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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 MIAMI-DADE COUNTY, ** Appellant, ** vs. ** DENIS CARDOSO, ** Appellee. CASE NO. 3D05-313 ** LOWER TRIBUNAL NO. 00-23667 ** Opinion filed February 15, 2006. An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Murray A. Greenberg, Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellant. Michael Garcia Petit, for appellee. Before WELLS and CORTIÃ AS, JJ., and SCHWARTZ, Senior Judge. CORTIÃ AS, Judge. Between ( Cardoso ) September was arrested 1996 by and July various 1999, police Denis Cardoso officers eighteen (18) times for peddling flowers out of his truck near a cemetery in Miami, Florida. It is undisputed that Cardoso had a peddler s license since 1988, but did not have a certificate of use and occupancy. Cardoso ( County ), and/or filed a asserting imprisonment, supervision, liability. 1 and complaint eighteen one one (18) count count against of based Miami-Dade counts of negligent upon 43 County false arrest training U.S.C. § and 1983 After trial, the jury returned a verdict in favor of Cardoso and awarded him $77,222 as to the negligent supervision and training calculating claim, Cardoso s which was comparative reduced to negligence. $55,599.84 The jury after also returned a verdict in favor of Cardoso on eight (8) of his false arrest and/or imprisonment claims, awarding him a total $22,000 for those claims. The County filed a motion for judgment notwithstanding the verdict, which the trial court ultimately denied. The trial court entered a final judgment in favor of Cardoso in the total amount of $77,599.84. $5,000 as taxable costs. The trial court also awarded Cardoso The County appeals from (1) the final 1 The County removed the case to federal district court. While the case was in the federal court, Cardoso filed an amended complaint. The County filed a motion for summary judgment in the federal court as to the § 1983 count, which the federal district court granted. The Eleventh Circuit Court of Appeals affirmed and remanded the false arrest and negligence claims to state court. Cardoso v. Miami-Dade County, 54 F. App x. 685, (11th Cir. 2002). 2 judgment awarding Cardoso $77,599.84, (2) the order granting Cardoso $5,000 as taxable costs, and (3) the order denying the County s motion for new trial and/or motion for judgment notwithstanding the verdict. As one of its main contentions on appeal, the County claims that the trial court erred in awarding Cardoso damages based on negligence, as he failed to show impact or physical injury. Based on relating the impact to Cardoso s supervision. rule, we reverse count for the award negligent for damages training and See R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995); School Bd. Of Miami-Dade County, Florida v. Trujillo, 906 So. 2d 1109 (Fla. 3d DCA 2005); Ruttger Hotel Corp. v. Wagner, 691 So. 2d 1177 (Fla. 3d DCA 1997); Jordan v. Equity Props. and Dev. Co., 661 So. 2d 1307 (Fla. 3d DCA 1995). Since we have negligence, vacated which may the have jury s damage affected the award jury s relating to award for Cardoso s false arrest claims, we remand for a new trial on damages only as to Cardoso s eight (8) successful false arrest and/or imprisonment claims. We affirm the trial court s rulings on all other issues on appeal. Reversed and remanded in part; affirmed in part. WELLS, J., concurs. 3 MIAMI-DADE COUNTY vs. CARDOSO CASE NO. 3D05-313 SCHWARTZ, Senior Judge (specially concurring). While I agree with the result, I would not base the elimination of the $77,222 award on the impact doctrine, the applicability of which is - at best, and to say the least highly problematic. See Rowell v. Holt, 850 So. 2d 474, 478 n.1 (Fla. 2003); Holt v. Rowell, 798 So. 2d 767, 772 n.3 (Fla. 2d DCA 2001), approved in part and quashed in part, 850 So. 2d 474 (Fla. 2003). Instead, I believe that the award is unsustainable because negligent training is not, as a matter of law, a distinct theory of liability for compensatory damages which can form the basis of a separate award. See Muzzio v. Auto-Owners Ins. Co., 799 So. 2d 272, 274-75 (Fla. 2d DCA 2001), review denied, 817 So. 2d 848 (Fla. 2002); Petrik v. New Hampshire Ins. Co., 379 So. 2d 1287, 1289 (Fla. 1st DCA 1979), cert. denied, 400 So. 2d 8 (Fla. 1981); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1977). In this context, such evidence may only serve to support the vicarious or derivative liability of an employer when the active tortfeasor is either not liable or is acting beyond the scope of his employment. is admitted both that the police In this case, in which it officers were actually responsible for the alleged false arrests and that they were 4 acting in the course of their employment, the negligent training theory served no legal submitted to the jury. purpose and should not have been Petrik, 379 So. 2d at 1289; Clooney, 352 So. 2d at 1220. 5

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