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Mosby v. Harrell6/23/2005
The appellant challenges the trial court's dismissal with prejudice of three counts of his complaint for failure to state a cause of action against the Florida Department of Law Enforcement (FDLE) upon the trial court's determination that sovereign immunity insulates FDLE from liability in connection with negligent DNA testing and reporting by an FDLE employee and in connection with FDLE's negligent training and supervision of the employee. Because a cause of action against a private individual or business employer would exist as to the claims of negligent testing and reporting in the circumstances alleged in the complaint, and because these testing and reporting activities do not implicate "discretionary" level functions for which FDLE enjoys immunity from liability for its negligence, we reverse the trial court's dismissal of counts I (negligent testing) and III (negligent reporting) of the appellant's complaint. We recognize that count V of the appellant's complaint does not state a cause of action for negligent training and supervision, but because sovereign immunity does not necessarily preclude a cause of action against the state or its subsidiaries for negligent training and supervision, and because it does not clearly appear that an additional effort by the appellant to state a cause of action on these theories would be futile, we conclude that the trial court's with-prejudice dismissal of count V of the complaint was improper.
As the factual foundation for its ruling on a motion to dismiss a complaint for failure to state a cause of action, a court may consider only the factual allegations set forth in the complaint, must accept those allegations as true, and must resolve in the plaintiff's favor all inferences that might be drawn from those allegations. Gowan v. Bay County, 744 So. 2d 1136 (Fla. 1st DCA 1999); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297 (Fla. 1st DCA 1999). Determination of whether a complaint sufficiently states a cause of action is an issue of law. Accordingly, a trial court's ruling on a motion to dismiss for failure to state a cause of action is subject to de novo review. Townsend.
The factual allegations in the complaint that are material to this appeal may be summarized as follows: The appellant was a police officer with the Ocala Police Department when a woman reported that the appellant had forced her to submit to a sexual relationship. Following the woman's report, DNA evidence was collected from her residence and submitted to FDLE's Tallahassee lab for testing. FDLE negligently trained and supervised the FDLE employee who conducted the DNA testing and reported the results to the appellant's employer . The testing was negligently performed by the FDLE employee , who then negligently and incorrectly reported to the Ocala Police Department that the appellant was the source of the DNA evidence. As a consequence of this negligent training, supervision, testing, and reporting, the appellant suffered various damages, including loss of wages and benefits following termination of his employment as a police officer.
The state and its subsidiaries are generally immune from tort liability, but pursuant to authority contained in article X, section 13, of the Florida Constitution, this general tort immunity has been waived by section 768.28(1), Florida Statutes, "under circumstances in which the state or agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of the state." Although this statutory language evinces a legislative intent to waive sovereign immunity on a broad basis, constitutional separation-of-powers considerations require that certain discretionary or plann
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