VIRGINIA M. HERNANDEZ CONVINGTON, District Judge.
This cause is before the Court pursuant to Defendant School Board of Manatee County's ("School Board") Motion to Dismiss Counts II and V of the Plaintiffs' Amended Complaint filed on October 20, 2014. (Doc. # 17). Plaintiffs, DK and Alice Kaddatz, filed a response in opposition to the Motion on October 27, 2014. (Doc. # 19). Upon due consideration, and for the reasons stated below, the Court grants in part and denies in part the School Board's Motion.
On September 17, 2014, DK and Kaddatz initiated an action against the School Board alleging negligence, vicarious liability, violation of Title IX, 20 U.S.C. § 1681, et. seq., loss of filial consortium, and negligent infliction of emotional distress. (Doc. # 2). Subsequently, on September 24, 2014, the School Board filed its Answer and Affirmative Defenses and Motion to Dismiss the Complaint. (Doc. ## 4-5). On October 1, 2014, DK and Kaddatz filed an Amended Complaint and demand for jury trial, which rendered the School Board's Motion to Dismiss moot. (Doc. # 9). Thereafter, on October 20, 2014, the School Board filed the present Motion, arguing that: (1) DK and Kaddatz fail to state a cause of action for vicarious liability; and (2) DK and Kaddatz fail to state a cause of action for negligent infliction of emotional distress (Doc. # 17). DK and Kaddatz responded in opposition to the Motion on October 27, 2014. (Doc. # 19).
On a motion to dismiss, this Court accepts as true all of the factual allegations in the complaint and construes them in the light most favorable to the plaintiff.
However, the Supreme Court explains that:
The School Board contends that DK and Kaddatz have not sufficiently pled factual allegations establishing that the School Board is ". . . vicariously liable for the sexual and physical abuse by Roderick Frazier." (Doc. # 17). In order to establish a claim for vicarious liability, DK and Kaddatz must allege that "the employee committed the negligent act:
(1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer."
As DK and Kaddatz note in their response to the Motion, "`Generally, sexual assaults and batteries by employees are held to be outside the scope of an employee's employment and, therefore, insufficient to impose vicarious liability on the employer.'"
Based on the allegations in the Amended Complaint, and because vicarious liability claims are a fact intensive inquiry, this issue is more appropriately addressed at the summary judgment stage.
(Doc. # 9 at 6). Taking the allegations in the Amended Complaint as true, as it must, this Court agrees with DK and Kaddatz that the actions of Frazier "in issuing the discipline referrals pursuant to his authority as Parent Liaison" was an act done in the course and scope of his employment. (Doc. # 19 at 4). Therefore, this claim survives the School Board's Motion to Dismiss.
The School Board argues that "it is well established under Florida law that there is no cause of action for emotional distress damages arising from simple negligence unless certain prerequisites are met." (Doc. # 17 at 3)(citing
In Florida, claims for negligent infliction of emotional distress are governed by the "impact rule" designed to assure the validity of claims for emotional distress.
Though the Court recognizes exceptions to the impact rule, these exceptions arise in extraordinary circumstances where "the foreseeability and gravity of the emotional injury involved, and the lack of countervailing policy concerns, have surmounted the policy rational undergoing application of the impact rule."
Kaddatz responds that she acknowledges that Florida law "requires the plaintiff to see, hear or arrive on the scene of the misconduct to state a claim for negligent infliction of emotional distress." (Doc. # 19 at 6). Kaddatz also requests that any dismissal of Count V be without prejudice so that Kaddatz can reallege this cause of action pending the Florida Supreme Court's ruling on the issue of an exception to the impact rule in the circumstances outlined above. (
Upon due consideration of the well-pleaded allegations of DK and Kaddatz's Amended Complaint, which the Court must accept as true at this point in time, the Court determines that it is appropriate to deny the School Board's 12(b)(6) Motion as to Count II and grant the Motion as to Count V.
Accordingly, it is