JANIS BARROW AND T. D. BARROW, HER HUSBAND, APPELLANTS,
v.
MARGARETE L. CURTIS, AND FLORIDA EAST COAST RAILWAY COMPANY, A CORPORATION, APPELLEES
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Plaintiffs appealed dismissal of their negligence complaint against a railroad company and the striking of a derivative claim for medical expenses. The court affirmed both dismissals, holding that the complaint failed to allege sufficient facts showing the railroad created a foreseeable and proximate cause of injury unbroken by third-party negligence.
The complaint failed to state a cause of action against the railroad because it did not allege facts showing the railroad created a condition that was the foreseeable and proximate cause of injury unbroken by third-party negligence. T.D. Barrow's loss of consortium claim was properly abandoned because he married Janis after the injury, and his medical expense claim was not demonstrated to constitute prejudicial error.
“the complaint did not contain allegations of fact tending to show that the railroad company created a condition which was the foreseeable and proximate cause of injury to Janis Barrow unbroken by the negligence of any third party”
Establishes the standard for stating a negligence cause of action and explains why the complaint was properly dismissed.
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Join FLexlaw to unlock all legal intelligenceJanis Barrow was injured when another motorist, Margarete Curtis, became frightened by a nearby train and ran her vehicle into Barrow's car. Barrow su…
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The plaintiffs appeal a final judgment of dismissal with prejudice in favor of appellee Florida East Coast Railway Company. They *700also appeal a judgment which struck the derivative claim of appellant T. D. Barrow against appellee Curtis for loss of consortium and medical expenses. The appellants have presented two points. The first point urges that the court erred in dismissing the complaint as to appellee Florida East Coast Railway Company because the allegations were sufficient to state a cause of action in negligence. The second point urges as error the striking of T. D. Barrow’s derivative claim.
The essence of appellants’ complaint against the railroad company is that the company’s train was near an intersection and that appellee Curtis became frightened by the train so that she ran her motor vehicle into Janis Barrow’s motor vehicle. The complaint dismissed was an amended complaint which failed to allege any facts from which a jury could conclude that the railroad was negligent. The complaint could not withstand the motion to dismiss for failure to state a caitse of action because the complaint did not contain allegations of fact tending to show that the railroad company created a condition which was the foreseeable and proximate cause of injury to Janis Barrow unbroken by the negligence of any third party. See Cone v. Inter County Telephone & Telegraph Co., Fla. 1949, 40 So.2d 148; Pope v. Pinkerton-Hays Lumber Co., Fla.App.1960, 120 So.2d 227; Schatz v. 7-Eleven, Inc., Fla.App.1961, 128 So.2d 901.
Upon oral argument appellant T. D. Barrow abandoned his claim for loss of consortium, because it affirmatively appeared from the complaint that he had married appellant Janis Barrow after the date of the injury. See 27 Am.Jur., Husband and Wife, § 501; cf. Parham v. Kohler, Fla.App. 1961, 134 So.2d 274. Appellants’ counsel argued only that the claim of T. D. Barrow should be allowed to the extent of medical expenses which T. D. Barrow may have paid. See Hatchell v. Hayes, Fla.App.1963, 157 So.2d 855. While we adhere to the holding in the last cited case, we do not think that the appellant has demonstrated prejudicial error here, inasmuch as the complaint contains the allegation that the appellant wife is liable for her medical expenses.
The judgment for the appellee Florida East Coast Railroad Company is affirmed, and the judgment striking the claim of appellant T. D. Barrow is affirmed.
Affirmed.
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Tremblay v. Carter, 390 So. 2d 816 (Fla. 2d DCA 1980)…ium. W. Prosser, Law of Torts § 124 (4th ed. 1971). Though there are no reported decisions in this state squarely on point, there are at least two cases in which the Florida courts have assumed the existence of the common law rule. Barrow v. Curtis, 209 So. 2d 699 (Fla.3d DCA 1968); Parham v. Kohler, 134 So. 2d 274 (Fla.3d DCA 1961). Mrs. Tremblay acknowledges the novelty of her legal position, but she points to two recent federal decisions which support her view. Bulloch v. United States, 487 F.Supp. 1078 (…
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Maxim Bramble Czellar v. Francis I. duPONT & Co., 227 So. 2d 882 (Fla. 3d DCA 1969)…l court was eminently correct in holding that the defendant was entitled to a summary judgment. Moreover we think it should be pointed out that the damages urged in argument before this court were not recoverable. Cf. Barrow v. Curtis, Fla.App.1968, 209 So. 2d 699; Courtney v. American Oil Company, Fla. App.1969, 220 So. 2d 675. Affirmed.…
Authorities Cited
- Cone v. Inter Cnty. Tel. Tel. Co., 40 So.2d 148 (Fla. 1949)
- Doyle Pope v. Pinkerton-Hays Lumber Co., Inc., 120 So. 2d 227 (Fla. 1st DCA 1960)
- Schatz v. 7-Eleven, Inc., 128 So. 2d 901 (Fla. 1st DCA 1961)
- Glenna Parham and Richard Parham v. Kohler, 134 So. 2d 274 (Fla. 3d DCA 1961)
- Hatchell v. Hayes, 157 So. 2d 855 (Fla. 1st DCA 1963)