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Lemay v. Kondrk12/5/2003
ON MOTION FOR REHEARING
We grant appellee's motion for rehearing, withdraw our prior opinion and issue the following opinion in its place:
Sandra Lemay ["Lemay"], as Personal Representative of the Estate of Roy Ault, appeals the dismissal of her wrongful death claim against Michael Kondrk ["Kondrk"], a Putnam County Deputy Sheriff. We reverse.
In deciding whether the complaint states a cause of action, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader and accept as true all well-pleaded allegations. We must review such orders de novo. On review, we conclude that the complaint contains sufficient allegations to state a claim that meets the threshold for personal liability set forth in section 768.28(9)(a), Florida Statutes (1998).
REVERSED and REMANDED. SHARP, W., J., concurs. ORFINGER, J., dissents, with opinion.
ORFINGER, J., dissents.
I respectfully dissent. I believe the trial court correctly concluded that the amended complaint failed to allege any act on Kondrk's part that could be found to have been in bad faith or with malicious purpose or done in a manner exhibiting wanton and willful disregard of human rights, safety or property, as is required to avoid the qualified immunity afforded Kondrk pursuant to section 768.28(9)(a), Florida Statutes (1998). Lemay's amended complaint alleged that at about midnight on November 1, 1997, Ault drove to a Fast Track convenience store in rural Putnam County, purchased two twelve packs of beer and drove away. At approximately 3:00 a.m., Ault returned to the convenience store on foot, because his car had broken down. Ault, who was obviously intoxicated, purchased food and another beer, and then went to the store's outside pay phone to call for a ride.
Shortly thereafter, the store clerk called 911, seeking assistance. As Ault was trying to call family members for assistance, Deputy Kondrk arrived. Because it was dark, the exterior of the convenience store and its parking lot were lit. Ault was staggering, was obviously intoxicated, and had urinated in his pants, but had broken no laws. The store clerk had not asked Ault to leave the premises or requested that Kondrk order Ault to leave. Nonetheless, Kondrk ordered Ault and his companion to leave the parking lot. Ault, who was wearing dark clothing, complied, and left the parking lot, walking down Highway20,a two-lane unlit highway with no sidewalks or paved shoulders. A short time later, Ault returned to the Fast Track parking lot. Kondrk again ordered him to leave, and Ault again walked away down the dark highway. About forty minutes later, Ault was struck and fatally injured by a pickup truck, as he was walking in the traffic lane of Highway 20. Post-mortem tests showed that Ault had a blood alcohol level of 0.158.
Lemayinstituted a wrongful death complaint against Kondrk individually. The complaint alleged thatKondrk's actions demonstrated a wanton and willful disregard for Ault's rights and safety. Lemay alleged that Kondrk owed a duty not to place Ault in greater peril than he found him, not to create a substantial zone of risk, and not to subject Ault to an unreasonable risk of harm by creating and placing Ault in a dangerous and life threatening situation. On Kondrk's motion, the trial court dismissed the complaint, finding that it "fail to identify any action or conduct of Michael Kondrk which could be said to have been in bad faith and with malicious purpose or in a manner exhibiting wanton and willful disregard of Mr. Ault's rights."
As an employee of a state subdivision, Kondrk enjoys qualified immunity from suit and li
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