Cintron v. Osmose Wood Preserving, Inc., 96-0335
| Decision Date | 18 October 1996 |
| Docket Number | No. 96-0335,96-0335 |
| Citation | 681 So.2d 859 |
| Parties | 21 Fla. L. Weekly D2249 Edelmiro CINTRON and Elizabeth Cintron, etc., Appellants, v. OSMOSE WOOD PRESERVING, INC., etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Russell Troutman and Joseph H. Williams of Troutman, Williams, Irvin, Green & Helms, PA., Winter Park, for Appellants.
John R. Dixon of Barr, Murman, Tonelli, Herzfeld & Rubin, Tampa, for Appellee Osmose Wood Preserving, Inc.
Robert W. Anthony and John Taylor of Warlick, Fassett & Anthony, P.A., Orlando, for Appellee Lennar Homes, Inc.
We have for review the trial court's final order dismissing with prejudice the personal injury lawsuit instituted by appellants Edelmiro and Elizabeth Cintron. Because the Cintrons' complaint sets forth cognizable causes of action for strict liability and negligence, we must reverse the dismissal order and remand for further proceedings.
In 1987, Lennar Homes, Inc. (Lennar), constructed a townhouse. The construction included roof sheathing consisting of Flameproof LHC plywood. The plywood, impregnated with a chemical flame retardant, was alleged to have been manufactured and distributed by Osmose Wood Preserving, Inc. (Osmose). In 1992, Edelmiro Cintron was working on the roof of the townhouse when the roof sheathing failed, causing him to fall through the roof and attic. After falling some thirty feet, he landed on the kitchen floor of the townhouse and sustained personal injury. Mr. Cintron and his wife thereafter sued Osmose on counts of strict liability and negligence. They also sued Lennar, alleging negligence.
Osmose and Lennar filed separate motions to dismiss the Cintrons' complaint. Upon review, the trial court entered an order summarily granting the motions to dismiss but allowing the Cintrons thirty days to file an amended complaint. Apparently satisfied that they had adequately plead causes of action for strict liability and negligence, the Cintrons declined to amend their complaint. The trial court thereafter entered an order summarily dismissing with prejudice the Cintrons' initial complaint. We conclude that dismissal was improper because the complaint included allegations sufficient to state causes of action for strict liability and negligence.
In Florida, a complaint must contain a short and plain statement of the ultimate facts demonstrating that the plaintiff is entitled to the relief requested. See Fla.R.Civ.P. 1.110(b). In reviewing a motion to dismiss a complaint, the trial court must make its decision solely upon questions of law. In conducting this review, the court must confine itself to the four corners of the complaint and accept all allegations in the complaint as true. In this regard, the trial court is not free to speculate as to what may indeed be true or ultimately proven. The question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961).
Osmose filed a motion to dismiss the strict liability count of the Cintrons' complaint asserting two separate arguments. Specifically, the motion to dismiss asserted that Osmose could not be held liable for Mr. Cintron's injuries because the corporation does not sell any wood products. However, this assertion of fact cannot support dismissal because it is in direct conflict with allegations contained in the Cintrons' complaint averring that the Flameproof LHC plywood was manufactured and distributed by Osmose. As noted above, factual conflicts cannot be resolved by motions to dismiss because all allegations in the complaint must be accepted as true. Such conflicts are better addressed in summary judgment proceedings.
Osmose also maintained that dismissal of the Cintrons' complaint was required because the complaint failed to contain an allegation that the fire retardant chemicals "reached the plaintiff without substantial change in the condition in which it was sold." This argument lacks merit because the complaint specifically contains such an allegation. More important, however, is the fact that there is no legal authority requiring such an allegation. Instead, a cause of action on the theory of strict liability may be properly pled by alleging:
(1) the manufacturer's relationship to the product in question,
(2) the unreasonably dangerous condition of the product, and
(3) the existence of a proximate causal connection between the condition of the product and the plaintiff's injury.
West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 87 (Fla.1976). While a change in the condition of the product may be raised by the...
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