Mosby v. Harrell

• Decision Date: 23 June 2005
• Docket Number: No. 1D04-4206.,1D04-4206.
• Citation: 909 So.2d 323
• Parties: Kim Leonard MOSBY, Appellant, v. Sherri C. HARRELL and Florida Department of Law Enforcement, Appellees.
• Court: Florida District Court of Appeals

909 So.2d 323

Kim Leonard MOSBY, Appellant, v. Sherri C. HARRELL and Florida Department of Law Enforcement, Appellees.

No. 1D04-4206.

District Court of Appeal of Florida, First District.

June 23, 2005.

Rehearing Denied August 29, 2005.

Craig J. Cannon, Ocala, for Appellant.

Patrick H. Gonyear and Catherine A. Riggins of Vernis & Bowling of Miami, P.A., North Miami, for Appellees.

ALLEN, J.

The appellant challenges the trial court's dismissal with prejudice of three counts of his complaint for failure to state a cause of action against the Florida Department of Law Enforcement (FDLE) upon the trial court's determination that sovereign immunity insulates FDLE from liability in connection with negligent DNA testing and reporting by an FDLE employee and in connection with FDLE's negligent training and supervision of the employee. Because a cause of action against a private individual or business employer would exist as to the claims of negligent testing and reporting in the circumstances alleged in the complaint, and because these testing and reporting activities do not implicate "discretionary" level functions for which FDLE enjoys immunity from liability for its negligence, we reverse the trial court's dismissal of counts I (negligent testing) and III (negligent reporting) of the appellant's complaint. We recognize that count V of the appellant's complaint does not state a cause of action for negligent training and supervision, but because sovereign immunity does not necessarily preclude a cause of action against the state or its subsidiaries for negligent training and supervision, and because it does not clearly appear that an additional effort by the appellant to state a cause of action on these theories would be futile, we conclude that the trial court's with-prejudice dismissal of count V of the complaint was improper.

As the factual foundation for its ruling on a motion to dismiss a complaint for failure to state a cause of action, a court may consider only the factual allegations set forth in the complaint, must accept those allegations as true, and must resolve in the plaintiff's favor all inferences that might be drawn from those allegations. Gowan v. Bay County, 744 So.2d 1136 (Fla. 1st DCA 1999); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297 (Fla. 1st DCA 1999). Determination of whether a complaint sufficiently states a cause of action is an issue of law. Accordingly, a trial court's ruling on a motion to dismiss for failure to state a cause of action is subject to de novo review. Townsend.

The factual allegations in the complaint that are material to this appeal may be summarized as follows: The appellant was a police officer with the Ocala Police Department when a woman reported that the appellant had forced her to submit to a sexual relationship. Following the woman's report, DNA evidence was collected from her residence and submitted to FDLE's Tallahassee lab for testing. FDLE negligently trained and supervised the FDLE employee who conducted the DNA testing and reported the results to the appellant's employer. The testing was negligently performed by the FDLE employee, who then negligently and incorrectly reported to the Ocala Police Department that the appellant was the source of the DNA evidence. As a consequence of this negligent training, supervision, testing, and reporting, the appellant suffered various damages, including loss of wages and benefits following termination of his employment as a police officer.

The state and its subsidiaries are generally immune from tort liability, but pursuant to authority contained in article X, section 13, of the Florida Constitution, this general tort immunity has been waived by section 768.28(1), Florida Statutes, "under circumstances in which the state or agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of the state." Although this statutory language evinces a legislative intent to waive sovereign immunity on a broad basis, constitutional separation-of-powers considerations require that certain discretionary or planning level governmental functions remain immune from tort liability. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Accordingly, when the state or its subsidiary is sued in negligence, a court must first determine whether the circumstances alleged would subject a private person or business to liability under Florida law. If a private person or business would be subject to liability under the circumstances alleged, the court must then determine whether the challenged act or acts were "discretionary" in nature, and not merely "operational." See Henderson v. Bowden, 737 So.2d 532 (Fla.1999)

; Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). See also Lewis v. City of St. Petersburg, 260 F.3d 1260 (11th Cir.2001). We therefore address these issues in order, dealing first with the counts alleging negligent testing and reporting, and then dealing with the count alleging negligent training and supervision.

To state a claim for negligence under Florida law, a plaintiff must allege a duty of care owed by the defendant to the plaintiff, breach of that duty of care, and resulting damages. Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985). Because the appellant's complaint sufficiently alleges the required breach and damages elements as to counts I and III of the complaint, resolution of the first issue for determination turns on whether a private person or business in the position of FDLE would owe a duty of care to the appellant in the circumstances alleged in the complaint.

When a defendant's conduct creates a foreseeable zone of risk, Florida law generally will recognize a duty upon the defendant to either lessen the risk or see that sufficient precautions are taken to protect persons within that zone of risk from the harm that the risk poses. Henderson; McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). See also Pollock v. Florida Dep't of Highway Patrol, 882 So.2d 928 (Fla.2004)

. Consistent with this general principle, a private person or business conducting and reporting the testing involved in the present case would have owed the appellant a duty to exercise reasonable care in doing so, because it was reasonably foreseeable that negligent testing and reporting would imperil the appellant's continued employment as a police officer.

Ragsdale v. Mount Sinai Medical Center, 770 So.2d 167 (Fla. 3d DCA 2000), is a decision recognizing a duty of care under facts closely analogous to those involved in the present case. Ragsdale was a Metro-Dade police officer who submitted to urinalysis at Mount Sinai in connection with a physical examination required by the Metro-Dade Police Department. She alleged that Mount Sinai's testing of her urine for the presence of narcotics was negligently conducted and that Mount Sinai thereafter negligently and incorrectly reported to the Metro-Dade Police Department that her urine contained cocaine. In holding that the trial court had erred in determining that Mount Sinai owed Ragsdale no duty of reasonable care in connection with this testing and reporting, the third district reasoned as follows:

It was reasonably foreseeable that Ragsdale would be harmed if Mount Sinai negligently reported test results to the County. It is a virtual certainty that Ragsdale would be discharged as a police officer in the event of a positive drug test result. Thus, Ragsdale is a foreseeable plaintiff and Mount Sinai owes a duty to her.

770 So.2d at 169.

Because a private person or business employer in the position of FDLE would owe a duty of care to the appellant in connection with the DNA testing and reporting involved in this case, we next address whether the testing and reporting activities were discretionary or planning level governmental activities for which FDLE was entitled to sovereign immunity, or were instead merely operational level activities. The term "discretionary" in this context means that the governmental act in question involved an exercise of executive or legislative power such that a court's intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and planning. See Department of Health and Rehabilitative Services v. B.J.M., 656 So.2d 906 (Fla.1995)

; Kaisner. An "operational" function, on the other hand, is one not necessary to or inherent in policy, merely reflecting a secondary decision as to how those policies or plans will be implemented. Id.

As the Florida Supreme Court explained in Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985), "[h]ow a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care." 468 So.2d at 919 (emphasis supplied). The supreme court explained that this discretionary power to enforce the law is enjoyed on an equal basis by both traditional law enforcement officials and public safety regulatory officials such as building inspectors, fire department inspectors, health department inspectors, elevator inspectors, hotel inspectors, and environmental inspectors. But the supreme court was careful to emphasize that the activities for which law enforcement and public safety regulatory officials enjoy immunity are only those activities involving "basic discretionary judgment in the enforcement of the police power, public safety functions by a state, county, or municipal governmental entity." 468 So.2d at 923. Accordingly, as the supreme court explained in Henderson, for example, a law enforcement officer has discretion and enjoys immunity for his decision as to whether he or she will detain or arrest a person, but once the decision to effect an arrest or detention is made, the officer does not...