Hinson v. Warren et al

Filing 25

OPINION AND ORDER granting 9 Motion for More Definite Statement/Motion to Dismiss. Signed by Judge Kenneth A. Marra on 4/9/2017. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-14018-CIV-MARRA
LITITA HINSON, as personal representative
of the Estate of RICHARD HASTON, deceased,
Plaintiff,
vs.
JAMES WARREN, in his individual capacity and
WILLIAM D. SNYDER, as Sheriff of
MARTIN COUNTY SHERIFF'S OFFICE,
Defendants.
_________________________________________/
OPINION AND ORDER
This cause is before the Court upon the Motion for More Definite Statement/Motion to
Dismiss Defendant of William D. Snyder’s, as Sheriff of Martin County. (DE 9). The Court has
carefully considered the Motion and is otherwise fully advised in the premises.
I. Background
Plaintiff Lititia Hinson (“Plaintifff”), as personal representative of the estate of Richard
Haston (“decedent”), brings a six-count Third Amended Complaint (“TAC,” DE 1-2) against
Defendants James Warren (“Warren”) and Defendant William D. Snyder, as Sheriff of Martin
County (“Sheriff”) (collectively, “Defendants”) for wrongful death (count one); a violation of
the fourth and fourteenth amendment pursuant to 42 U.S.C. §1983 for excessive force by Warren
(count two); a violation of the fourth and fourteenth amendment pursuant to 42 U.S.C. §1983 for
deliberate indifference by the Sheriff (count three); a violation of the fourth and fourteenth
amendment pursuant to 42 U.S.C. §1983 for supervisory liability against the Sheriff (count four);
negligent hiring by the Sheriff (count five) and negligent retention by the Sheriff (count six).

These claims arise out of allegations involving the police shooting and killing of decedent.
The Sheriff moves to dismiss and for a more definite statement, claiming that the
negligent hiring and retention claims should be subsumed into the wrongful death claim.
Additionally, the Sheriff contends that the separate section 1983 counts (counts three and four)
should be combined into one count.
Plaintiff responds that the negligent hiring and retention claims do not arise out of the
same actions that caused decedent’s death, and therefore these counts should proceed separately
from the wrongful death count. With respect to counts three and four, Plaintiff concedes that they
should be merged into one count.
II. Legal Standard
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).
III. Discussion
The Sheriff seeks to subsume the state law negligent hiring and retention claims into the
state wrongful death claim. The Florida state wrongful death statute provides that “[w]hen a
personal injury to the decedent results in death, no action for the personal injury shall survive,
and any such action pending at the time of death shall abate.” Florida Statute § 768.20. In other
words, “when death is the result of a personal injury, the law of Florida essentially substitutes a
statutory wrongful death action for the personal injury action . . . .” Niemi v. Brown &
Williamson Tobacco Corp., 862 So. 2d 31, 33 (Fla. Dist. Ct. App. 2003).
The question before the Court is whether the Florida wrongful death statue abates the
negligent hiring and retention claims. There is ample case law providing that personal injury
claims seeking recovery for pain and suffering, medical malpractice, battery and negligence must
be abated under Florida Statute § 768.20. See Cone v. Orosa, No. 13–cv–24674–JLK, 2014 WL
1383028, at * 2-3 (S.D. Fla. Apr. 8, 2014) (battery and negligence); Shehada v. Tavss, 965 F.
Supp. 2d 1358, 1378 (S.D. Fla. 2013) (battery); Martin v. United Sec. Svcs., Inc., 314 So. 2d
765, 770 (Fla. 1975) (pain and suffering); Salfi v. Columbia/JFK Med. Ctr. Ltd. Partnership, 942
So. 2d 417, 420 (Fla. Dist. Ct. App. 2006) (pain and suffering); Taylor v. Orlando Clinic, 555
So. 2d 876, 879 (Fla. Dist. Ct. App. 1989) (medical malpractice).

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The Sheriff contends that because the TAC alleges that the negligent hiring and retention
of Warren allegedly caused the death of decedent, these claims should be subsumed into the
wrongful death statute. In contrast, Plaintiff contends that the factual allegations of these claims
are “wholly distinct” from the allegations of the wrongful death action. (Resp. at 5.) A review
of these claims shows that the alleged negligent retention and hiring of Warren by the Sheriff
contributed to the death of decedent. (TAC ¶ ¶ 115-117, 127-130.) Indeed, an element of both
of these claims require that the plaintiff show that “the incompetence or unfitness [of the
employee] was a proximate cause of the plaintiff's injury.” Witover v. Celebrity Cruises, Inc.,
161 F. Supp. 2d 1139, 1148 (S.D. Fla. 2016); Davies v. Commercial Metals Co., 46 So.3d 71,
73–74 (Fla. Dist. Ct. App. 2010); Watson v. City of Hialeah, 552 So. 2d 1146, 1149 (Fla. Dist.
Ct. App. 1989). For this reason, the Court finds that the Sheriff is correct and these claims are
subsumed into the wrongful death statute.
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for
More Definite Statement/Motion to Dismiss (DE 9) is GRANTED. Counts five and six are
DISMISSED. In light of Plaintiff’s concession, the Court will permit Plaintiff leave to amend
the Complaint to merge counts three and four into one count. The amended complaint shall be
filed within 14 days of the date of entry of this Order.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 9th day of April, 2017.
______________________________________
KENNETH A. MARRA
United States District Judge

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