Johnson v. STATE HRSJohnson v. STATE HRS
Julie Johnson, individually, and as next friend of her children, Robin Johnson, Nicole Johnson, and Zachary Cleek, appeals from a final order dismissing her second amended complaint1 in this action under
Johnsоn alleges six counts in her second amended complaint: (I) deprivation of constitutional rights under
As we said in Troupe v. Redner, 652 So.2d 394, 395 (Fla. 2d DCA 1995):
Our function when reviewing an order of dismissal entered pursuant to rule 1.140(b), Florida Rules of Civil Procedure, is confined to whether the trial court properly concluded that the complaint did not state a cause of action. In reaching that determination, we must take the pleaded facts as true and we are not concerned with the quality of the allegations or how they will ultimately be proved.
Applying this standard of review to Johnson‘s complaint,2 we determine that she has used аll the necessary words and phrases to facially state a cause of action as to count I pursuant to
As to count II for false arrest/false imprisonment, we reverse the dismissal as to Clemento and the City. See Thomas v. Florida Game & Fresh Water Comm‘n, 627 So.2d 541 (Fla. 2d DCA 1993) (sovereign immunity does not bar action for false arrest); Hennagan v. Department of Highway Safety & Motor Vehicles, 467 So.2d 748 (Fla. 1st DCA 1985) (revеrsing dismissal of false imprisonment action against Department). We also reverse the dismissal of count II against Sackett and HRS as to plaintiffs Robin and Nicole, whom Sackett took into HRS custody. As to plaintiffs Johnson and Zaсhary, however, we affirm the dismissal of count II against Sackett and HRS because the alleged facts do not indicate that Sackett arrested or imprisoned Johnson or Zachary. We also note that Sackett hаd no authority to arrest or seize Johnson.
With respect to count III for assault and battery, we affirm the dismissal against Clemento and the City, except as to Johnson. None of the alleged facts indicate that Clemento committed an assault or battery against Robin, Nicole, or Zachary. While assault and battery as an “ordinary incident” of arrest is not an independent tort and is considered in calculating damages in an action for false arrest, Lester v. City of Tavares, 603 So.2d 18 (Fla. 5th DCA 1992), “arguably excessive force” to effect an arrest can present a jury question on an assault and battery count against an officer and municipality. City of Homestead v. Suarez, 591 So.2d 1125, 1126 (Fla. 3d DCA 1992).
With respect to Sackett and HRS, we affirm the dismissаl of count III as to Johnson, Nicole, and Zachary based on the lack of alleged facts to support an assault and battery. As to Robin, the trial court dismissed the assault and battery claim against HRS and dismissed the assault claim against Sackett, while it denied dismissal of Robin‘s battery claim against Sackett. We reverse the dismissal of Robin‘s assault and battery claim against HRS and her assault claim against Sackett, and we affirm the denial of the motiоn to dismiss Robin‘s battery claim against Sackett.
Count IV, which the trial court dismissed, alleges intentional infliction of emotional distress by Sackett and Clemento. The complaint contains sufficient allegations so that “the recitаtion of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!‘” Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 279 (Fla.1985) (quoting Restatement (Second) of Torts § 46 com.d (1965)). The elements of the сause of action are: “(1) the wrongdoer‘s conduct was intentional or reckless... (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerаble in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.” Dominguez v. Equitable Life Assurance Soc‘y, 438 So.2d 58, 59 (Fla. 3d DCA 1983), approved, 467 So.2d 281 (Fla.1985).
We also reverse the dismissal of count V for negligence with respect to the negligent investigation allegations against Sackett and HRS. See Department of Health & Rehab. Servs. v. Yamuni, 529 So.2d 258 (Fla.1988) (recognizing cause of action for negligent investigation by HRS caseworker where failure to take child resulted in injuries). As tо the remainder of count V against all the defendants, we affirm the trial court‘s dismissal. See Carpenter v. City of St. Petersburg, 547 So.2d 339 (Fla. 2d DCA 1989) (officer and city immune from liability under
With respect to the malicious prosecution claims in count VI against the City and HRS, the trial court properly dismissed those claims. As this court sаid in Sebring Utilities Comm‘n v. Sicher, 509 So.2d 968, 970 (Fla. 2d DCA 1987), “Malice is not only an essential element of malicious prosecution; it is the gist of such a cause of action.”
The defendants also attacked the joinder of the individual defendants and the government entities in counts II, III, V, and VI of the complaint. It is well established that under
In summary, we dispose of the counts as follows: (I) reverse dismissal; (II) affirm dismissal against Sackett and HRS as to Johnson and Zachary, reverse dismissal against Sackett and HRS as to Robin and Nicole, and reverse dismissal against Clemento and the City; (III) affirm dismissal against Sackett and HRS as to Johnson, Nicole, and Zachary, affirm denial of dismissal on Robin‘s battery claim against Sackett, reverse dismissal on Robin‘s assault and battery claim against HRS and assault claim against Sackett, affirm dismissal against Clemento and the City as to Robin, Nicole, and Zachary, and reverse dismissal against Clemento and the City as to Johnson; (IV) reverse dismissal against Sackett and Clеmento; (V) reverse dismissal of negligent investigation claim against Sackett and HRS, and affirm the dismissal of the remainder of the count; and (VI) affirm dismissal against the City and HRS, affirm the denial of dismissal against Sackett, and reverse dismissal against Clеmento. On the claims that we have reversed the trial court‘s dismissal, we direct that Johnson‘s complaint be reinstated on those allegations. We note that the counts in which we have reversed the dismissal are an example of an attempt to litigate matters in a motion to dismiss for failure to state a cause of action which the defendants could properly raise in a motion for summary judgment.
Affirmed in part, reversed in part, and remanded.
FRANK, A.C.J., and QUINCE, J., concur.
Notes
Section 768.28(9)(a), Florida Statutes (Supp. 1988), provides:
No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action fоr any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious рurpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or аgent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state оr its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.