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Florida First DCA rules that Sheriff’s no fraternization policy for corrections officers and inmates did not create “zone of risk” triggering Sheriff’s tort liability for alleged sexual harassment by corrections officer against former inmate living with officer while on probation

On October 13, 2021, in Lee v. Harper, et al., No. 1D20-2772, the Florida First DCA affirmed a trial court dismissing a plaintiff’s claims for negligence and negligent supervision against the Sheriff of Madison County in his official capacity. The female plaintiff had been incarcerated at the Madison County Jail, and upon her release to probation, she accepted a male corrections officer’s offer to have her live with him in his apartment. The corrections officer obtained an exemption from the department’s “no fraternization” policy from the deputy chief. The plaintiff claimed that the officer subsequently made sexual advances and touched her without her consent while they were living together. The trial court dismissed the case after determining that the Sheriff did not owe a legal duty to the plaintiff after her release from the county jail.The First DCA focused on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others, noting that the defendant’s conduct must create the risk,or control the situation, before liability may be imposed and a legal duty does not exist merely because the harm in question was foreseeable. The First DCA cited and relied upon McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992),Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA 2004), and Jordan v. Nienhuis, 203 So. 3d 974, 978 (Fla. 5th DCA 2016). The First DCA concluded that the internal “no fraternization” policy did not itself create a legal duty of care to the plaintiff, citing Pollock v. Fla. Dep’t. ofHighway Patrol, 882 So. 2d 928, 936–37 (Fla. 2004) (“[W]ritten agency protocols, procedures, and manuals do not create an independent duty of care”). The Court distinguished other cases in which a duty of care had been found to exist following an assertion of police authority. See Henderson v. Bowden, 737 So. 2d 532, 533–34 (Fla. 1999) (officers allowed intoxicated driver to leave scene); Kaisner v. Kolb, 543 So. 2d 732, 733 (Fla. 1989) (officers were liable for injuries plaintiff incurred while being detained on side of road for expired inspection sticker). The First DCA also concluded that the plaintiff’s negligent supervision complaint was deficient for failure to allege that the Sheriff had actual or constructive notice of an issue with the correction officer’s unfitness, noting that the plaintiff never advised the Sheriff of the harassment.