ELISA A. WILLIS, A MINOR BY AND THROUGH HER FATHER AND NEXT FRIEND WENDELL WILLIS, SR., AND WENDELL WILLIS, SR., INDIVIDUALLY, APPELLANTS,
v.
DADE COUNTY SCHOOL BOARD, APPELLEE
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A student sued the Dade County School Board for damages under Florida's sovereign immunity waiver statute, alleging a physical education teacher negligently assaulted and battered her. The trial court dismissed all counts, but the appellate court reversed the dismissal of the negligent hiring/retention claim while affirming dismissal of the malicious assault count.
The court held that sovereign immunity bars claims for assault and battery when the employee acts maliciously or outside the scope of employment. However, the court held that sovereign immunity does not bar negligent hiring or retention claims because the actual filling of a teaching position is an operational function, not a planning function immune from suit.
[1] A state is immune from suit when a state employee did not act within the scope of employment or acted in bad faith or with malicious purpose.
[2] The actual filling of a teaching position is an operational function for which a county may be subject to liability, as distinguished from the creation of a teaching posi…
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Join FLexlaw to unlock all legal intelligence“state immune from suit when state employee did not act within scope of employment or acted in bad faith or with malicious purpose”
Establishes that malicious conduct by employees bars recovery under sovereign immunity
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Join FLexlaw to unlock all legal intelligenceElisa Willis, a minor, was allegedly physically assaulted and battered by a physical education teacher employed by the Dade County School Board during…
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FERGUSON, Judge.
Appellant Elisa Willis sued Dade County School Board for damages pursuant to Section 768.28, Florida Statutes (1979) waiving sovereign immunity in tort actions. In her amended complaint, Willis contends that a physical education teacher employed by the county maliciously assaulted and battered her during regular school hours and caused her injury. The trial court dismissed with prejudice Willis’ amended complaint for failure to state a cause of action. We affirm in part and reverse in part.
We find no error in the determination of the trial court with respect to Count I that a complaint which alleges a “malicious” assault and battery fails to state a cause of action pursuant to Section 768.28, Florida Statutes (1979). District School Board of Lake County v. Talmadge, 381 So. 2d 698 (Fla.1980) (state immune from suit when state employee did not act within scope of employment or acted in bad faith or with malicious purpose).
We find, however, that the trial court erred in dismissing with prejudice Count III of the amended complaint on the sole ground that the doctrine of sovereign immunity bars a cause of action against the school board for the negligent hiring or retention of the teacher.1 We reject appel-lee’s argument that the actual hiring of a teacher is a planning function for which the county is immune from suit, rather than an operational function for which the county may be subject to liability. See, e.g., Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979). Though the creation of a teaching position is a planning function, the actual filling of that position is operational. Cf. Hollis v. School Board of Leon County, 384 So. 2d 661 (Fla. 1st DCA 1980) (creation of plans to provide safe transportation was discretionary but implementation of plans was operational).
We hold, therefore, that the dismissal with prejudice of Count III of appellant’s amended complaint was error. Affirmed in part, reversed in part, and remanded for further proceedings.
. In order to state a cause of action for the tort of negligent hiring or retention recognized in Florida, see Mallory v. O’Neil, 69 So. 2d 313 (Fla.1954); Texas Skaggs, Inc. v. Joannides, 372 So. 2d 985 (Fla.2d DCA 1979), cert. denied, 381 So. 2d 767 (Fla.1980); Petrik v. New Hampshire Insurance Co., 379 So. 2d 1287 (Fla. 1st DCA 1979), cert. denied, 400 So. 2d 8 (Fla.1981), a plaintiff must allege facts showing that the employer was put on notice of the harmful propensities of the employee, see Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla.2d DCA 1980), rev. denied, 392 So. 2d 1374 (Fla.1981); DeJesus v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla.3d DCA 1980); Friedman v. Mutual Broadcasting System, Inc., 380 So. 2d 1313 (Fla.3d DCA 1980). We do not address this issue however, because it was neither considered below nor raised on appeal.
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Dickinson v. Marla E. Gonzalez, 839 So. 2d 709 (Fla. 3d DCA 2003)…o Seguine v. City of Miami, 627 So. 2d 14, 18 n. 2 (Fla. 3d DCA 1993). Similarly, there is no sovereign immunity barrier to making a claim against a governmental agency for negligent retention or supervision. See Willis v. Dade County School Board, 411 So. 2d 245, 246 (Fla. 3d DCA 1982). We therefore reject the Department’s arguments on this point. IV. The Department and Trooper Gipson both argue that Trooper Gipson’s internal affairs file should not have been introduced into evidence. Trooper Gipson argue…
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Storm v. The Town OF Ponce Inlet, 866 So. 2d 713 (Fla. 5th DCA 2004)…the duty upon private employers who hire, retain or supervise employees whose negligent or intentional acts in positions of employment can foreseeably cause injuries to third parties. 524 So. 2d at 1053. See also Willis v. Dade County School Board, 411 So. 2d 245 (Fla. 3d DCA), rev. denied, 418 So. 2d 1278 (Fla.1982). Based on the allegations of the complaint in this case, it appears this common law tort has been sufficiently stated. Storm alleged the Town’s employee, the chief building inspector, knowingly…
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Hambley v. State, 459 So. 2d 408 (Fla. 1st DCA 1984)…to the individual liability of the public employee, it nevertheless adhered to that portion of its decision regarding the state’s immunity where malice or bad faith is alleged. 417 So. 2d at 669, fn. 30; see also Willis v. Dade County School Board, 411 So. 2d 245 (Fla. 3d DCA 1982). . We disagree with appellees that Hambley could have pursued his remedy for his economic loss in this tort action'through chapter 120, Florida’s Administrative Procedure Act. Compare Winter Springs Development Corporation v. Flo…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- Mallory v. O'Neil, 69 So. 2d 313 (Fla. 1954)
- Dist. Sch. Bd. OF Lake Cnty. v. Talmadge, 381 So. 2d 698 (Fla. 1980)
- Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. 2d DCA 1980)
- Marsha Hollis for the Estate of Tiffany Helina Hollis v. The Sch. Bd. OF Leon Cnty., 384 So. 2d 661 (Fla. 1st DCA 1980)
- Tex. Skaggs, Inc. v. Joannides, 372 So. 2d 985 (Fla. 2d DCA 1979)
- Morton Friedman v. Mut. Broad. Sys., Inc., 380 So. 2d 1313 (Fla. 3d DCA 1980)
- Petrik v. NEW Hampshire Ins. Co., 379 So. 2d 1287 (Fla. 1st DCA 1979)
- DeJESUS v. Jefferson Stores, Inc., 383 So. 2d 274 (Fla. 3d DCA 1980)
- Walfish v. Walfish, 383 So. 2d 274 (Fla. 3d DCA 1980)