (citing Slonin v.
City of West Palm Beach, 896 So. 2d 882 (Fla. 4th DCA 2005); see
also Ireland, 2018 WL 3956204, *10 (“[M]ore than one Florida court
has explicitly held ‘. . . there is no sovereign immunity barrier
to making a claim against a governmental agency for negligent
retention or supervision.’” (quoting Dickinson v. Gonzalez, 839
So. 2d 709, 713 (Fla. 3d DCA 2003)).

Therefore, the Court rejects

Lee Memorial’s argument that it is entitled to sovereign immunity
on plaintiff’s negligent retention claim.
2) Whether plaintiff can establish the essential elements of
the claims
As

noted

previously,

liability

attaches

for

a

negligent

retention or negligent supervision claim “when an employer (1)
knows or should know about the offending employee’s unfitness and
(2) fails to take appropriate action.”

Martinez v. Pavex Corp.,

422 F. Supp. 2d 1284, 1298 (M.D. Fla. 2006).

Lee Memorial argues

it is entitled to summary judgment on both counts because plaintiff

21

cannot establish either of the two prongs above.

(Doc. #97, pp.

32-34, 37-38.)
Lee Memorial first argues that there was nothing to indicate
that Hechavarria was unfit for continued employment.
36-37.)

Viewing

the

evidence

in

plaintiff, the Court disagrees.

a

light

most

(Id. pp. 33,
favorable

to

Approximately sixteen months

before plaintiff checked into the Cape Coral Hospital, Hammer
informed Lee Memorial that Hechavarria had sexually assaulted her
while working on his night shift.

Additionally, less than nine

days before Hechavarria allegedly raped plaintiff, he informed his
supervisor he had been arrested for battery. The Court finds these
incidents

were

sufficient

to

put

Lee

Memorial

on

notice

Hechavarria’s propensity for sexual assault and/or violence.

of
Cf.

Martinez, 422 F. Supp. 2d at 1299 (granting summary judgment on
negligent supervision and retention claim because plaintiff failed
to

submit

evidence

demonstrating

employer

had

knowledge

of

employee’s propensity to assault or batter others); see also
Degitz, 996 F. Supp. at 1461 (“An employer is liable for the
willful tort of his employee, committed against a third party, if
he knew or should have known that the employee was a threat to
others.”).
Lee Memorial next argues that plaintiff cannot prove it failed
to take appropriate action and, therefore, cannot prove the second
prong of a negligent retention or negligent supervision claim.

22

(Doc. #97, pp. 33, 37.)

Once again, viewing the evidence in a

light most favorable to plaintiff, the Court disagrees.
Memorial

has

offered

evidence

that

it

investigated

While Lee
Hammer’s

allegations, there is also evidence that the investigation was
concluded in less than twenty-four hours and may not have conformed
with Lee Memorial’s policies regarding preservation of evidence,
post-investigation

training

false accusations.

and

education,

and

prosecution

of

Therefore, the Court finds that whether Lee

Memorial’s investigation was sufficient to constitute “appropriate
action” is a question for the jury.

See Samedi v. Miami-Dade Cty.,

134 F. Supp. 2d 1320, 1253 (S.D. Fla. 2001) (denying summary
judgment on negligent retention claim because “a question exists
as to the reasonableness of the investigative and/or corrective
action that County undertook once it was on notice”).
Apart from the Hammer allegation, there is also evidence that
Lee Memorial failed to investigate Hechavarria’s battery arrest.
Hechavarria testified at a deposition that he informed his direct
supervisor of the arrest the next day he worked, but there is
nothing in the record to suggest Lee Memorial took any action in
response,

despite

a

policy

requiring

an

investigation.

Lee

Memorial argues in its motion that it could not reasonably foresee
Hechavarria would sexually assault a stranger based on the battery
arrest.

(Doc. #97, p. 35.)

However, the issue is whether Lee

Memorial knew or should have known of Hechavarria’s unfitness and

23

failed

to

favorable

take
to

appropriate

plaintiff,

Lee

action.

Viewed

Memorial’s

in

lack

a

of

light

must

response

to

Hechavarria’s arrest supports plaintiff’s claim that Lee Memorial
did not take appropriate action. 16

Accordingly, the Court finds

it is inappropriate to grant summary judgment on the negligent
retention and negligent supervision claims.
C. Count Four – Negligence
In the fourth count of the Amended Complaint, plaintiff
asserts a claim of ordinary negligence against Lee Memorial. (Doc.
#31, pp. 10-11.)
protect

her

Plaintiff alleges (1) Lee Memorial had a duty to

against

“reasonably

foreseeable

criminal

acts

committed” on its property by its employees or third parties, (2)
Lee Memorial breached that duty by failing to take adequate steps
to protect her from Hechavarria, and (3) Lee Memorial’s breach
resulted in plaintiff being sexually assaulted.

(Id.)

While

framed as an ordinary negligence claim, the Court finds plaintiff
is actually asserting a negligent security claim.

16

See Nicholson

To the extent Lee Memorial is arguing plaintiff cannot
demonstrate Lee Memorial’s failure to investigate the battery
arrest was a proximate cause of plaintiff’s harm, the Court finds
that issue should be decided by a jury. See McCain v. Fla. Power
Corp., 593 So. 2d 500, 504 (Fla. 1992) (“[T]he question of
foreseeability as it relates to proximate causation generally must
be left to the fact-finder to resolve.
Thus, where reasonable
persons could differ as to whether the facts establish proximate
causation—i.e., whether the specific injury was genuinely
foreseeable or merely an improbable freak—then the resolution of
the issue must be left to the fact-finder.”).

24

v. Stonybrook Apartments, LLC, 154 So. 3d 490, 494 (Fla. 4th DCA
2015) (“Ordinary negligence involves active negligence—meaning the
tort-feaser actually does something to harm the injured party,
whereas premises liability involves passive negligence—meaning the
tort-feaser’s failure to do something to its property resulted in
harm to the injured party.

As negligent security actions concern

the landowner’s failure to keep the premises safe and secure from
foreseeable criminal activity, it follows that they fall under the
umbrella of premises liability as opposed to ordinary negligence.”
(citation

omitted));

see

also

Hammer,

2018

WL

5078909,

*5

(determining identically alleged ordinary negligence claim was a
re-allegation of separate negligent security claim).
In its motion, Lee Memorial first argues plaintiff cannot
establish it had a duty to protect her from sexual assault because
such an assault was not reasonably foreseeable.
38-39.)

The Court disagrees.

(Doc. #97, pp.

As noted above, “negligent security

cases fall under the auspices of premises liability as opposed to
ordinary negligence.” Nicholson, 154 So. 3d at 494. Under Florida
law, a business owes invitees a duty to use due care to maintain
its premises in a reasonably safe condition. 17

17

Banosmoreno v.

A hospital patient is a business invitee under Florida law.
See Post v. Lunney, 261 So. 2d 146, 147-48 (Fla. 1972) (“[A]n
invitee is one who enters upon the premises of another for purposes
connected with the business of the owner or occupant of the
premises.” (quotation and citation omitted)).

25

Walgreen Co., 299 Fed. App’x 912, 913 (11th Cir. 2008) (citing
Stevens v. Jefferson, 436 So. 2d 33, 34 (Fla. 1983)).

This

includes the duty to protect customers from criminal attacks that
are reasonably foreseeable.

Id. (citations omitted).

Foreseeability can be shown by two alternative means.

First,

“a plaintiff may demonstrate that ‘a proprietor knew or should
have known of a dangerous condition on his premises that was likely
to cause harm to a patron.’”
34).

Id. (quoting Stevens, 436 So. 2d at

Second, “a plaintiff can show that a ‘proprietor knew or

should have known of the dangerous propensities of a particular
patron.’”

Id. (quoting Stevens, 436 So. 2d at 34).

Viewing the

evidence in a light must favorable to plaintiff, the Court finds
the Hammer incident and the battery arrest are sufficient to show
Lee Memorial knew or should have known of Hechavarria’s dangerous
propensities.

See Mulhearn v. K-Mart Corp., 2006 WL 2460664, *2

(M.D. Fla. Aug. 23, 2006) (“Where prior similar acts have been
used to demonstrate foreseeability, the opinions suggest that
violent

crimes

crimes.”).

of

any

type

are

predictive

of

other

violent

Therefore, Hechavarria’s alleged sexual assault was

reasonably foreseeable and Lee Memorial had a duty to protect
plaintiff from it.
Lee Memorial next argues that even if it had a duty to protect
plaintiff from sexual assault, plaintiff cannot demonstrate (1)
Lee Memorial breached that duty or (2) Lee Memorial’s breach caused

26

plaintiff’s harm.

(Doc. #97, pp. 39-40.)

Plaintiff alleges that

Lee Memorial breached its duty to protect her from reasonably
foreseeable

criminal

acts

“by

failing

to

take

reasonable,

necessary and adequate steps” to protect her from being sexually
assaulted by Hechavarria. 18 (Doc. #31, p. 11.)

She also alleges

that the sexual assault by Hechavarria was the proximate result of
Lee Memorial’s breach.

(Id.)

The Court finds that whether Lee

Memorial breached its duty to protect plaintiff and whether that
breach, if any, was the proximate cause of the alleged sexual
assault are matters for a jury to decide.

See Garrison Retirement

Home Corp. v. Hancock, 484 So. 2d 1257, 1262 (Fla. 4th DCA 1985)
(noting that whether a duty was breached and whether the breach,
if any, was the proximate cause of an accident “are traditional
jury questions in tort actions”); see also St. Fort ex rel. St.
Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 250 (Fla.
4th

DCA

2005)

(noting

proximate

cause

“is

generally

a

jury

question” and “[c]ircumstances under which a court may resolve
proximate

cause

as

a

matter

of

18

law

are

extremely

limited”).

In arguing Lee Memorial breached its duty, plaintiff relies
in part on Lee Memorial’s alleged failure to follow its own
policies. (Doc. #119, pp. 39-40.) In the context of governmental
tort litigation, a written policy or manual does not establish a
legal duty vis-à-vis individual members of the public. Pollack v.
Fla. Dep’t of Highway Patrol, 882 So. 2d 928, 937 (Fla. 2004).
However, such documents “may be instructive in determining whether
the alleged tortfeasor acted negligently in fulfilling an
independently established duty of care.” Id.

27

Accordingly,

Lee

Memorial’s

request

for

summary

judgment

on

plaintiff’s negligence claim is denied.
D. Count Five – Negligent Hiring
In the fifth count of the Amended Complaint, plaintiff alleges
Lee Memorial was negligent in hiring Hechavarria.
11-13.)

(Doc. #31, pp.

In its motion, Lee Memorial raises several arguments as

to why it is entitled to summary judgment on this claim.

(Doc.

#97, pp. 19-31.) However, in her response to the motion, plaintiff
withdraws

the

claim.

(Doc.

#119,

p.

40.)

Therefore,

Lee

Memorial’s arguments have been rendered moot.
Accordingly, it is now
ORDERED:
1. Defendant’s Motion for Summary

Judgment (Doc. #97) is

DENIED.
2. Count Five of the Amended Complaint is dismissed with
prejudice.

DONE AND ORDERED at Fort Myers, Florida, this
February, 2019.

Copies: Counsel of record

28

8th

day of