Dubus v. McArthur, 96-1662
| Decision Date | 26 November 1996 |
| Docket Number | No. 96-1662,96-1662 |
| Citation | 682 So.2d 1246 |
| Parties | 21 Fla. L. Weekly D2530 Sandra DUBUS and Gary Dubus, Wife and husband, Appellants, v. Ernest V. McARTHUR, Appellee. |
| Court | Florida District Court of Appeals |
James F. McKenzie of McKenzie & Soloway, P.A., Pensacola, for Appellants.
David B. Pleat of Barth & Pleat, Destin, for Appellees.
Sandra Dubus and her husband, Gary Dubus, appeal a final summary judgment granted to appellee, Ernest V. McArthur. We agree that the summary judgment was appropriate, but for the reasons explained below, we hold that summary judgment should have been granted with leave to appellants to amend their complaint. Thus, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Appellants filed a complaint against McArthur and others for damages arising out of a motor vehicle accident. Regarding McArthur, they alleged that he was negligent in entrusting his rented motor vehicle to Dennis Ray Pietz, who operated the vehicle in such a manner that it collided with Dubus' vehicle. After discovery, McArthur moved for summary judgment on the grounds that no evidence supported liability on his part for negligent entrustment. Determining that the only theory of liability alleged by the appellants against McArthur was negligent entrustment, which appellants admitted was not supported by the evidence, the trial court entered summary judgment.
Appellants argue that their complaint sufficiently alleges a cause of action based upon McArthur's status as a bailee of the vehicle driven by Pietz, in that, as a bailee, McArthur was vicariously liable under the dangerous instrumentality doctrine for the negligent operation of the vehicle by Pietz. It is apparent that the task of the trial court here was made more difficult because the appellants' amended complaint improperly attempts to state in a single count separate causes of action for vicarious liability and for negligent entrustment. Rule 1.110(f), Fla. R. Civ. P.; Sikes v. Seaboard Coast Line R. Co., 429 So.2d 1216 (Fla. 1st DCA), rev. denied, 440 So.2d 353 (Fla.1983). In addition, although the allegations include facts relating to a claim for vicarious liability on the part of a bailee (McArthur), the elements of that cause of action were not separately or sufficiently pled.
In entering summary judgment, the trial court did not address the vicarious liability claim. Although we affirm the summary...
To continue reading
Request your trial
-
K.R. Exch. Serv., Inc. v. Fuerst, Humphrey, Ittleman, PL
...set forth defective claims by "impermissibly comingling separate and distinct claims" in a single count); Dubus v. McArthur, 682 So.2d 1246, 1247 (Fla. 1st DCA 1996) (stating that the "task of the trial court was made more difficult because the appellants' amended complaint improperly attem......
-
Ali v. Fisher
...and vicarious liability because the elements require a showing of different facts that must be separately pleaded. 682 So.2d 1246, 1247 (Fla.Dist.Ct.App. 1996).5 In contrast, the plaintiff relies on Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431 (Tex.App.1992), in which the Court ......
-
K.R. Exch. Serv. Inc v. Fuerst
...set forth defective claims by "impermissibly comingling separate and distinct claims" in a single count); Dubus v. McArthur, 682 So. 2d 1246, 1247 (Fla. 1st DCA 1996) (stating that the "task of the trial court was made more difficult because the appellants' amended complaint improperly atte......
-
Cardona v. Benton Exp., Inc., No. 3D01-2080
...Inc. v. Slack, 159 So.2d 236, 240 (Fla.1963); Plyser v. Hados, 388 So.2d 1284, 1285 (Fla. 3d DCA 1980); Dubus v. McArthur, 682 So.2d 1246, 1247 (Fla. 1st DCA 1996). We have stated, however, that it is an abuse of discretion to allow an amendment if doing so injects a new cause of action. Bo......