Alvarez v. E & A Produce Corp., s. 97-1205

• Citation: 708 So.2d 997
• Decision Date: 25 March 1998
• Docket Number: 97-1202,Nos. 97-1205,97-1192 and 97-1191,s. 97-1205
• Parties: 23 Fla. L. Weekly D815 Pedro ALVAREZ and Aracelia Alvarez, Livina Rosa Garcia, as Personal Representative of the Estate of Roberto Garcia, deceased, and Michelin Tire Corporation, a foreign corporation, Appellants, v. E & A PRODUCE CORPORATION, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 997

708 So.2d 997

23 Fla. L. Weekly D815

Pedro ALVAREZ and Aracelia Alvarez, Livina Rosa Garcia, as Personal Representative of the Estate of Roberto Garcia, deceased, and Michelin Tire Corporation, a foreign corporation, Appellants, v. E & A PRODUCE CORPORATION, a Florida corporation, Appellee.

Nos. 97-1205, 97-1202, 97-1192 and 97-1191.

District Court of Appeal of Florida Third District.

March 25, 1998.

Rehearing Denied April 29, 1998.

Mandina, Ginsberg & Toledo and Marc Ginsberg, Miami; Jones, Foster, Johnston & Stubbs and Steven J. Rothman and Mark B. Kleinfeld, West Palm Beach, for appellants.

Sparkman, Robb, Mason & Ginsburg and John W. Reis, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and GREEN, JJ.

NESBITT, Judge.

In this tort action which followed the explosion of a truck tire, these four appeals were consolidated and arise from the dismissal with prejudice of plaintiff Garcia's and plaintiff Alvarez's complaints against E & A Produce Corporation (E & A). The trial court found that the plaintiffs' complaints failed to state a cause of action against E & A, the owner of the tire. Michelin Tire Corporation (Michelin), the manufacturer of the tire and a co-defendant below, likewise appealed E & A's dismissal from the case. We agree with the trial court that the plaintiffs failed to state a cause of action in negligence against E & A, and affirm.

On October 5, 1992, E & A brought the tire in question to Alvarez Tire for repairs. Rigoberto Garcia, an employee of Alvarez Tire, worked on the tire. After the tire was inspected, repaired and reinflated (without incident), and while Garcia was remounting it on E & A's truck, the tire ruptured ¹ in a spot separate from the area that had just been repaired, exploding with such force that Garcia was killed and Pedro Alvarez was seriously injured. Garcia's personal representative and the Alvarezes brought claims against Michelin in negligence and strict liability, and against E & A in negligence.

The allegations in the plaintiffs' complaints were nearly identical so we will address them as one complaint. The complaint alleged that E & A was a "regular and frequent user" of trucks and of truck tires and, as such, had a duty to properly inspect and maintain its tires, and "knew or should have known" and warned the Alvarez Tire employees "that the tire was defective." The plaintiffs ultimately (in the third amended complaint filed in November 1995) made the specific allegation that E & A drove on the tire while it was "underinflated and/or overloaded," creating a "dangerous condition"--the "zipper tear"--which proximately caused the deadly explosion. Michelin's affirmative defenses alleged that one or both of the plaintiffs and/or E & A was responsible for (or contributed to) the tire's dangerous condition.

E & A moved to dismiss the charges against it, contending that the complaint failed to state a cause of action against it because E & A neither owed nor breached any legal duty to the plaintiffs. E & A asserted that it should not be held to a higher standard than an ordinary user of tires, emphasizing that all it had done was bring a flat tire to Alvarez and Garcia for repair.

The trial court granted E & A's motion to dismiss, with prejudice, the amended complaints of both the Alvarezes and Garcia. The plaintiffs and Michelin appeal the Final Order of Dismissal.

We find that dismissal of the complaint against E & A was proper. To survive a motion to dismiss, a complaint must allege a prima facie case. In evaluating a motion to dismiss, the court confines its consideration to the four corners of the complaint and must accept all well-pleaded allegations as true. See, e.g., Abrams v. General Ins. Co., 460 So.2d 572 (Fla. 3d DCA 1984). Whether a prima facie case has been pled depends on the sufficiency of the plaintiff's allegations of fact, excluding the bare conclusions of the plaintiff. See Frank v. Lurie, 157 So.2d 431, 433 (Fla. 2d DCA 1963).

We find that the facts alleged here do not state a cause of action in negligence against E & A. To successfully raise a claim in negligence, a complaint must contain ultimate facts supporting each element of the negligence cause of action. See, e.g., Rankin v. Colman, 476 So.2d 234, 236 (Fla. 5th DCA 1985). Here, the plaintiffs would have had to allege: (1) that E & A knew or should have known the tire was likely to be dangerous; (2) that E & A failed to exercise reasonable care to inform the plaintiffs of the tire's dangerous condition; (3) injury to the plaintiffs proximately caused by E & A's breach of duty; and (4) that E & A had "no reason to believe that [the plaintiffs would] realize [the tire's] dangerous condition." See Restatement (Second) of Torts § 388 (section addressing the suppliers of chattels, which would include, as here, bailors).

The plaintiffs' complaint does allege the first three of the four essential elements above, but does not allege the fourth. Supporting element (1), paragraph 34 of the complaint alleges that: "As a regular and frequent user of tires, the Defendant ... knew or should have known that underinflation and/or overloading of tires causes a dangerous condition." Also, paragraph 37 alleges that: "The Defendant knew or should have known that the tire on their [sic] truck ... was defective." Supporting element (2), paragraphs 35 and 36 allege "a duty to properly maintain, inspect and use the tire" and breach of that duty "by failing to properly inspect the tire and/or by driving on the tire while the tire was underinflated or overloaded." Paragraphs 39 and 40 also support element (2), alleging a duty to warn of "the dangerous condition of the tire" and breach of that duty. Supporting element (3), paragraph 42 alleges injury to the plaintiff proximately caused by E & A.

However, no facts alleged in the complaint support element (4), in that the plaintiffs neglected to allege that the dangerous condition or defect in the tire was latent--which is another way of saying that the plaintiffs would not have realized its dangerous condition. Warning of defects is not always necessary; such warning is necessary "if, but only if, [the bailor] has no reason to expect that those for whose use the chattel is supplied [here...