Hammer v. Lee Memorial Health System et al
Filing
24
OPINION and ORDER granting defendant's 6 motion to dismiss. See Opinion and Order for details. Signed by Judge John E. Steele on 8/3/2018. (CMG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIANNA HAMMER,
Plaintiff,
v.
Case No:
2:18-cv-347-FtM-29MRM
LEE MEMORIAL HEALTH SYSTEM
and JEOVANNI HECHAVARRIA,
R.N.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendant’s Partial
Motion to Dismiss Plaintiff’s Second Amended Complaint for Damages
(Doc. #6) filed on May 24, 2018.
Plaintiff filed a Response in
Opposition (Doc. #15) on June 7, 2018.
For the reasons set forth
below, the motion is granted.
I.
On April 24, 2018, Plaintiff Brianna Hammer (Plaintiff) filed
a seven-count Second Amended Complaint against Lee Memorial Health
System (Lee Memorial) and Jeovanni Hechavarria (Hechavarria) in
the Circuit Court of the Twentieth Judicial Circuit in and for Lee
County, Florida.
the
case
on
jurisdiction.
the
(Doc. #2.)
basis
(Doc. #1.)
of
On May 17, 2018, Lee Memorial removed
federal
question
and
supplemental
Plaintiff asserts claims against Lee
Memorial for violation of her civil rights pursuant to 42 U.S.C.
§ 1983 (Count I), negligent supervision (Count II), negligent
hiring (Count III), negligent security (Count IV), negligence
(Count V), and vicarious liability (Count VI).
Plaintiff asserts
a claim against Hechavarria for assault and battery (Count VII).
According to the Second Amended Complaint (Doc. #2): On March
15, 2015 through March 17, 2015, Plaintiff was a patient at Cape
Coral Hospital, a hospital operated by Lee Memorial.
(Id. ¶¶ 6,
8, 9.) Hechavarria was Plaintiff’s nurse for the evenings of March
15, 2015 and March 16, 2015.
Plaintiff
was
medicated
(Id. ¶ 10.)
with
“a
On March 16, 2015, while
narcotic
pain
medication,”
Hechavarria touched Plaintiff’s “breasts, lower back, buttocks,
and
then
spread
her
legs
Plaintiff’s consent.
and
looked
at
(Id. ¶¶ 12, 13.)
her
vagina”
without
Later that evening,
Hechavarria returned to Plaintiff’s room and put “his hand in
between
[Plaintiff’s]
Plaintiff’s consent.
legs
penetrating
(Id. ¶ 14.)
her
vagina”
without
This lawsuit followed.
Lee Memorial now moves to dismiss Counts II, III, IV, V, and
VI.
Lee Memorial argues those Counts should be dismissed because
Plaintiff failed to allege sufficient facts to state actionable
claims against Lee Memorial.
II.
Federal Rule of Civil Procedure 8(a) requires a complaint to
contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.”
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Fed. R. Civ. P. 8(a)(2).
In
evaluating a Rule 12(b)(6) motion seeking to dismiss a complaint
for failing to comply with Rule 8(a), the Court must accept as
true all factual allegations in the complaint and “construe them
in the light most favorable to the plaintiff.”
Baloco ex rel.
Tapia v. Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011).
However,
mere
“[l]egal
conclusions
without
adequate
support are entitled to no assumption of truth.”
factual
Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
To avoid dismissal under Rule 12(b)(6), the complaint must
contain sufficient factual allegations to “raise a right to relief
above the speculative level.”
U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly, 550
To do so requires “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
This
plausibility pleading obligation demands “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
Id. at 555 (citation omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (“Factual allegations that are
merely consistent with a defendant’s liability fall short of being
facially plausible.” (citation omitted)).
Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
allegations,
a
court
should
assume
3
their
veracity
and
then
determine whether they plausibly give rise to an entitlement to
relief.”
Iqbal, 556 U.S. at 679.
III.
As
a
preliminary
matter,
the
Plaintiff’s Response in Opposition.
Court
first
addresses
In it, Plaintiff argues
against dismissal by relying on facts not alleged in her Second
Amended Complaint.
Because the Court’s review of a motion to
dismiss is generally limited “to a consideration of the pleadings
and exhibits attached thereto,” the Court will not consider the
newly alleged facts in the Response in Opposition when analyzing
the instant Motion to Dismiss.
Kinsey v. MLH Fin. Servs., Inc.,
509 F. App'x 852, 853 (11th Cir. 2013).
A.
The Negligent Supervision Claim (Count II)
Count II
supervision,
is
a claim against Lee Memorial for negligent
alleging
that
Lee
Memorial
negligently
allowed
Hechavarria to “have unsupervised and unfettered access to female
patients while in the hospital.”
(Doc. #2, ¶ 39.)
Lee Memorial
argues Count II should be dismissed because Plaintiff failed to
allege sufficient facts to state a cause of action for negligent
supervision.
The Court agrees.
“Negligent
supervision
occurs
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 actions such as investigation,
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discharge, or reassignment.” Dep't of Envtl. Prot. v. Hardy, 907
So.2d 655, 660 (Fla. 5th DCA 2005).
To state a claim for negligent
supervision under Florida law, a plaintiff must “allege facts
sufficient to show that once an employer received actual or
constructive notice of problems with an employee's fitness, it was
unreasonable for the employer not to investigate or take corrective
action.”
Id.
Additionally, a plaintiff must demonstrate “a
connection and foreseeability between the employee's [] history
and the current tort committed by the employee.”
Id. at 661.
Plaintiff has not alleged any facts demonstrating that Lee
Memorial “received actual or constructive notice of problems with”
Hechavarria’s fitness to work as a nurse.
Id.
Thus, Plaintiff
has failed to state a claim for negligent supervision.
Count II
is therefore dismissed without prejudice.
B.
The Negligent Hiring Claim (Count III)
Count III is a claim against Lee Memorial for negligent
hiring.
Specifically, it asserts that Lee Memorial “failed to
make an adequate investigation into” Hechavarria’s background,
which would have revealed that Hechavarria "was unfit to be hired
as a night nurse.”
(Doc. # 2, ¶ 44.)
Defendant argues Count III
should be dismissed because Plaintiff failed to allege sufficient
facts to state a claim for negligent hiring.
The Court agrees.
“Negligent hiring occurs when, prior to the time the employee
is actually hired, the employer knew or should have known of the
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employee's unfitness . . . .”
438 (Fla. 2d DCA 1986).
Garcia v. Duffy, 492 So. 2d 435,
To state a claim for negligent hiring
under Florida law, a plaintiff must allege that: (1) the employer
was required to make an appropriate investigation of the employee,
but failed to do so; (2) an appropriate investigation would have
revealed the employee’s unsuitability for employment; and (3) “it
was unreasonable for the employer to hire the employee in light of
the information [the employer] knew or should have known.”
Id. at
440.
Plaintiff alleges no facts demonstrating that Lee Memorial
knew, or should have known, about Hechavarria’s unfitness to serve
as a nurse.
negligent
Thus, Plaintiff has failed to state a claim for
hiring.
Count
III
is
therefore
dismissed
without
prejudice.
C.
The Negligent Security Claim (Count IV)
Count IV asserts a claim against Lee Memorial for negligent
security.
Specifically, Count IV alleges that Lee Memorial failed
to provide Plaintiff with adequate security because Hechavarria’s
actions against Plaintiff were reasonably foreseeable in light of
Cape Coral Hospital’s location “within in a high crime area . . .
.”
(Doc. #1, ¶¶ 49-50.)
Defendant argues Count IV should be
dismissed because (1) it is duplicative of the negligence claim
asserted in Count V; and (2) Plaintiff failed to allege sufficient
6
facts to state a claim for negligent security.
The Court will
address each argument in turn.
In Florida, “negligent security cases fall under the auspices
of
premises
liability
as
opposed
to
ordinary
negligence.”
Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490, 494 (Fla.
4th DCA 2015).
Unlike in ordinary negligence cases, a defendant’s
duty of care in a premises liability action depends “on the
plaintiff's status to the land.”
Id. at 494.
Thus, because a
negligent security claim is a subject to a different duty of care
analysis than an ordinary negligence claim, the Court will not
dismiss Count IV for being a duplicative Count.
See id. (noting
that “[o]rdinary negligence involves active negligence . . .
whereas premises liability involves passive negligence”).
Under Florida premises liability principles, a property owner
owes two duties to a business invitee1: “(1) to take ordinary and
reasonable care to keep its premises reasonably safe for invitees;
and (2) to warn of perils that were known or should have been known
to the owner and of which the invitee could not discover.”
Delgado
v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011).
“The
duty of care owed by a landowner to an invitee with respect to
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)).
1
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protection from criminal acts of a third person is dependant upon
the foreseeability of that third party's activity.”
Admiral's
Port Condo. Ass’n, Inc. V. Feldman, 426 So. 2d 1054, 1054 (Fla. 3d
DCA 1983). While Plaintiff has generally alleged that Lee Memorial
was aware of Cape Coral’s location within a high crime area,
Plaintiff has asserted no facts demonstrating that the alleged
sexual assault was foreseeable.
Thus, Plaintiff has failed to
state a claim for negligent security.
Count IV is therefore
dismissed without prejudice.
D.
The Negligence Claim (Count V)
Count V is a negligence claim against Lee Memorial. Defendant
argues Count V should be dismissed because Plaintiff failed to
allege sufficient facts to state a claim for negligence. The Court
agrees.
Under Florida law, “[t]o maintain an action for negligence,
a plaintiff must establish that the defendant owed a duty, that
the defendant breached that duty, and that this breach caused the
plaintiff damages.” Florida Dep't of Corr. v. Abril, 969 So. 2d
201, 204 (Fla. 2007).
“The duty element of negligence focuses on
whether the defendant's conduct foreseeably created a broader
‘zone of risk’ that poses a general threat of harm to others.”
McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)
(citations omitted).
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Plaintiff alleges that Lee Memorial owed Plaintiff a duty to
protect
her
from
foreseeable
criminal
acts
committed
by
its
employees, and that Lee Memorial breached that duty by “failing to
take
reasonable,
necessary
and
adequate
steps”
Plaintiff from sexual assault by Hechavarria.
The
Court
finds
Plaintiff
has
failed
to
to
protect
(Doc. #2, ¶ 57.)
plausibly
state
a
negligence claim because Plaintiff has not alleged any facts
demonstrating that Hechavarria’s actions were foreseeable.
Count
V is therefore dismissed without prejudice.
E.
The Vicarious Liability Claim (Count VI)
Count VI asserts a claim against Lee Memorial for vicarious
liability.
Lee Memorial argues Count VI should be dismissed
because Plaintiff has not plausibly alleged that Hechavarria’s
alleged sexual assault was within the scope of his employment.
The Court agrees.
Under Florida law, “an employer cannot be held [vicariously]
liable for the tortious or criminal acts of an employee, unless
the acts were committed during the course of the employment and to
further a purpose or interest, however excessive or misguided, of
the employer.”
Iglesia Cristiana La Casa Del Senor, Inc. v. L.M.,
783 So. 2d 353, 356 (Fla. 3d DCA 2001) (citations omitted).
An
employee’s conduct is within the scope of his employment when it
“(1) is of the kind the employee is hired to perform, (2) occurs
substantially within the time and space limits authorized or
9
required by the work to be performed, and (3) is activated at least
in part by a purpose to serve the master.”
Goss v. Human Servs.
Assocs., Inc., 79 So. 3d 127, 132 (Fla. 5th DCA 2012).
Sexual assaults “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.”2 Id. (citation
omitted).
“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).
The Court finds Plaintiff has failed to state a plausible
claim against Lee Memorial for vicarious liability.
Although
Plaintiff alleges that Hechavarria was able to sexually assault
Plaintiff because of his position as her nurse, the alleged sexual
assault was a self-serving act that in no way furthered the
business of Lee Memorial.
See Agriturf, 656 So. 2d at 955 (finding
2
Relying on Williams v. Feather Sound, Inc., 386 So. 2d 1238,
1239-40 (Fla. 2d DCA 1980), Plaintiff argues that, under Florida
law, an employer may be vicariously liable for an employee’s
intentional torts if the employer knew or should have known the
employee posed a threat to others.
The Court finds Williams
unpersuasive because Williams involved a claim for negligent
hiring, not for vicarious liability. Id. at 1238 (“This appeal .
. . involves an aspect of the doctrine of negligent hiring.”).
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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); Mason
v. Fla. Sheriffs' Self–Ins. Fund, 699 So. 2d 268, 270 (Fla. 5th
DCA 1997) (holding sexual assault by officer not within scope of
employment, even though officer was on duty, in uniform, and
serving warrant on woman he raped).
not
plausibly
alleged
that
Thus, because Plaintiff has
Hechavarria’s
alleged
assault
was
within the scope of his employment, Plaintiff has failed to state
a claim for vicarious liability.3
Count VI is therefore dismissed
without prejudice.
Accordingly, it is hereby
ORDERED:
Defendant’s
Partial Motion to Dismiss Plaintiff’s Second
Amended Complaint for Damages (Doc. #6) is GRANTED as follows:
1.
Counts II, III, IV, V, and VI are dismissed without
prejudice.
Plaintiff argues the Court should apply Florida’s common carrier
vicarious liability analysis, which provides that common carriers
are vicariously liable for the torts of their employees “without
regard to whether they were committed within the scope of
employment.” Nazareth v. Herndon Ambulance Serv., Inc., 467 So.
2d 1076, 1078 (Fla. 5th DCA 1985). The Court finds such an analysis
to be inapplicable here because a hospital is not a common carrier.
See e.g.
Fla. Stat. § 561.01(19) (“‘Common carrier’ means any
person, firm, or corporation that undertakes for hire, as a regular
business, the transportation of persons or commodities from place
to place . . . .”).
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2.
Plaintiff may file an amended complaint within fourteen
(14) days of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this 3rd day of
August, 2018.
Copies: Parties and Counsel of record
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