Weissberg v. Albertson's Inc., 4D04-84.

• Decision Date: 10 November 2004
• Docket Number: No. 4D04-84.,4D04-84.
• Citation: 886 So.2d 305
• Parties: Karan WEISSBERG and Marty Weissberg, her husband, Appellants, v. ALBERTSON'S INC., Appellee.
• Court: Florida District Court of Appeals

886 So.2d 305

Karan WEISSBERG and Marty Weissberg, her husband, Appellants, v. ALBERTSON'S INC., Appellee.

No. 4D04-84.

District Court of Appeal of Florida, Fourth District.

November 10, 2004.

Robert Garven, Coral Springs, and Charles A. Mancuso of Thomas & Pearl, P.A., Fort Lauderdale, for appellants.

Andrea L. Kessler and Wesley L. Catri of Catri, Holton, Kessler & Kessler, P.A., Fort Lauderdale, for appellee.

STEVENSON, J.

In this appeal, Karan and Marty Weissberg challenge the dismissal with prejudice of their negligence action against Albertson's Inc. Because the complaint properly alleged at least one cause of action, and could be amended to state a related cause of action, we reverse.

In February of 2003, Karan and Marty Weissberg filed a negligence suit against Albertson's Inc. The Weissbergs alleged that, on June 1, 2002, Karan was shopping at Albertson's when she was struck by a "powerized" shopping cart that had been provided by Albertson's. Albertson's filed a motion to dismiss for failure to state a cause of action, arguing that, in essence, the Weissbergs were seeking to hold it liable for a fellow shopper's negligent operation of the cart under the dangerous instrumentality doctrine and, by statute, such a shopping cart is not a dangerous instrumentality. The trial court granted the motion to dismiss and afforded the Weissbergs the opportunity to amend.

The amended complaint contained the following allegations of negligence:

7. ... Plaintiff, KAR[A]N WEISSBERG, was standing and/or walking on the floor of said premises in an area open to use for customers, when she was struck by a powerized shopping cart, a Mart Cart,... which was operated by an unnamed patron of Defendant.

8. Defendant was on actual notice of the injury and/or accident causing propensities of the Mart Cart as a result of the failure to comply with manufacturer's operating instructions.

9. Defendant, ALBERTSON'S was negligent, including but not limited to, negligently allowing a patron of Defendant to operate a powerized shopping cart without taking any precautions to determine if the patron of Defendant was trained in the operation of a powerized shopping cart, pursuant to the manufacturer's instructions, or able to operate this powerized shopping cart in a safe and cautious manner, pursuant to the manufacturer's instructions.

10. Defendant, ALBERTSON'S, failed to provide safety warning devices, provided by the manufacturer, for the Mart Cart in question including safety flags and/or flashing safety lights.

11. The negligence of the Defendant, ALBERTSON'S, created a casual [sic] relationship between the actions of its unnamed customer, and the injuries and damages sustained by Plaintiff, KARAN WEISSBERG.

Again, Albertson's sought dismissal, raising the same arguments that resulted in dismissal of the original complaint. This time, the trial court dismissed the complaint with prejudice and final judgment was entered in favor of Albertson's. The trial court's ruling is subject to de novo review. See Atkins v. Topp Telecom, Inc., 873 So.2d 397, 398 (Fla. 4th...