McKinzie By and Through McKinzie v. Hollywood, Inc., 81-896
| Decision Date | 13 October 1982 |
| Docket Number | No. 81-896,81-896 |
| Parties | Herschel McKINZIE, Jr., a minor By and Through his parents and next friends, Herschel McKINZIE, Sr., and Marilyn McKinzie and Herschel McKinzie, Sr., and Marilyn McKinzie, Individually, Appellants, v. HOLLYWOOD, INC., Appellee. |
| Court | Florida District Court of Appeals |
Stephen G. Fischer of Fox & Fischer, Miami, for appellants.
Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara & McCoy, Miami, for appellee.
The plaintiffs, now appellants, assert that the trial court erred in vacating a default and in entering a judgment on the pleadings in favor of the defendant. We affirm the order setting aside the default, but we reverse the judgment on the pleadings because the complaint set forth a viable legal theory by alleging that the defendant landowner negligently failed to take reasonable steps to prevent persons on its property from injuring people traveling on an adjoining street.
This suit was instituted against the landowner by a minor child and his parents. They alleged that the child, while a passenger in a car traveling on a street abutting the defendant's property, was hit on the head and severely injured by a rock thrown from the defendant's property. They also alleged that the defendant created or permitted a dangerous tree fort, stockpiled with rocks, to remain on the defendant's property. Further, plaintiffs alleged that the defendant knew or should have known of numerous prior incidents of rock throwing at cars from the fort and that the defendant knew or should have known that the fort constituted a dangerous nuisance to persons passing by the property on the adjoining street. Finally, plaintiffs asserted that the defendant failed to take reasonable steps to protect the persons passing by from suffering injuries at the hands of the rock throwers.
The defendant failed to answer and a default was entered. Later, the trial court vacated the default and entered a judgment on the pleadings in favor of the defendant.
The first issue we must decide is whether the trial court abused its discretion in setting aside the default. Florida has a long standing policy of liberality towards the vacating of defaults. North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). Because of this policy, a greater showing is required to reverse an order granting a motion to vacate a default than is required to reverse a denial of such a motion. B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347 (Fla. 3d DCA 1981). In the present case, we believe that the appellants have failed to demonstrate a gross abuse of discretion by the trial court. See North Shore Hospital, Inc. v. Barber, supra; Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). Therefore, we affirm the order setting aside the default.
With regard to the propriety of the judgment on the pleadings, we begin with the well-established rules governing motions for judgments on the pleadings. We have previously summarized these rules as follows:
Under Rule 1.140(c), Fla.R.Civ.P., all material allegations of the opposing party's pleading are to be taken as true, and all those of the movant which have been denied are taken as false.... Since an answer requires no responsive pleading, all allegations contained therein are deemed denied.... Such a motion is to be decided wholly on the pleadings without the aid of outside matters.... Judgment on the pleadings may be granted only if, on admitted facts, the moving party is clearly entitled to judgment as a matter of law.... It is improper for a trial court to enter judgment on the pleadings where a factual question is involved.
Krieger v. Ocean Properties, Ltd., 387 So.2d 1012, 1013-14 (Fla. 4th DCA 1980) (citations omitted).
Next, we must consider the substantive law governing the plaintiffs' claim. That law was set forth in Davis v. Johnson, 288 So.2d 554 (Fla. 2d DCA 1974). The court said that,
A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to...
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