MIRIAM DONNER, APPELLANT,
v.
VERNON HETHERINGTON, THE CITY OF MIAMI, A MUNICIPAL CORPORATION UNDER THE LAWS OF THE STATE OF FLORIDA, METROPOLITAN DADE COUNTY, ADMIRAL INSURANCE COMPANY, DALE LUCAS, JANET MCCARDEL, LUDVIK V. ZAPLETAL, RICHARD MCPHERSON, ELIZABETH SMITH, EVELYN WILLIAMS WALDEN AND APPALACHIAN INSURANCE COMPANY, APPELLEES
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Miriam Donner appealed a summary judgment granted in favor of Janet McCardel, a Dade County jail supervisor, regarding alleged constitutional violations and negligence stemming from Donner's confinement in a stripped safety cell. The court held that summary judgment was improperly entered because McCardel failed to conclusively demonstrate she was not guilty of simple negligence within the scope of her employment.
Summary judgment was improperly entered for McCardel because she failed to conclusively demonstrate that she was not guilty of simple negligence within the scope of her employment, and therefore the case must proceed to trial on the negligence claim.
[1] A public employee may be sued for negligent acts occurring within the scope of their employment under Section 768.28(9), Florida Statutes.
[2] Summary judgment is improper when a defendant fails to conclusively demonstrate they were not guilty of simple negligence.
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Join FLexlaw to unlock all legal intelligence“We hold that summary judgment was improperly entered in McCardel's favor.”
The court's central holding that the lower court erred in granting summary judgment because McCardel did not conclusively demonstrate absence of negligence.
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Join FLexlaw to unlock all legal intelligenceOn April 10, 1975, Donner was arrested and taken to the Dade County women's jail. Following an incident during admission, jail personnel ordered her s…
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SCHWARTZ, Judge.
The plaintiff-appellant sued numerous defendants for damages arising out of her having been arrested and thereafter incarcerated in the “women’s annex” of the Dade County Jail. This appeal concerns only a summary judgment rendered below for one of the defendants, Janet McCardel, a Dade County employee who was then the supervisor of the annex.
The record shows that, after her arrest on April 10, 1975, the plaintiff was taken to the women’s prison. As a result of an incident which occurred during the admission process, she was, supposedly for her own protection, ordered by subsidiary jail personnel to be stripped naked and placed in a so-called “safety cell.” The cell, in which Ms. Donner was confined until her release into the general population of the jail on April 15, 1975, was not heated, contained nothing but a mattress core, and was equipped only with an inoperable toilet.
Moreover, she alleged, she was given no medical or psychiatric attention during the entire period. The asserted liability of Dr. McCardel for this conduct was based primarily upon her review and approval of an “incident report” from those who dealt directly with Ms. Donner. The report allegedly brought the conditions under which the plaintiff was confined directly to McCardel’s attention and showed on its face that there was nothing to justify that treatment. It is contended that Dr. McCardel’s at least tacit approval of Ms. Donner’s continued imprisonment in the safety cell, as it was equipped, and without medical evaluation, was contrary to the requirements of several Dade County regulations, to Florida statutory provisions, Sections 944.34, 944.35, Florida Statutes (1975), and to those portions of the Florida and United States Constitutions which forbid the imposition of “cruel and unusual punishment.”
We hold that summary judgment was improperly entered in McCardel’s favor.1 In Paul v. Heritage Ins. Co. of Amer ica, 363 So. 2d 563 (Fla. 3d DCA 1978), following Talmadge v. District School Board of Lake County, 355 So. 2d 502 (Fla. 2d DCA 1978), we interpreted Sec. 768.28(9), Florida Statutes (1977) to permit the maintenance of an action against a public employee “as a result of negligent acts occurring within the scope of his employment.” 363 So. 2d, at 564. It is clear that McCardel did not conclusively demonstrate that she was not guilty of simple negligence and that she was. under this holding, therefore not responsible for the allegedly improper treatment accorded the plaintiff.2 The summary judgment therefore cannot be permitted to stand. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977); Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Swenson v. Cahoon, 111 Fla. 788, 152 So. 203 (1934); McCray v. Burrell, 516 F. 2d 357 (4th Cir. 1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976).
Reversed and remanded.
. We reject the appellant’s contention that she was entitled to summary judgment in her favor against Dr. McCardel.
. We do not reach the question of whether there was also a triable issue that McCardel “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and wilful disregard of human rights, safety, or property.” This would be the pertinent test under Sec. 768.28(9) should the supreme court reverse Tal-madge v. District School Board of Lake County, supra, which is now before it on certiorari granted, and follow the contrary case of Dade County v. Kelly, 348 So. 2d 49 (Fla. 1st DCA 1977), which we rejected in Paul v. Heritage Ins. Co. of America, supra.
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Citator
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Dist. Sch. Bd. OF Lake Cnty. v. Talmadge, 381 So. 2d 698 (Fla. 1980)…ENGLAND, Chief Justice. We here interpret one aspect of the state’s waiver of sovereign immunity statute, against a background of conflicting district court decisions. Donner v. Hether-ington, 370 So. 2d 1225 (Fla. 3d DCA 1979); Talmadge v. District School Board, 355 So. 2d 502 (Fla. 2d DCA 1978); Paul v. Heritage Insurance Co. of America, 363 So. 2d 563 (Fla. 3d DCA 1978); Metropolitan Dade County v. Kelly, 348 So. 2d 49 (Fla. 1st DCA 1977); Pennington…1 / 2
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Donner v. Hetherington, 399 So. 2d 1011 (Fla. 3d DCA 1981)…339 So. 2d 641 (Fla.1976); Ciccarelli v. City of Key West, 321 So. 2d 472 (Fla. 3d DCA 1975). Accordingly, the judgment below is reversed for still another trial as against the present appellees. Reversed and remanded. . Donner v. Hetherington, 370 So. 2d 1225 (Fla. 3d DCA 1979) reversed a summary judgment entered in favor of the director of the facility where the plaintiff was taken and confined. . The case against the remaining defendants— who were involved in the plaintiffs subsequent imprisonment…
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Donner v. Appalachian Ins. Co., 580 So. 2d 797 (Fla. 3d DCA 1991)…ial of this cause will occur before this litigation assumes such Dickensian proportions. Affirmed. . See Donner v. Hetherington, 399 So. 2d 1011 (Fla. 3d DCA 1981); Donner v. Hetherington, 376 So. 2d 404 (Fla. 3d DCA 1979); Donner v. Hetherington, 370 So. 2d 1225 (Fla. 3d DCA 1979). . See Edelstein v. Donner, 450 So. 2d 562 (Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla.1985); Donner v. Edelstein, 425 So. 2d 1220 (Fla. 3d DCA 1983); Donner v. Edelstein, 423 So. 2d 367 (Fla. 3d DCA 1982); Donner v. Edelste…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Burrell v. McCRAY, 426 U.S. 471 (U.S. 1976)
- McCRAY v. Burrell, 516 F.2d 357 (4th Cir. 1975)
- Clore v. Ira S. Drebach, 111 Fla. 788 (Fla. 1933)
- Swenson v. Cahoon, 111 Fla. 788 (Fla. 1933)
- Metro. Dade Cnty. v. Kelly, 348 So. 2d 49 (Fla. 1st DCA 1977)
- Talmadge v. Dist. Sch. Bd. OF Lake Cnty., 355 So. 2d 502 (Fla. 2d DCA 1978)
- Paul v. Heritage Ins. Co. OF Am., 363 So. 2d 563 (Fla. 3d DCA 1978)