Landrum v. John Doe Pit Digger, s. 95-05194
| Decision Date | 09 July 1997 |
| Docket Number | 96-00252,Nos. 95-05194,s. 95-05194 |
| Citation | 696 So.2d 926 |
| Parties | 22 Fla. L. Weekly D1716 Felicia LANDRUM, as personal representative of the Estate of Anthony (Tony) Landrum, deceased, Appellant, v. JOHN DOE PIT DIGGER; Otter Lake Development, Inc., a Florida corporation; Otter Lake Development, a Florida partnership composed of Betty Jane Bacon, Theron A. Arnold and Joseph S. Pagliano, as partners; Otter Lake Joint Venture, a Florida partnership composed of Marilyn F. McIntosh, personal representative of the Estate of Craig McIntosh, Roger Conley, Earl L. Snyder, II, William Dooley, and Sandra Sutton as partners; Sutton Group Properties; Richard Sutton and Sandra Sutton, individually; and Otter Lake Homeowners' Association, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Patrick Dekle; Robert J. Shapiro; and A. Woodson Isom, Jr., Tampa, for Appellant.
Donald W. Yetter of Yetter & Zaremba, P.A., Bradenton, for Appellee Theron A. Arnold.
Roger P. Conley of Conley & Cleary, Bradenton, for Appellee Roger Conley.
William A. Dooley and J. Neal Mobley of Nelson & Hesse, Sarasota, for Appellee William Dooley.
David W. Wilcox, Bradenton, for Appellee Marilyn F. McIntosh, personal representative of the Estate of Craig McIntosh.
Alan E. Tannenbaum and Jane M. Kennedy of Levin and Tannenbaum, P.A., Sarasota, for Appellee Otter Lake Homeowners' Association, Inc.
Charles W. Hall, Jeffrey P. Winkler and William A. Kebler of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., St. Petersburg, for Appellee Joseph S. Pagliano.
Richard R. Garland and A. James Rolfes of Dickinson & Gibbons, P.A., Sarasota, for Appellee Earl L. Snyder, II.
John D. Hawkins and Douglas A. Peebles of Grimes, Goebel, Grimes and Hawkins, P.A., Bradenton, for Appellees Sutton Group Properties, Richard and Sandra Sutton.
Felicia Landrum, as personal representative of her son Anthony Landrum's estate (the estate), challenges the trial court's order dismissing several counts of her amended complaint for failure to state a cause of action. We reverse because the allegations are sufficient to state a cause of action for negligence.
The estate filed a six-count amended complaint alleging causes of action sounding in negligence and breach of warranty against appellees. The amended complaint alleges four counts of negligence, each against different defendants as follows:
John Doe Pit Digger (count I); Otter Lake Development, Inc. 1 , Otter Lake Development and Otter Lake Joint Venture (count II); Sutton Group Properties and Richard Sutton individually (count III); and Otter Lake Homeowners' Association and Marv Silvern 2 (count VI). The remaining counts (counts IV and V) allege breaches of warranty against Sutton Group Properties. Appellees, Joseph S. Pagliano, Craig McIntosh, Marv Silvern, Otter Lake Homeowners' Association, Inc., Roger Conley, William A. Dooley, Sandra Sutton, Richard Sutton, Sutton Group Properties and Earl L. Snyder, II, filed motions to dismiss for failure to state a cause of action.
After a hearing on the motions, the trial court entered several orders dismissing certain counts and defendants from the law suit. The initial order dismissed with prejudice counts II and VI of the amended complaint; thereby, removing Otter Lake Development, Inc., Otter Lake Development, Otter Lake Joint Venture and Otter Lake Homeowners' Association from the litigation. The order also dismissed without prejudice count III against the Sutton Group and Richard Sutton. The dismissal without prejudice was to allow the estate to file, if it could, a cause of action for negligence based on a violation of the Housing and Urban Development regulations.
The estate timely filed a notice of appeal from this order of dismissal. Thereafter, the trial court entered two additional orders dismissing Snyder and Pagliano, individually, from the lawsuit. Timely notices of appeal were filed, and this court consolidated all the pending appeals.
Counts II, III and VI are all negligence counts based on the death of Anthony Landrum, who drowned in a lake/pit, Lake Otter, located on the subdivision known as Otter Lake Villas in Sarasota County, Florida. The complaint alleges that Otter Lake Development, Inc., Otter Lake Development and Otter Lake Joint Venture were, either separately or jointly, the developers of Otter Lake Villas. It further alleges that the lake which exists on the property was dug by John Doe Pit Digger, and that the lake has a vertical eight foot drop-off which cannot be seen after the lake is filled with water. Additionally, the estate contends the sides of the lake are composed of a clay-like material that is...
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