Marrillia v. Lyn Craft Boat Co., 71--737

• Decision Date: 05 January 1973
• Docket Number: No. 71--737,71--737
• Citation: 271 So.2d 204
• Parties: 12 UCC Rep.Serv. 81 Ronald MARRILLIA, Appellant, v. LYN CRAFT BOAT COMPANY, a Florida corporation, and St. Pete Boat Mart, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 204

271 So.2d 204

12 UCC Rep.Serv. 81

Ronald MARRILLIA, Appellant, v. LYN CRAFT BOAT COMPANY, a Florida corporation, and St. Pete Boat Mart, Inc., a Florida corporation, Appellees.

No. 71--737.

District Court of Appeal of Florida, Second District.

Jan. 5, 1973.

Hammond & Holman, Pinellas Park, for appellant.

Billy L. Rowe, of Harrison, Greene, Mann, Davenport, Rowe & Stanton, St. Petersburg, for appellee, Lyn Craft Boat Co.

Ramseur, Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellee, St. Pete Boat Mart, Inc.

HOBSON, Acting Chief Judge.

Appellant appeals a final judgment dismissing his complaint against the appellees which was couched in four counts, each count against both appellees; however, upon examination of the four counts the complaint actually alleges two theories of recovery, one under negligence and the other under implied warranty.

Appellant alleged that appellee Lyn Craft Boat Company, hereinafter referred to as Lyn Craft, was the manufacturer of a certain boat and its accessories, specifically the steering cable. He also alleged that appellee, St. Pete Boat Mart, Inc., hereinafter referred to as Boat Mart, was the retail dealer who sold the boat.

As to the factual allegations, the complaint alleged that on February 23, 1969 one John and Mary Keough purchased from Boat Mart one Seabreeze boat manufactured by Lyn Craft. On October 31, 1970 the appellant was a guest passenger in the boat, at which time the steering cable broke, causing the boat to veer suddenly throwing appellant from the boat and into the water. Appellant was struck by the propeller of the outboard motor and suffered severe injuries and damages.

The complaint alleged the negligent acts of the defendants to be: 1) the failure to design or construct the steering cable so that it would not break when used for its intended purpose; 2) failure to adequately test and inspect the steering cable; 3) failure to warn the intended users of the dangers inherent in the use of the steering cable including directions for its use, warnings concerning any limitations or restrictions upon its use and warnings concerning the use in the manner in which it was installed; and 4) failure to properly install the steering mechanism which the appellees, knew, or in the exercise of reasonable care should have known, was of insufficient strength, improper design, or improper construction.

As to the breach of implied warranty counts, the appellant alleged that the appellees impliedly warranted that said steering mechanism was merchantable and reasonably fit for its intended use; that at the time of the occurrence the steering mechanism was being used for its intended purpose; and that unknown to the appellant the steering mechanism was not merchantable or reasonably fit for its intended use, as a result of which the same broke and caused appellant's injuries.

The trial court ruled as a matter of law that the complaint failed to state a cause of action because the accident was too remote from the purchase of the boat to establish liability upon the appellees under either theory.

We first consider the allegations of the complaint as to the negligence of appellee Boat Mart. It was held in Carter v. Hector Supply Co., Fla.1961, 128 So.2d 390, that a retailer could be held liable to a third party in a negligence action only if a retailer could have been charged with actual or implied knowledge of a defect. Although the complaint was inartfully drawn, we feel that, at this stage of the proceedings, it is at least adequate to withstand a motion to dismiss the negligence count against Boat Mart. As to the allegations of negligence on the part of Lyn Craft, we hold that the...