Kairalla v. John D. and Catherine T. MacArthur Foundation

• Decision Date: 16 November 1988
• Docket Number: No. 87-1618,87-1618
• Citation: 534 So.2d 774,13 Fla. L. Weekly 2499
• Parties: 13 Fla. L. Weekly 2499 Carol KAIRALLA, as Personal Representative of the Estate of Ronald Kairalla, Deceased, Appellant, v. JOHN D. AND CATHERINE T. MacARTHUR FOUNDATION, a foreign corporation, C & F Management, Inc., Miami Elevator Company and Communications By Johnson, Inc., Appellees. Case
• Court: Florida District Court of Appeals

Page 774

534 So.2d 774

13 Fla. L. Weekly 2499

Carol KAIRALLA, as Personal Representative of the Estate of Ronald Kairalla, Deceased, Appellant, v. JOHN D. AND CATHERINE T. MacARTHUR FOUNDATION, a foreign corporation, C & F Management, Inc., Miami Elevator Company and Communications By Johnson, Inc., Appellees.

Case No. 87-1618.

District Court of Appeal of Florida Fourth District.

Nov. 16, 1988.

Kocha & Jones, P.A., and Philip M. Burlington of Edna L. Caruso, P.A., West Palm Beach, for appellant.

Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee--Communications by Johnson, Inc.

GUNTHER, Judge.

The plaintiff appeals the dismissal with prejudice of Count V of her complaint for negligence. We reverse.

The trial court dismissed with prejudice the defendant, Communications By Johnson, Inc. (Johnson), on the basis that Count V of the amended complaint failed to state a cause of action because it lacked sufficient allegations of proximate cause. Although Johnson was named as a defendant in the lawsuit for the first time in Count V of the amended complaint, the plaintiff was never afforded an opportunity to amend that count.

This court has held on numerous occasions that a dismissal with prejudice should not be ordered without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action. Kern v. Martz, 462 So.2d 867 (Fla. 4th DCA 1985); Delia and Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla. 4th DCA 1984); Hansen v. Central Adjustment Bureau, Inc., 348 So.2d 608 (Fla. 4th DCA 1977).

In the instant case, the trial court concluded that the plaintiff could not remedy the defect in her pleadings by amendment. However, it is not apparent to us that the pleading could not be amended to state a cause of action. In our view, the plaintiff should have at least one opportunity to amend her pleadings to more specifically address the causal connection between the inoperable phones and the decedent's death.

We hold that the trial court erred in dismissing Count V with prejudice without providing the plaintiff at least one opportunity to amend that count. We reverse and remand to the trial court with directions to permit the plaintiff an opportunity to amend her pleadings.

REVERSED AND REMANDED.

LETTS, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge, concurring specially.

I agree with the trial court that the initial pleading directed against this defendant did not state a cause of action. The allegations included the following:

25. That the Defendant, COMMUNICATIONS BY JOHNSON, INC., was responsible for maintaining the telephone systems, including the telephones located in the elevators of the main building at The Colonnades Beach Hotel. In the course of maintaining the subject telephones at The Colonnades Beach Hotel, by and through its agents, servants or employees, the Defendant, COMMUNICATIONS BY JOHNSON, INC., owed a duty of reasonable care to individuals situated such as the Plaintiff/Decedent.

26. On or about July 3, 1985, the Plaintiff/Decedent was employed as a general manager of The Colonnades, Inc. that was owned by the Defendant. That on that date there was a power outage on Singer Island, where the Defendant's premises is located. The Plaintiff/Decedent was advised that third parties were trapped in an elevator located in the Defendant's main building on the premises. That in the process of attempting to locate and rescue the trapped persons in the Defendant's elevator, the Plaintiff/Decedent fell down an open elevator shaft, resulting in his death. The Plaintiff/Decedent was unable to verify the existence of persons in the subject elevators, as the telephone system, maintained by COMMUNICATIONS BY JOHNSON, INC., were [sic] inoperable.

27. On or about July 3, 1985, the Defendant, COMMUNICATIONS BY JOHNSON, INC., breached this duty of reasonable care owed to the Plaintiff/Decedent, RONALD KAIRALLA, by negligently and carelessly failing to provide working telephones in the elevators, to...