RENE PURINSON, APPELLANT,
v.
THE ANTENNA SPECIALISTS COMPANY, A DIVISION OF ORION INDUSTRIES, INC., AND MEMBER OF THE ALLEN GROUP, INC., THE ALLEN GROUP, INC., AND ORION INDUSTRIES, INC., APPELLEES
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In a wrongful death action involving an alleged CB antenna defect, the trial court entered summary judgment for the defendant based on a finding of no duty to warn. The appellate court reversed, holding that material factual issues existed regarding the manufacturer's duty to warn and that the plaintiff was improperly denied the right to amend her complaint.
Summary judgment was premature and improper because material factual issues existed regarding the manufacturer's duty to warn that could not be resolved on summary judgment. The plaintiff must be given the opportunity to amend her complaint and file further affidavits.
[1] A summary judgment is premature when a plaintiff is deprived of the right to amend their complaint.
[2] A trial court errs by striking an expert witness affidavit in opposition to summary judgment without allowing an opportunity to amend.
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Join FLexlaw to unlock all legal intelligence“the plaintiff was deprived of a right to amend”
Establishes the core basis for reversal—the trial court improperly prevented the plaintiff from amending her complaint
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Join FLexlaw to unlock all legal intelligenceThe plaintiff's decedent was injured in circumstances involving the use of a CB antenna in close proximity to an electric power line. The defendant ma…
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PER CURIAM.
This is an appeal from a summary final judgment for the defendant in a wrongful death action. The plaintiff, as appellant here, urges that there is a genuine issue of material fact in that the defendant had a duty to warn the plaintiff’s decedent under the factual circumstances of the injury. The defendant as movant in the trial court and as appellee here relied upon an assertion that the defendant had no duty to warn of the dangers of using a CB antenna in close proximity to an electric power line. The judgment was entered upon the trial court’s holding that there was no duty to warn. We do not decide that issue, but hold that the judgment must be reversed because the plaintiff was deprived of a right to amend. Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980).
Here, the defendant filed an answer which denied the allegations of the complaint and moved for summary judgment. The trial judge struck the affidavit of plaintiff’s expert witness filed in opposition to summary judgment and entered summary judgment in favor of defendant. The court stated in the judgment that the basis therefor was this court’s holding in Ortiz v. Tandy, 378 So. 2d 1299 (Fla. 3d DCA 1979), and the case of Genaust v. Illinois Power Company, 62 Ill.2d 456, 343 N.E. 2d 465 (1976), cited in Ortiz, supra.1
It is apparent that the decision of the trial court was based exclusively upon the determination that under the facts alleged in the complaint there was no duty to warn plaintiff’s decedent of the danger which brought about his death. This may be correct or incorrect as the facts are developed in this case. Issues of fact were thus presented which were inappropriately disposed of on a motion for summary judgment. See Robinson v. Broward County School Board, 405 So. 2d 274 (Fla. 4th DCA, 1981).
We hold that summary judgment was premature and that plaintiff-appellant must be given the opportunity to amend the complaint and to file a further affidavit, if she so desires.2 Plyser v. Hados, supra. See also Stephens v. Dichtenmueller, 216 So. 2d 448 (Fla.1968).
Reversed and remanded for further proceedings.
. Genaust, supra, suggests that a duty to warn is not required where the possibility of injury results from a common propensity of a product which is open and obvious. However, that case, we feel, does not address the issue of a manufacturer’s duty to warn of an allegedly latent danger of electrocution from the use of an antenna where it may appear to the user that a particular portion of the antenna will not conduct electricity.
. Even where a summary judgment should be granted but it appears that the plaintiff may have a cause of action not pleaded, the proper procedure is to enter summary judgment but with leave to amend in that suit. Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1963); Dorset House Association, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979).
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Coudry v. City OF Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983)…uage is taken by analogy and adapted from paragraph 5 of the Fall-Down Negligence Complaint, Form 1.951, Forms for use with the Rules of Civil Procedure, approved by the Supreme Court, 265 So. 2d 21 at 42. . See Purinson v. Antenna Specialists Co., 408 So. 2d 617 (Fla. 3d DCA 1981), pet. den. 418 So. 2d 1278 (Fla.1982); First Nat. Bank of Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979); Dorset House Ass’n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979); Firestone Tire & Rubber Co. v. Thompson Air…
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Kala Invs., Inc. v. Sklar, 538 So. 2d 909 (Fla. 3d DCA 1989)…the record. See Hart Properties, Inc. v. Slack, 159 So. 2d 236 (Fla.1964) (where record indicates existence of valid cause of action or defense not pleaded, entry of summary judgment must be with leave to amend); Purinson v. Antenna Specialists Co., 408 So. 2d 617 (Fla. 3d DCA 1981) (same). See also West American Insurance Co. v. Yellow Cab Co., 495 So. 2d 204 (Fla. 5th DCA 1986) (judgment reversed to allow insurer to add cause of action for equitable subrogation where all the elements of subrogation were pre…
Authorities Cited
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Valerie v. Stephens, 216 So. 2d 448 (Fla. 1968)
- Plyser v. Demitri Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980)
- Dorset House Ass'n, Inc. v. Dorset, Inc., 371 So. 2d 541 (Fla. 3d DCA 1979)
- Certified Invs., Inc. v. Dadeland Nat'l Bank, 378 So. 2d 1299 (Fla. 3d DCA 1979)
- Terrell v. State, 405 So. 2d 274 (Fla. 4th DCA 1981)
- Robinson v. Broward Cnty. Sch. Bd., 405 So. 2d 274 (Fla. 4th DCA 1981)