CHARLES WILLIAMS v. GREGORY TONY, as Sheriff of Broward County

C
       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          CHARLES WILLIAMS,
                              Appellant,

                                     v.

    GREGORY TONY, as Sheriff of Broward County Florida, ARMOR
          CORRECTIONAL HEALTH SERVICES, INC.,
                  and WANDA LOWES, R.N.,
                           Appellees.

                              No. 4D20-1342

                              [May 5, 2021]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol Lisa Phillips, Judge; L.T. Case No. CACE
14-023944 (25).

  Joseph M. Pustizzi of the Law Office of Joseph Pustizzi, P.A., Hollywood,
and Gregory Durden of Gregory Durden, P.A., Fort Lauderdale, for
appellant.

  Geoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for
appellee Sheriff Gregory Tony.

  Louis Reinstein of Kelley Kronenberg, Fort Lauderdale, for appellees
Armor Correctional Health Services, Inc., and Wanda Lowes, R.N.

DAMOORGIAN, J.

   Charles Williams (“Appellant”) appeals the trial court’s final judgment
dismissing his second amended complaint with prejudice, which alleged
negligence and excessive use of force against Gregory Tony, as Sheriff of
Broward County (“Sheriff”), negligence against Armor Correctional Health
Services, Inc. (“Armor”), and medical negligence against Wanda Lowes,
R.N. (“Nurse”) (collectively “Appellees”). All of Appellant’s counts against
Appellees stemmed from an alleged beating that he sustained at the hands
of Broward County Sheriff’s Office (“BSO”) detention officers while an
inmate at the Broward County Jail.
    On appeal, Appellant argues that the trial court erred in dismissing his
lawsuit with prejudice because the complaint contained sufficient
allegations to state causes of actions against Appellees. Alternatively,
Appellant argues that the trial court should have granted him leave to
amend the complaint. We affirm the dismissal of the medical negligence
count against Nurse without further comment. For the reasons discussed
below, we reverse the dismissal of the negligence count against Sheriff 1
and affirm the dismissal of the negligence count against Armor.

   The following allegations in the complaint are relevant to our decision.
Appellant alleged he suffered from schizophrenia and had a long history of
mental illness. He was arrested for trespass and taken to the Broward
County Jail. Armor provided inmate medical services for BSO at the jail.
Nurse, who was employed with Armor, performed Appellant’s medical
intake. Despite noting that Appellant was rude, defiant, and had poor eye
contact, Nurse did not perform a mental illness evaluation.

    A few weeks later, while still in custody, Appellant brought food from
the dining area into his cell in violation of the jail’s policy. During a routine
search of his cell, detention officers found the food and advised Appellant
it was not allowed; however, Appellant was unable to comprehend why he
could not have food in his cell. After detention officers repeatedly tried to
explain to Appellant that he was not allowed to have food in his cell,
Appellant jumped off his bunk and clenched his fists while facing the
detention officers. The detention officers restrained Appellant with such
force that he lost consciousness and suffered serious injuries, including
“head trauma, periorbital bruises, swelling of the left eye, various facial
lacerations, and a fractured orbital bone.”

   Appellant filed suit against Sheriff, Armor, and Nurse and subsequently
amended his complaint. Relevant to this appeal, the second amended
complaint (“the complaint”) alleged causes of actions for negligence against
Sheriff and Armor. Appellees ultimately moved to dismiss the complaint
with prejudice for failure to state a cause of action, which the trial court


1   Although the complaint also included a claim for excessive use of force against
Sheriff, Appellant presents no argument on appeal challenging the trial court’s
dismissal of that count. Thus, Appellant is deemed to have abandoned that issue
and this Court will not address the dismissal of the excessive use of force count.
See Prince v. State, 

40 So. 3d 11

, 13 (Fla. 4th DCA 2010) (“An appellant who
presents no argument as to why a trial court’s ruling is incorrect on an issue has
abandoned the issue . . . .”); Anheuser-Busch Cos. v. Staples, 125 So 3d 309, 312
(Fla. 1st DCA 2013) (appellate court concluding that it was “not at liberty to
address issues that were not raised by the parties”).

                                        2
granted. At no point in time did Appellant seek leave to amend the
complaint for the third time. This appeal follows.

    We first address the issue of whether the facts alleged in the complaint,
which we are bound to accept as true, sufficiently stated causes of actions
for negligence against Sheriff and Armor. Mitleider v. Brier Grieves Agency,
Inc., 

53 So. 3d 410

, 412 (Fla. 4th DCA 2011).

    Starting with the negligence count against Sheriff, the complaint
alleged:

   •   Sheriff “and his deputies owe a duty to use reasonable care for the
       safety of persons while incarcerated[,]” which “applies to the inmates
       being safe from mistreatment of correctional officers.”

   •   Sheriff and his deputies owed a duty to use reasonable care for the
       safety of those incarcerated and cited Sheriff’s Use of Force Policy,
       which provides:

             It is the policy of the Department of Detention to
             establish procedures for the application of force, when
             necessary, to protect staff, others, property, and the
             prevention of escapes in accordance with appropriate
             statutes regarding use of force. The use of force will not
             be for the purpose of corporal punishment, personal
             abuse, or harassment. A written report is required
             immediately following the use of force. All security staff
             will be trained in the DOD Use of Force policy.

   •   Sheriff “has a policy against detention officers’ use of force
       objectively unreasonable under the circumstances” and “[t]he
       actions of the detention officers [were] unreasonable and
       unnecessary because [Appellant] presented no harm to the
       detention officers.”

   •   The “detention officers” breached their duty “by applying such force
       that was unreasonable under the circumstances,” and that breach
       caused Appellant to suffer severe injuries.

   The courts of this state have long recognized that law enforcement owes
a duty of care for the safety of those persons taken into custody.
See Henderson v. Bowden, 

737 So. 2d 532

, 538–39 (Fla. 1999) (“A person
taken into custody . . . is owed a common law duty of care. Numerous


                                      3
cases have recognized that this duty of exercising reasonable care exists
and that it is an operational level function.” (citations and internal
quotation marks omitted)); Dep’t of Health & Rehab. Servs. v. Whaley,

574 So. 2d 100

, 103 (Fla. 1991) (reiterating that “[a] person taken into
custody . . . is owed a common law duty of care” (citation and internal
quotation marks omitted)); Hutchinson v. Miller, 

548 So. 2d 883

, 885
(Fla. 5th DCA 1989) (“Clearly, the sheriff and his deputies owed the
decedent the duty to use reasonable care for his safety while he was
incarcerated.”). On this point, although Sheriff argues the written agency
procedures do not create an independent duty of care and that Appellant
did not sufficiently plead facts for a cause of action for negligence, he
concedes that he has a common law duty to use reasonable care for the
safety of inmates.

   We hold Appellant alleged an independent, common law duty of
reasonable care by Sheriff and the detention officers charged with his
supervision. Although Appellant’s negligence count did reference Sheriff’s
use of force policy, Appellant’s complaint stated a cause of action against
Sheriff for negligently failing to fulfill its independent duty of care because
the detention officers allegedly used excessive force. See Kelley v. Rice,

670 So. 2d 1094

, 1095–97 (Fla. 2d DCA 1996) (concluding “that [plaintiff]
has sufficiently asserted a cause of action for [the sheriff’s] alleged simple
negligence in carrying out his custodial duties to survive a motion to
dismiss” where sheriff failed “to see that [plaintiff] was furnished medical
care” while in jail); 

Hutchinson, 548 So. 2d at 885

(“Whether the [sheriff
and his deputies] were negligent in failing to protect the decedent, and
whether the harm which befell him, albeit at his own hand, was within the
scope of such negligent conduct so as to make such harm reasonably
foreseeable under the facts here, are issues for the trier of fact.”).

    Having determined that there was potential tort liability, we turn to
whether sovereign immunity bars this action. Appellant’s allegations bring
into question Sheriff’s breach of performance of custodial duties and
obligations to Appellant as an inmate. Thus, Appellant’s allegations
appear to be regarding Sheriff’s “negligence in performance of established
duties, and for failure to follow the policies already established. These are
operational level activities and sovereign immunity does not bar this
action.” 

Hutchinson, 548 So. 2d at 886

; see also Harris v. Monds, 

696 So.
2d

446, 446 (Fla. 4th DCA 1997) (holding that the common law duty of
reasonable care by the correction officers charged with inmate supervision
“is an operational level function not protected by sovereign immunity”);
Ferguson v. Perry, 

593 So. 2d 273

, 278 (Fla. 5th DCA 1992) (holding that
“[t]he alleged negligent failure to comply with the duty to provide medical


                                      4
care to [person in custody] is an operational level activity for which the
sheriff is not immune from suit”).

    Thus, as the complaint alleged facts sufficient to state a cause of action
for negligence against Sheriff, and as sovereign immunity does not apply,
we reverse the dismissal of the negligence count against Sheriff and
remand for further proceedings.

   Turning to the negligence count against Armor, the complaint alleged:

       •   Armor and Sheriff had a medical services contract that “was for
           the benefit of third party inmates, such as [Appellant].”

       •   Armor and Sheriff’s contract imposed duties on Armor to “ensure
           adequate training of jail medical personnel and detention
           officers, develop policies, procedures, and protocols for mental
           health, and provide qualified personnel to conduct, supervise,
           and review intake screenings to determine whether further
           evaluation is necessary.”

       •   Armor breached its duty “by failing to provide qualified
           personnel to conduct, supervise, and review intake screenings
           and failed to provide mental health training to jail personnel and
           detention officers.”

The contract between Armor and Sheriff, which was attached as an exhibit
to the complaint, provides in relevant part:

      I. NO THIRD PARTY BENEFICIARIES

      This Agreement is for the benefit of the parties hereto, and is
      not entered into for the benefit of any other person or entity,
      including but not limited to Inmates.         Nothing in this
      Agreement shall be deemed or construed to create or confer
      any benefit, right or cause of action for any third party or
      entity.

    “To claim the protection of [a] contract, [a party] must establish it was
an intended third-party beneficiary of it.” Esposito v. True Color Enters.
Constr., Inc., 

45 So. 3d 554

, 555 (Fla. 4th DCA 2010). The reason being
that “[a] person who is not a party to a contract may not sue” to enforce
its terms “where that person receives only an incidental or consequential
benefit from the contract.” Caretta Trucking, Inc. v. Cheoy Lee Shipyards,
Ltd., 

647 So. 2d 1028

, 1030–31 (Fla. 4th DCA 1994). “A party is an

                                      5
intended beneficiary only if the parties to the contract clearly express, or
the contract itself expresses, an intent to primarily and directly benefit the
third party or a class of persons to which that party claims to belong.”


Id. at 1031.

   Here, the contract between Armor and Sheriff, which was attached to
the complaint, clearly provides that it creates no right or cause of action
to a third-party. See Haslett v. Broward Health Imperial Point Med. Ctr.,

197 So. 3d 124

, 127 (Fla. 4th DCA 2016) (“Where the exhibits negate the
cause of action asserted, they must control.”); Hoffman v. Boyd, 

698 So.
2d

346, 349 (Fla. 4th DCA 1997) (“The plain language of the written
contracts attached as an exhibit to the complaint would control over any
contrary allegations in any subsequent amended complaint.”).
Nonetheless, Appellant now maintains his “claim is not contingent on the
existence of a contract or status as a third party beneficiary” and “Armor
owed Appellant the requisite duty of care” in providing service upon his
intake into the jail. However, a plain reading of the allegations establishing
Armor’s duty are expressly based upon Armor’s contractual obligations to
Sheriff. Accordingly, the trial court correctly determined that Appellant
was not an intended beneficiary under the contract and, therefore,
Appellant’s claim of negligence arising out of a breach of Armor’s
contractual obligations to Sheriff failed to establish a claim against Armor.
See Weimar v. Yacht Club Point Est., Inc., 

223 So. 2d 100

, 103 (Fla. 4th
DCA 1969) (holding that when “there are no allegations of a breach of a
duty apart or independent from the contract, privity of contract must exist
between the person charged with the negligence and the person who has
been injured by such breach”).

   We next address Appellant’s alternative argument that, in the event the
complaint failed to allege sufficient facts, the trial court should have
granted him leave to amend the second amended complaint. Appellees
counter that Appellant waived any claim that he was entitled to amend his
complaint for a third time because he failed to request leave to amend
before or after the court dismissed the complaint. We agree with Appellees.

   This court has consistently held that “a party who does not seek to
amend in the trial court cannot raise the issue of amendment for the first
time on appeal.” See Stander v. Dispoz-O-Prods., Inc., 

973 So. 2d 603

, 605
(Fla. 4th DCA 2008) (holding that the plaintiff waived the right to challenge
the dismissal with prejudice because, when the trial court orally
“announced that it was dismissing with prejudice,” the plaintiff merely
responded “Thank you, your Honor” and “did not request leave to amend
the complaint, nor did plaintiff move for rehearing to amend after the order
of dismissal was entered”); Lutz v. Protective Life Ins. Co., 

951 So. 2d 884

,

                                      6
888 (Fla. 4th DCA 2007) (declining to address the merits of appellant’s
argument that he should have been afforded the opportunity to amend his
complaint because the argument was raised for the first time on appeal);
Merkle v. Health Options, Inc., 

940 So. 2d 1190

, 1198 (Fla. 4th DCA 2006)
(“Failure to seek leave of court or written consent of [the] adverse party to
amend [a] complaint prior to dismissal with prejudice and failure to then
move for a rehearing requesting leave to amend, precludes raising [the]
issue for [the] first time on appeal.” (alterations in original) (quoting
Johnson v. RCA Corp., 

395 So. 2d 1262

, 1263 (Fla. 3d DCA 1981))); RHS
Corp. v. City of Boynton Beach, 

736 So. 2d 1211

, 1213 n.2 (Fla. 4th DCA
1999) (noting that the issue of dismissal of claim with prejudice was not
preserved because the record did not disclose that appellant ever
requested leave to amend). Thus, by failing to petition the trial court for
leave to amend his complaint and obtain a ruling, Appellant waived any
right to petition this Court to grant him such relief.

   Affirmed in part, reversed in part, and remanded.

WARNER AND MAY, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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