Angell v. F. Avanzini Lumber Co., 77-1643
| Decision Date | 22 September 1978 |
| Docket Number | No. 77-1643,77-1643 |
| Citation | 363 So.2d 571 |
| Parties | Mary M. Cummins ANGELL, formerly Mary M. Cummins, as administratrix of the estate of Robert A. Cummins, Sr., Deceased, Appellant, v. F. AVANZINI LUMBER CO., a Florida Corporation and Donald Kabrich, an Individual, Appellees. |
| Court | Florida District Court of Appeals |
Gregory L. Macy, of Hamilton, Douglas & Bennett, Tampa, for appellant.
John H. Piccin, of Pattillo, MacKay & McKeever, Ocala, for appellees.
Appellant/plaintiff, Mary M. Cummins Angell, as administratrix of the estate of Robert A. Cummins, Sr., deceased, appeals the dismissal of her second amended complaint for failure to state a cause of action. The complaint contained two counts: 1) common law negligence, and 2) negligence based upon appellees' breach of Section 790.17, Florida Statutes, which forbids the sale of weapons to minors and persons of unsound mind. We reverse as to count one and affirm as to count two.
For the purposes of this opinion we accept the facts as alleged in appellant's amended complaint. They present the following scenario: On October 20, 1975, Cynthia Rose Hartley entered the business of Avanzini Lumber Company, a dealer in firearms. Her eyes were glazed and she was laughing and giggling as she hugged and kissed one of the employees who was a total stranger to her. At her request, appellee Kabrich, an employee in the store, handed Ms. Hartley a .30 caliber rifle which she then repeatedly aimed at Kabrich's head, pulling the trigger. After one such episode, she stated that since she had shot Kabrich she would have to bury him. Ms. Hartley then demanded ammunition and, despite numerous admonitions by appellee Kabrich, she repeatedly attempted to load the rifle. At this juncture, Kabrich called the Citrus County Sheriff's Department and told the duty officer that a woman was at the store to buy a rifle and was acting strangely. The deputy advised Kabrich that he did not have to sell the rifle to Ms. Hartley. However, Kabrich decided to sell the rifle and ammunition to Ms. Hartley. Shortly thereafter, she used this rifle to shoot and kill appellant's decedent who was not an employee of Avanzini Lumber Company.
No one disputes that in order for Count I of appellant's complaint to withstand a motion to dismiss, it must contain three elements: 1) existence of a duty on the part of defendant to protect plaintiff from injury,...
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