Sapp v. City of Tallahassee

• Decision Date: 15 July 1977
• Docket Number: No. DD-251,DD-251
• Parties: Beverly SAPP, Appellant, v. CITY OF TALLAHASSEE, Holiday Inns, Inc., a Foreign Corporation, Adam H. Jones, Richard F. Jones, Kendrick A. Jones and Kathleen M. Jones, as Licensees, Appellees.
• Court: Florida District Court of Appeals

Page 363

348 So.2d 363

Beverly SAPP, Appellant, v. CITY OF TALLAHASSEE, Holiday Inns, Inc., a Foreign Corporation, Adam H. Jones, Richard F. Jones, Kendrick A. Jones and Kathleen M. Jones, as Licensees, Appellees.

No. DD-251.

District Court of Appeal of Florida, First District.

July 15, 1977.

Rehearing Denied Aug. 18, 1977.

John C. Cooper and W. Dexter Douglass, Douglass & Powell, Tallahassee, for appellant.

Anne C. Booth and Edgar Booth, Hall & Booth, Julius Parker, Jr., Madigan, Parker, Gatlin, Truett & Swedmark, Bryan Henry, Tallahassee, for appellees.

ERVIN, Judge.

Appellant, Beverly Sapp, appeals the dismissal of two defendants, Holiday Inns, Inc. and the City of Tallahassee, from her personal injury suit. We affirm in part and reverse in part.

THE ALLEGED FACTS

Ms. Sapp's second amended complaint alleges Tallahassee Police Department officers, on the evening of September 4, 1974, were on special assignment at the Tallahassee round Holiday Inn. One of the officers observed two males in the rear parking area and radioed a suspicious persons report to another officer on stake-out within the hotel. The officers observed the men loiter at opposite ends of the sidewalk near the rear entrance of the hotel for about ten minutes. Ms. Sapp, a temporary employee of the Inn, was then observed leaving the rear entrance, and looking for her ride before reentering the hotel. The officer on stake-out saw the two males follow her into the hotel about a minute later. Other than reporting in, the officer took no action. Twenty minutes later he saw the males running from the hotel after severely beating and robbing Ms. Sapp inside the hotel near the rear entrance.

The second amended complaint alleges the officers owed appellant a special duty to protect her from physical assaults and were negligent in failing to properly investigate the behavior of the men. In count two, appellees Adam, Richard, Kendrick and Kathleen Jones were alleged to be franchisees or licensees of the hotel and jointly and severally liable with appellee Holiday Inns, Inc., the national organization and franchisor, for the negligence of the hotel's management in failing to provide adequate security in the rear parking areas. The trial court dismissed both the City of Tallahassee and Holiday Inns, Inc. since no showing of a duty to Ms. Sapp was made.

THE CITY'S LIABILITY

It is clear before a municipality may be held liable for the negligence of its employees, there must be shown the existence of a special duty, something more than the duty owed to the public generally. Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975); Evett v. City of Inverness, 224 So.2d 365 (Fla. 2nd DCA 1969); Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). Ms. Sapp contends the police undertook a special duty to those persons using the rear area of the Holiday Inn, and she properly comes within that class. Such allegations are not sufficient under Florida decisional law. This court in Florida First National Bank, supra, held the plaintiff, guardian of two minor children, stated a cause of action for the negligence of police officers in failing to investigate and report on complaints of child abuse involving the father of the minor children. We held:

"Here, the municipality, through its employees, engaged in an undertaking with reference to the Dobbert children. Other persons all of whom were in positions to have gone to the aid of the Dobbert children but for their reliance upon the municipal employees refrained from rendering aid."

In the Supreme Court's denial of certiorari, City of Jacksonville v. Florida First National Bank of Jacksonville, 339 So.2d 632 (Fla.1976), Justice England, in a concurring opinion, expanded on this key point:

"As the district court's careful opinion shows, however, the facts in this case are so disparate from any other case which has ever considered the scope of municipal liability that the requisite factual similarity is wholly absent. Merely to mention some of the controlling facts here (as alleged in the complaint) is to highlight the differences:

(1) In this case a state statute directed procedures for the detection and prevention of child abuse. The Jacksonville police failed or refused to comply with them, with the consequence that the appropriate state agency never had the opportunity to know that the Dobbert children were in need of its services. No similar procedural default, resulting in injuries to the very persons the statute was designed to protect, occurred in the decisions cited for conflict jurisdiction.

(2) Jacksonville policemen actually contacted and superficially examined the Dobbert children on the basis of child abuse complaints. No such direct and personal contact with the persons injured was involved in the Wong, ¹ Modlin, ² and Evett ³ cases.

(3) Mrs. Dobbert was in a Jacksonville jail and prison farm, and obviously unable to protect her children from abuse. She told responsible Jacksonville officials of her concerns, but the Jacksonville bureaucracy proved ineffective to deal with the problem. As a consequence, the very injuries of which she (and also her neighbors) warned were in fact inflicted. Nothing in Wong, Modlin or Evett approaches this factual setting.

(4) The Jacksonville police and its investigators failed or refused to make written reports to their superiors, although internal procedures required that they do so. The injuries suffered were precisely those which might have been prevented had there been reports on file as to the particular individuals who suffered repetitive and cumulative injuries. Again the decisions cited for 'conflict' bear no factual resemblance to this case." (Footnotes added)

There is here no showing of a violation of statutory procedures by the Tallahassee police nor a showing of a direct and personal contact with Ms. Sapp. There is no allegation in the complaint of reliance by Ms. Sapp on the City's police surveillance at the time the incident took place. This is not a situation where police authorities undertook a responsibility to particular members of the public, exposing them, without adequate protection, to risks which then materialize into actual injury. Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968).

HOLIDAY INN'S LIABILITY

Ms. Sapp's second amended complaint alleges Holiday Inns, Inc. is jointly and severally liable with the local owners of the Tallahassee Holiday Inn for her injuries. The sole ground relied upon by Holiday Inns in its motion to dismiss was that there was no operational responsibility exercised by Holiday Inns over the motel facility. No legal relationship between Holiday Inns, Inc. and the local establishment was alleged in the amended complaint. We agree with the trial court that the complaint is legally insufficient in the absence of such allegations, but find the dismissal should be without prejudice. While Ms. Sapp had filed a complaint, a first amended complaint and finally a second amended complaint, the count alleging negligence by Holiday Inns, Inc. in the second amended complaint was for the first time dismissed by the court. No prior orders had been entered dismissing her cause of action against Holiday Inns, Inc. without prejudice. We are of course committed to the rule "that amendments to pleadings be liberally allowed in the interest of justice so that the merits of the case may be reached for adjudication whenever possible . . . ." Conklin v. Smith, 191 So.2d 311, 313 (Fla. 1st DCA 1966). Cf. Fla. R.Civ.P. 1.190.

As argued in her brief, Ms. Sapp can show an agency relationship between the local motel operation and the national Holiday Inn, Inc. by properly alleging control and domination on the part of the franchisor. See Cawthon v. Phillips Petroleum Company, 124 So.2d 517 (...