Leonard v. Nat Harrison Associates, Inc., 1392

Decision Date10 August 1960
Docket NumberNo. 1392,1392
Citation122 So.2d 432
PartiesIva H. LEONARD, Appellant, v. NAT HARRISON ASSOCIATES, INC., Appellee.
CourtFlorida District Court of Appeals

Frederick E. Hollingsworth of Farish & Farish, West Palm Beach, for appellant.

W. C. Owen, Jr., of Miller, Cone, Owen, Wagner & Nugent, West Palm Beach, for appellee.

SHANNON, Judge.

This is an appeal from a final judgment consequent upon the granting of a motion to dismiss the plaintiff-appellant's amended complaint.

The amended complaint alleges that the plaintiff was a tenant in lawful possession of certain premises and that defendant wrongfully, unlawfully and without authority or the consent of the plaintiff drove a truck upon the premises of the plaintiff, and as a direct and proximate result of the wrongful breaking and entering by the defendant the steps of the plaintiff were damaged. Also in the same count of the amended complaint the plaintiff alleged that as a direct and proximate result of the wrongful breaking and entering by the defendant, plaintiff subsequently fell and sustained great bodily injury. This occurred when plaintiff attempted to use the steps some nine days after defendant's entry upon the land.

The trial court granted defendants's motion to dismiss, saying in part:

'* * * [N]ine days elapsed, within which the plaintiff could observe and could use the broken steps in question, and therefore the effect of the direct invasion was broken, and the cause of action is trespass on the case, to which the defense of contributory negligence is available. * * *.'

The plaintiff has posed two questions as follows:

1. Does the amended complaint contain sufficient allegations to state a cause of action?

2. Could the plaintiff claim damages for personal injuries in an action for trespass or was she required to bring separate action of trespass on the case to recover for her personal injuries?

The defendant in its brief has conceded that the plaintiff is entitled to at least nominal damages for the injury to the steps and also has conceded that if the personal injuries received by the plaintiff are a direct and immediate result of the trespass they can be brought in the same action of trespass. But, the defendant argues, notwithstanding this, the defense of contributory negligence is still available as to those injuries and resulting damages which lie outside of the classical common law definition of 'trespass', namely, those that are indirect and consequential. The plaintiff, on the other hand, argues that this being an action of trespass quare clausum fregit, the theory of negligence is not involved.

Historically the roots of trespass were criminal and punitive, rather than compensatory. As the law developed in time this became a sort of intentional tort--but intentional does not have its usual meaning here, as the intentional element can be implied. Thus, in reality, negligent acts of a defendant will support trespass, but the word, negligence, is not used. By avoiding use of the word, negligence, the doctrine of contributory negligence is similarly banned. As Justice Sebring stated for the Supreme Court in the case of Harris v. Baden, 1944, 154 Fla. 373, 17 So.2d 608, 612:

'At the common law, every entry upon another's land, except by consent, was deemed a trespass for which satisfaction would lie. * * *.'

Thus, in an action for trespass, the plaintiff is entitled to at least nominal damages on proof of entry without consent. Both parties agree to this point, and the issue here is the personal injuries which plaintiff alleges are immediate and direct. Whether on proof the plaintiff can sustain her allegations is a question that neither this court nor the trial court can determine at this time.

The case of St. Petersburg Coco-Cola Bottling Company v. Cuccinello, Fla.1950, 44 So.2d 670, definitely determines that contributory negligence is not a proper defense to trespass. In that case recovery was allowed in a complaint of trespass quare clausum fregit for injuries to a child struck by the defendant's truck while trespassing on the premises owned by the plaintiff's father. The court had this to say, at page 672:

'The second plea alleges simple contributory negligence on the part of the plaintiff. Contributory negligence is not a defense to an action for trespass. * * *.'

The amended complaint, here, alleges that the injury to the plaintiff was a direct and proximate result of the wrongful breaking and entering by the defendant. The truth of this allegation involves a factual determination, and depends upon the testimony. If the injury was, in fact, direct and immediate, it is a trespass; but on the other hand, if it is consequential or collateral it will be trespass on the case. While nine days may not seem, on its face, to be either direct or immediate, there is this question of proof, and we must conclude that the trial court was in error in sustaining the motion to dismiss.

Since the distinction between 'immediate' and 'consequential' will undoubtedly be important in further proceedings in this case, we may note in passing how this matter is treated in Jordan v. Wyatt, 4 Grat. 151, 45 Va. 151, 154 "The terms 'immediate' and 'consequential' should * * * be understood, not in reference to the time which the act occupies, or the space through which it passes, or the place from which it is begun, or the intention with which it is done, or the instrument or agent employed, or the lawfulness or unlawfulness of the act; but in reference to the progress and termination of the act, to its being done on the one hand, and its having been done on the other. If the injury is inflicted by the act at any moment of its progress, from the commencement to the termination thereof, then the injury is direct or immediate; but if it arises after the act has been completed, though occasioned by the act, then it is consequential or collateral, or, more exactly, a collateral consequence."

Reversed.

ALLEN, C. J., and LOVE, WM. K., Associate Judge, concur in the order of reversal but do not concur in the opinion.

ALLEN, Chief Judge (specially concurring).

I concur in the judgment reversing the lower court since the court erred in sustaining a motion to dismiss the complaint as the plaintiff would be entitled to at least nominal damages in the breaking of the enclosure of the plaintiff and from damage to the steps. This the appellee concedes.

The amended complaint alleged, in effect, that the defendant's servant and employee wrongfully drove a truck owned by the defendant upon the premises rented by the plaintiff and unlawfully broke and entered upon the said premises; unlawfully drove the truck against the steps at the entrance of plaintiff's home located upon said premises; and, as a direct result, the support of the steps were split and broken and the bottom step was split and broken; that some nine days thereafter the plaintiff, while attempting to use the steps, sustained great bodily injury, etc. On motion, the lower court dismissed the complaint by the following order:

'This cause coming before the Court on motion to dismiss the amended complaint herein, and it appears from the contention of the plaintiff that, once a trespass quare clausum fregit has been committed, thereafter the trespasser is liable, as a matter of law, for injuries sustained by the owner, tenant, or any person lawfully in possession of the premises. The plaintiff refers to the 'Squib case,' and to the Van Alstyne case [Van Alstyne v. Rochester Telephone Corp., 163 Misc. 258], (296 N.Y.S. 726), which allowed recovery for the poisoning of the plaintiff's dogs on the plaintiff's premises. The Court concurs with the two cases above noted, but points out that in this case there was not a continuous sequence of events, as in the two cases noted, over which the plaintiff had no control; but on the contrary, nine days elapsed, within which the plaintiff could observe and could use the broken steps in question, and therefore the effect of the direct invasion was broken, and the cause of action is trespass on the case, to which the defense of contributory negligence is available. Plaintiff notes that forms of action and technical forms for seeking relief are abolished. This is true, but the causes of action remain, e. g. 'trespass on the case.' There is no allegation that the plaintiff did not know of or see the broken steps in question and could not, by the exercise of reasonable care, have known of or seen the broken steps in question. It is noted that the ruling herein made, as to the plaintiff, who is a tenant, has no bearing upon the right of the owner (or the tenant if so alleged) to recover damages to the property as a result of the trespass. It is thereupon

'Ordered that the defendant's motion to dismiss the amended complaint is hereby granted, and the plaintiff shall have 10 days in which to further plead.'

Pursuant to the above order, a final judgment was entered in favor of the defendant and an appeal was taken to this court.

The plaintiff alleged two types of injuries: (1) damage to the steps, and (2) damages for physical injuries sustained by the plaintiff. Therefore, the plaintiff would be entitled, from the allegations of the complaint if proven, to secure damages for the steps caused by the trespass, even if the personal injuries were not immediate and, therefore, not provable under trespass.

Under technical common law pleadings, a trespasser was liable for damages in trespass for breaking the enclosure and for other direct and immediate damages that resulted therefrom. If damages or injuries were not immediate then action on the case was the remedy.

It is apparent the parties, as well as the able trial judge, were concentrating on the personal injuries to the plaintiff, and not the breaking of the close or damage to the steps which were incidental, and, therefore, the double aspects of the complaint were overlooked. The damage...

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  • In re Methyl Tertiary Butyl Ether Products Liab.
    • United States
    • U.S. District Court — Southern District of New York
    • 20 Abril 2005
    ...850, 851 (Fla.Ct.App.1998) (quoting Pearson v. Ford Motor Co., 694 So.2d 61, 69 (Fla.Ct.App.1997)). 188. Leonard v. Nat Harrison Assocs., Inc., 122 So.2d 432, 433 (Fla.Ct.App.1960). 189. Escambia Compl. ¶ 190. See id. ¶¶ 72-78, 83-88, 91-125, 150-159. 191. See Leonard, 122 So.2d at 433 (whe......
  • Pitts Sales, Inc. v. King World Productions, Inc.
    • United States
    • U.S. District Court — Southern District of Florida
    • 28 Junio 2005
    ...for nominal damages and costs. State v. Sarantopoulos, 604 So.2d 551, 555 n. 7 (Fla. 2d DCA 1992)(citing Leonard v. Nat Harrison Associates, Inc., 122 So.2d 432 (Fla. 2d DCA 1960); Stockman v. A.W. Duke, 578 So.2d 831, 833 (Fla. 2d DCA 1991)); see also Fletcher, 319 So.2d at 104 (Fla. 1st D......
  • Daniel v. Morris
    • United States
    • Florida District Court of Appeals
    • 4 Diciembre 2015
    ...if no actual damages are proven, the plaintiff is still entitled to nominal damages and costs. See, e.g., Leonard v. Nat Harrison Assocs., Inc., 122 So.2d 432, 433 (Fla. 2d DCA 1960). If the injury to the land is temporary rather than continuing or permanent, then distinct successive rights......
  • Fletcher v. Florida Pub. Co., V-101
    • United States
    • Florida District Court of Appeals
    • 10 Septiembre 1975
    ...the premises in the case before us. It, therefore, was not a trespass, and I would affirm the trial court. 1 Leonard v. Nat Harrison Associates, Inc., Fla.App.2nd 1960, 122 So.2d 432.2 See Harris v. Baden, 1944, 154 Fla. 373, 17 So.2d 608, wherein the Court said: 'At the common law, every e......
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1 books & journal articles
  • Real property actions
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • 1 Abril 2022
    ...See Also 1. Lauck v. General Telephone Company , 300 So.2d 759, 761 (Fla. 2d DCA 1974). 2. Leonard v. Nat Harrison Associates, Inc. , 122 So.2d 432 (Fla. 2d DCA 1960) (“If the injury was, in fact, direct and immediate, it is a trespass; but on the other hand, if it is consequential or colla......

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