Tims v. Orange State Oil Co., 3620

• Decision Date: 18 March 1964
• Docket Number: No. 3620,3620
• Citation: 161 So.2d 844
• Parties: Opal TIMS, Appellant, v. ORANGE STATE OIL COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 844

161 So.2d 844

Opal TIMS, Appellant, v. ORANGE STATE OIL COMPANY, a Florida corporation, Appellee.

No. 3620.

District Court of Appeal of Florida, Second District.

March 18, 1964.

Dominick J. Salfi and J. Russell Hornsby, of the Law Offices of J. Russell Hornsby, Orlando, for appellant.

Raymer F. Maguire, Jr., of Maguire, Voorhis & Wells, Orlando, for appellee.

KANNER, Judge (Ret.).

Opal Tims, appellant, plaintiff below, sought damages from Orange State Oil Company, defendant-appellee, for injuries allegedly resulting from a collision of her automobile with a grease rack. The trial court, expressing the opinion that the allegations of the second amended complaint were insufficient to constitute a cause of action, granted the motion of defendant-appellee to dismiss it. From the ensuing judgment, the plaintiff-appellant has appealed.

The complaint, in two counts, asserts alternative claims for relief. Count I alleges that appellee occupies, is in possession and control of, and operates a gasoline station which faces U. S. Highway 27 and borders on old U. S. Highway 50, extending for approximately one city block, with two state-owned drive-in entrances on U. S. Highway 27 and one state-owned entrance on U. S. Highway 50. Negligence of appellee is next averred in the following language:

'4. That on the day aforesaid, the defendant, ORANGE STATE OIL COMPANY, its agents, servants or employees, carelessly and negligently placed, permitted and allowed to be placed a large iron 'grease rack' weighing many pounds in, across, and upon a public right-of-way at the place aforesaid.

'5. That on the night of March 2, 1959, at or about 7:30 P.M., plaintiff OPAL TIMS, was operating her automobile in an approximate westerly direction and that plaintiff, OPAL TIMS, while traveling in said direction, did then and there approach the place on the public right-of-way where said 'grease rack' was negligently and carelessly left; and that by reason of the wrongful, negligent act of the defendant in failing to place warning lights, signs, flares and/or barricades or other warning devices, and having left said 'grease rack' weighing many pounds on the public right-of-way, and by reason of leaving the same in a dangerous condition, plaintiff, OPAL TIMS, did then and there drive into and strike said 'grease rack' and by reason of said act said plaintiff was seriously, painfully, and permanently injured as more fully hereinafter set out.

'6. That the aforesaid act of negligence was the direct proximate cause of the plaintiff's injuries and the consequent damages thereto, in that the public right-of-way in which said 'grease rack' had been placed by the defendant, was openly and notoriously dangerous and also that defendant had actual notice of its dangerous condition, or by the exercise of reasonable care defendant could have ascertained the dangerous condition of placing said 'grease rack' upon the public right-of-way and highway, but wrongfully neglected the same and allowed it to remain unguarded and with no warning device whatsoever.'

Basically, the second count is the same as the first, except that it alleges that the grease rack struck by appellant's automobile had been placed upon a 'way' located on a corner of the property occupied by appellee, such way having been established by the public which had passed and repassed over it for a long period of time.

We are of the persuasion that each count of the complaint is sufficient to have resisted successfully appellee's motion to dismiss; we are therefore constrained to reverse the action of the trial court. Our decision to do so comports with the test of adequacy required of a complaint as set out in Rule 1.8(b), Florida Rules of Civil Procedure, 30 F.S.A., 'It shall set forth a short and plain statement of the ultimate facts on which the pleader relies, and if it informs the defendant of the nature of the cause against him, it shall be held sufficient.' Our view is consonant also with the general rule requiring that a plaintiff, in order to state a cause of actionable negligence, must allege ultimate facts showing the relationship out of which a duty is implied by law and sufficient acts or omissions causing the injury, coupled with the averment that they were negligently done or omitted. See Raphael v. Koretzky, Fla.App.1958, 102 So.2d 746; Rudisill v. Taxicabs of Tampa, Inc., Fla.App.1962, 147 So.2d 180; 23 Fla.Jur., Negligence, sections 101 through 105, pages 335-339.

Appellee, attacking Count I of the second amended complaint, refers specifically to paragraph 6 as being contradictory and confusing and insists that its allegations are lacking in distinctness, definiteness, and clarity. Demonstrating, appellee describes paragraph 6 as the proximate cause allegation and classifies it as the critical part of Count I, quoting from it the language, '* * * that the public right-of-way * * * was openly and notoriously dangerous.' Appellee states that this averment appears to say that the public right-of-way itself was openly dangerous and indicates that the allegation obviously was not intended to convey this. It is urged that, because of this lack of clarity, there could result inconsistencies of interpretation and that, should it be determined the allegation means the grease rack was openly and notoriously dangerous, this would set up facts on the face of the complaint that the appellant was guilty of contributory negligence as a matter of law or assumption of risk.

By a perusal of the whole of paragraph 6, it is apparent that the public right-of-way with the grease rack in it is characterized as openly and notoriously dangerous. This paragraph, moreover, in its beginning statement adverts to ...