Davis By and Through Davis v. Bell, 97-00244
| Decision Date | 21 January 1998 |
| Docket Number | No. 97-00244,97-00244 |
| Citation | 705 So.2d 108 |
| Parties | 23 Fla. L. Weekly D280 Joshua DAVIS, a minor, By and Through his next friend, Cameo DAVIS, and Cameo Davis, individually, Appellants, v. Lee BELL, individually, d/b/a Kic Real Estate, and as Trustee for Lee Bell Family Trust, Appellee. |
| Court | Florida District Court of Appeals |
Theresa I Wigginton of Macy & Associates, P.A., Bradenton, for Appellants.
John Powell of Law Offices of J.A. Setchel, Tampa, for Appellee.
Joshua and Cameo Davis appeal the final judgment dismissing their negligence action against Lee Bell. We reverse because their complaint sufficiently alleged a cause of action based on premises liability.
The Davises sued Bell and two other defendants, Tomas and Martha Moffatt, seeking compensation for injuries Joshua Davis suffered in a fall from a tree. Their complaint recited that Joshua, who was six years old at the time of the accident, was playing in the backyard of a triplex rental unit that Bell owns. The Moffatts' property lies directly behind the triplex. Between the two properties are a partially fallen-down cyclone fence and a small tree. The base of the tree is located on the Moffatts' land. The fence is behind the tree on the Moffatts' side, which means the tree is freely accessible from Bell's property. Moreover, its branches extend over the backyard of the triplex. Someone at the triplex had erected a clothesline between a branch of the tree and a post in the backyard. Joshua climbed into the tree, using the cyclone fence as a ladder. He fell, and impaled his eye on a large, upturned, spike-like branch that appeared to have been pruned or broken off. Joshua lost most of the vision in his eye.
The Davises' second amended complaint asserted that both Bell and the Moffatts knew that children often played in the backyard of the triplex. The complaint charged that the Moffatts had access to and control of the tree because its base was situated on their property, and that they had actual or constructive notice of the dangerous condition because the spike-like branch apparently had existed for some time. The Davises contended that Bell had open access to the tree and joint control of it and the limbs that overhung the triplex property. They further asserted that Bell had actual notice of the dangerous condition before Joshua's fall, because one of his tenants had warned him that the spike-like branch posed a hazard to children playing in the area. The complaint averred that Joshua was in a zone of risk that was reasonably foreseeable.
Both Bell and the Moffatts filed motions to dismiss. Bell's motion, which is the subject of this appeal, claimed the complaint failed to state ultimate facts that showed entitlement to relief, failed to alleged the existence of a duty that would support a negligence action, and failed to join indispensable parties, Bell's tenants at the triplex. Bell also contended that the broken tree branch was a natural condition and should not be considered an attractive nuisance. The circuit court denied the Moffatts' motion, but dismissed Bell from the lawsuit on the basis that he was not in actual possession or control of the tree.
We begin our discussion with the oft-stated...
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