Cassell v. India

• Decision Date: 22 August 2007
• Docket Number: No. 4D06-1716.,4D06-1716.
• Citation: 964 So.2d 190
• Parties: David CASSELL, Appellant, v. John INDIA and City of Pompano Beach Police Department, Appellees.
• Court: Florida District Court of Appeals

964 So.2d 190

David CASSELL, Appellant, v. John INDIA and City of Pompano Beach Police Department, Appellees.

No. 4D06-1716.

District Court of Appeal of Florida, Fourth District.

August 22, 2007.

Rehearing Denied October 8, 2007.

Alain E. Boileau and Robert H. Schwartz of Adorno & Yoss LLP, Fort Lauderdale, for appellant.

Jacqueline G. Emanuel of Riley, Knoerr & Emanuel, Fort Lauderdale, for appellee John India.

TAYLOR, J.

David Cassell, a police lieutenant for the Pompano Beach Police Department, appeals a final judgment of $50,000 entered in favor of John India, a police officer supervised by Cassell. The final judgment was based on India's claim against Cassell for defamation and intentional infliction of emotional distress. Lieutenant Cassell argues on appeal that his motions for directed verdict should have been granted because he was entitled to absolute immunity for these claims. We agree and reverse the judgment.

John India worked under Lieutenant David Cassell's supervision at the Pompano Beach Police Department from 1987 to 1997. On October 10, 1997, India was on road patrol when he attempted to arrest a suspect for possession of a stolen vehicle. The suspect fought with India and during the scuffle India injured his back. The next day India went to the hospital emergency room. The doctors recommended light duty work, with instructions to abstain from any bending, standing, lifting for prolonged periods, and lifting more than ten to twenty pounds. Cassell placed India on light duty status at the front desk. At that time, the police department had too many people on light duty. Cassell, as shift commander, was thus under pressure from the Chief of Police and the City Manager to ensure that everyone who was on light duty was properly placed there.

Before his injury, India had been an amateur bodybuilder for many years. He was used to working out with heavy weights. He discussed his weight training exercises and machines with his doctors. Although they did not tell him to stop lifting weights at the gym, they did caution him to be careful and not to use too much weight. India continued to work out, using lighter weights. Based on his knowledge of anatomy and body mechanics and his experience in bodybuilding, he felt that the exercise would help strengthen his lower back.

Cassell testified that on several occasions he had observed that India was "pumped up" at work and appeared to have been working out. Cassell believed that this was inconsistent with India's light duty assignment and contrary to his restriction against lifting anything over ten to twenty pounds. Cassell reported his observations to his superior officer, Captain Bill Wimer, and was told to report the matter to the city's insurance department. The insurance department then placed India under surveillance. Surveillance videos taken while India was on light duty showed him lifting weights in a gymnasium. Daniel Murray, a captain at the police department, discussed the surveillance video with India's orthopedic surgeon. The surgeon said there was no problem with India's activities as depicted on the videotape. Nevertheless, the city's insurance department contacted the Florida Department of Insurance (DOI) to request a fraud investigation.

Officer Hankz, who had witnessed the altercation with the suspect that injured India, heard rumors that India was going to be arrested. He approached Cassell, who was his lieutenant, and asked him if the rumors were true. Cassell said that he could neither confirm nor deny the rumors. Later, after the rumors became more widespread, Hankz again questioned Cassell about the rumors, and Cassell told him that India's status there was questionable. On a third occasion, Hankz asked Cassell about these same rumors and also asked him about a rumor that India was going to be arrested on a specific date. Cassell responded, "Yeah, and there is a Dr. Shapiro involved in it, too."

Charles Scibilia was a detective and a PBA representative at the Pompano Beach Police Department in 1997. He heard that India had been hurt, but India never approached him about a disability pension. On January 31, 1998, Scibilia was having a discussion with Brian McDonald, a Pompano Beach officer and elected member of the pension board. India's name came up in the conversation. They were discussing India's back injury and wondering whether he might need a disability pension. Cassell approached them, interrupted their conversation, and interjected that India had a lot of personal problems. He said that he knew for a fact that India did not get hurt on duty. Scibilia interpreted Cassell's statement as accusing India of a felony fraud. Cassell denied accusing India of fraud, but admitted suggesting that India was going to be arrested. He acknowledged that he never actually believed that India would be arrested; he said his remarks were "off-the-cuff." But, because Scibilia thought that Cassell was trying to influence him to deny India a disability pension, Scibilia complained to Internal Affairs. He believed he had a responsibility, as both a police officer and a PBA representative, to report that India's superior officer was accusing a fellow officer of committing a felony.

By May 27, 1998, India had returned to full-duty work. On September 4, 1998, DOI closed its investigation of India. Captain Murray denied telling Cassell to call John Landry at DOI to have the case reopened. However, he did give Cassell a "chain of command" form, instructing him to contact Landry and find out why they were declining prosecution. Cassell spoke to Landry two or three times. Cassell asked him why he had not investigated the case more thoroughly. Landry responded that it was none of his business. On October 9, 1998, Cassell asked to speak to Landry's superior to try to get the investigation reopened. Internal Affairs closed its investigation in July 1999. No charges were ever filed, and India was never arrested.

India sued both Cassell and the City of Pompano Beach. The second amended complaint alleged that Cassell had made false statements to several individuals suggesting that India was fraudulently obtaining workers' compensation benefits. Paragraph 19 of the second amended complaint alleged:

The Defendant, LIEUTENANT DAVID CASSELL, was within the course and scope of his employment with the Defendant, CITY OF POMPANO BEACH, during the time of the above described actions.

In his answer to the second amended complaint, Cassell denied the wrongful conduct, but admitted that he was in the course and scope of his employment at all material times.

At the close of the plaintiff's case, Cassell moved for a directed verdict based upon absolute immunity. The trial judge denied the motion. He conceded that he was having a great deal of difficulty with the issue, but was sending the case to the jury in an abundance of caution.¹ The jury returned a verdict finding Cassell liable on theories of defamation and intentional infliction of emotional distress. The jury awarded damages in the amount of $50,000. Cassell renewed his motion for directed verdict and moved for judgment notwithstanding the verdict, a new trial and/or remittitur. The trial court denied the motions and entered final judgment for India.

Cassell argues that the trial court erred as a matter of law in denying his motions for directed verdict because he was entitled to absolute immunity from India's defamation and intentional infliction of emotional distress claims. Specifically, he argues that his alleged defamatory statements were made within the course and scope of his duties and employment as a police officer, as a lieutenant in the chain of command, and as India's supervisor. Cassell contends that he was authorized to make statements regarding the veracity of his subordinate's alleged injury, not only to the chain of command, but to the insurance department, representatives from the PBA and the Pension Board, and to another subordinate who witnessed the incident causing the alleged injury and who questioned Cassell directly about the matter. For these same reasons, Cassell argues he is entitled to absolute immunity from India's claim for intentional infliction of emotional distress.

Our standard of review of a trial court's ruling on a motion for directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006), review denied, 954 So.2d 28 (Fla.2007). The question of whether an alleged defamatory statement is absolutely privileged is a question of law for the court. See Resha v. Tucker, 670 So.2d 56, 57 (Fla.1996).

An absolute privilege has been explained, as follows:

"These `absolute privileges' are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefor the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor."

Fridovich v. Fridovich, 598 So.2d 65, 68 (Fla.1992) (quoting Restatement (Second) of Torts § 584, at 243) (emphasis omitted).

In Florida, "[p]ublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation." Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997). An absolute privilege protects the statements of all public officials,...