BETHANY ANN KELLER, BY AND THROUGH HER NATURAL PARENT AND NEXT FRIEND, VIRGINIA F. COMPTON, AND VIRGINIA F. COMPTON, APPELLANTS,
v.
EAGLE ARMY-NAVY DEPARTMENT STORES, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that the plaintiff's complaint, though inartful, was adequate to state a cause of action for breach of warranty and that the trial court's dismissal was premature.
Plaintiff, an injured person not in privity with the retailer, sued for injuries allegedly caused by an exploding patio torch. This was the fourth com…
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We reverse the trial court judgment which dismissed what was in fact the fourth complaint filed by the plaintiff. While we agree that the complaint was in-artful, far from being a model, and certainly borderline as to legal sufficiency, we feel from our review of the cases and criteria contained therein 1 that the complaint was at least adequate at this stage to state a cause of action in breach of warranty. The action was brought against a retailer by an injured person not in privity, based upon the notion that the injury was caused by a dangerous instrumentality.2
We specifically do not here determine whether or not the exploding patio torch in question was a dangerous instrumentality. We only hold that the trial court decision as to this concern was premature and that *249such determination, at least in this uncertain instance, should be made only after plaintiff has had an opportunity to adduce evidence as to the construction and dangers of this particular device.
Reversed and remanded.
REED, C. J., and WALDEN and MA-GER, JJ., concur.
PER CURIAM.
UPON MOTION FOR CLARIFICATION
This motion being well founded, we supplement our opinion which was filed on November 19, 1971, by saying that appellants’ complaint stated a cause of action in each of its four counts.
REED, C. J., and WALDEN and MA-GER, JJ., concur.
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Keller v. Eagle Army-Navy Dep't Stores, Inc., 291 So. 2d 58 (Fla. 4th DCA 1974)…mphasis supplied) Upon a Motion for Clarification, this court further amplified the above holding by finding that the Complaint stated a cause of action in each of the four counts. Keller et al. v. Eagle Army-Navy Department Stores, Inc. (Fla.App.) 256 So. 2d 248. At the trial, the plaintiff and the members of the Law family testified as to the [*60] happening of this unfortunate accident. The plaintiff also produced as a witness a chemical engineer who testified at some length on the construction of the to…
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Iorio v. Obie Lawrence Layman, 256 So. 2d 26 (Fla. 4th DCA 1971)…adequacy of a complaint compels us to the conclusion that the complaint was “at least adequate at this stage” to state a cause of action for breach of contract. See Keller v. Eagle Army-Navy Department Stores, Inc., Fourth District Court of Appeal, 256 So. 2d 248, opinion filed November 19, 1971, citing the following cases: Cohn v. Florida-Georgia Television Company, Inc., Fla.App. [*27] 1969, 218 So. 2d 787, and Fontainebleau Hotel Corp. v. Walters, Fla.1971, 246 So. 2d 563. See also Pizzi v. Central Bank a…
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Snead Constr. Corp. v. Parkway E., Inc., 324 So. 2d 206 (Fla. 3d DCA 1975)…types may be demanded. Every complaint shall be considered to pray for general relief. Since we find the plaintiff’s claims to be well pled, they should not have been dismissed. See Keller v. Eagle Army-Navy Department Stores, Inc., Fla.App. 1972, 256 So. 2d 248; also see Hammonds v. Buckeye Cellulose Corporation, Fla.1973, 285 So. 2d 7. It is to be noted that this decision deals only with pleadings and is not to be construed as a disposition on the merits. Reversed and remanded with directions to reinstat…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895 (Fla. 1971)
- Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563 (Fla. 1971)
- Toombs v. Fort Pierce GAS Co., 208 So. 2d 615 (Fla. 1968)
- Cohn v. Florida-Georgia Television Co., Inc., 218 So. 2d 787 (Fla. 1st DCA 1969)
- Heffner v. State, 218 So. 2d 787 (Fla. 1st DCA 1969)