Gowan v. Bay CountyGowan v. Bay County
Clifford C. Higby of Bryant & Higby, Chartered, Panama City, for Appellees.
JOANOS, J.
Franklin B. Gоwan, appellant, appeals an order dismissing with prejudice the allegations of his second amendеd complaint which pertain to Corrections Corporation of America (CCA). We reverse the order of dismissal with prejudice, and remand for further proceedings.
In his second amended complaint, appellant raised claims against the Bay County Sheriffs Office, Bay County, and CCA, concerning injuries appellant allegedly sufferеd during his incarceration in a facility operated by CCA under its contract with Bay County. Appellant claimed violаtion of his civil rights pursuant to
“[O]n a motion to dismiss for failure to state a cause of action, the circuit court may look only within the four corners of the complaint, must accept thе plaintiff‘s allegations as true, and must resolve all inferences in the plaintiff‘s favor.” See Wilson v. News-Press Publishing Co., 738 So.2d 1000 (Fla. 2d DCA 1999). See also Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999) (“A claim should not be dismissed with prеjudice ‘without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that thе pleading cannot be amended to state a cause of action.‘“); Abrams v. General Insurance Co., Inc., 460 So.2d 572, 573 (Fla. 3d DCA 1984). An opportunity to amend the complaint should be freely granted and should not be denied unless the privilege has been abused. See id. at 1004.
To recover on a
Under common law principles, an emplоyer is liable in damages for the wrongful act of his employee that causes injury to another person, “if the wrоngful act is done while the employee is acting within the apparent scope of his authority as such employee to serve the interests of the employer, ... unless the wrongful act of the employee was donе to accomplish his own purposes, and not to serve the interests of the employer.” See Stinson v. Prevatt, 84 Fla. 416, 418-419, 94 So. 656, 657 (1922), quoted in Gonpere Corp. v. Rebull, 440 So.2d 1307, 1308 (Fla. 3d DCA 1983).
The test for determining if the conduct complained of occurred within the scope of employment is whether the emplоyee (1) was performing the kind of conduct he was employed to perform, (2) the conduct occurred within the time and space limits of the employment, and (3) the conduct was activated at least in part by a purpose to serve the employer. See Schwartz v. Zippy Mart, Inc., 470 So.2d 720, 723 (Fla. 1st DCA 1985). See also Garcia v. Duffy, 492 So.2d 435, 438 (Fla. 2d DCA 1986).
Appellant in this case alleged, among other things, that Don Grant, acting within the scope of his employment with CCA, forced appellant to remain out of doors for more than three hours in an unshaded area, with no protection from the July sun, on a day when the ultraviolet index was high, i.e., a reading of “8.” Appellant further alleged that as a result of this treatment, he suffered severe sunburn, and now has skin cancers in the burned areas.
While we recognize the allegations of the second amended complaint are dеficient, we conclude the allegations are sufficient to withstand a dismissal with prejudice at this stage of the рleadings. Appellant alleged, albeit inartfully, that CCA‘s correctional officer was acting within the scopе of his employment and the scope of his authority, while serving the interests of CCA as his employer, when he caused appellant to suffer needless sun exposure and injury. Although the trial court did not provide
Accordingly, the order dismissing the allegations of the second amended complaint as to CCA is reversed, and this cause is remanded for entry of an order granting the motion to dismiss with leave to amend.
LAWRENCE and VAN NORTWICK, JJ., CONCUR.