GLENN K. BRYANT, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, LEROY BRYANT, AND LEROY BRYANT, INDIVIDUALLY, APPELLANTS,
v.
DAVID PISTULKA AND JAMES WHITE, APPELLEES
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Counts one, two, seven, and eight of the second amended complaint state valid causes of action, but count three fails because it relies on an inapplicable statute.
Plaintiffs sought damages for alleged negligence against sixteen defendants in their second amended complaint. After settling with fourteen defendants…
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[*480] PER CURIAM.
This is an appeal from a final order of the Circuit Court of Duval County dismissing plaintiffs’ second amended complaint with prejudice.
In their second amended complaint appellants sought damages for alleged negligence against sixteen defendants. Since the filing of this appeal, appellants have settled with fourteen of the original defendants and the appeal has been dismissed as to them, leaving only the original defendants, Pistulka and White, as appellees.
The second amended complaint contained eight counts, only five of which are now pertinent, viz counts one, two, three, seven and eight. We reverse as to counts one, two, seven and eight, and affirm as to count three. In so doing we hold that counts one, two, seven and eight each states a cause of action sufficient to withstand a motion to dismiss but that count three must fall because it is erroneously predicated upon an alleged violation of Section 562.11 F.S. (1973) which statute was designed only to regulate licensed vendors of alcoholic beverages upon the licensed premises of such vendors. State v. Vocelle, 159 Fla. 88, 31 So. 2d 52 (1947); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA, 1977); United Services Automobile Association et al. v. Butler, 359 So. 2d 498 (Fla. 4th DCA, 1978). Therefore, as to count three of the second amended complaint, the learned trial court was eminently correct in dismissing same with prejudice, inasmuch as it is impossible for appellants to base a cause of action upon that statute.
Reversed as to counts one, two, seven and eight. Affirmed as to count three. Remanded for further proceedings consistent herewith.
ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., .Associate Judge, concur.
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Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987)…d 259, 366 N.W. 2d 857 (1985). Defendants assert that section 768.125 is ambiguous in light of the construction placed on a similar statute, section 562.11(1)(a), Florida Statutes (1973), by the First District Court of Appeal in Bryant v. Pistulka, 366 So. 2d 479 (Fla. 1st DCA 1979), and the Fourth District Court of Appeal in United Services Automobile Association v. Butler, 359 So. 2d 498 (Fla. 4th DCA 1978). Section 562.11(1), Florida Statutes (1973), begins: It is unlawful for any person to sell, give, s…
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Bonds v. Fleming, 539 So. 2d 583 (Fla. 5th DCA 1989)…l liability. Section 562.11, Florida Statutes (1984) was designed to regulate licensed vendors of alcoholic beverages upon the licensed premises of such vendors. State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So. 2d 52 (1947); Bryant v. Pistulka, 366 So. 2d 479 (Fla. 1st DCA 1979); United Services Automobile Association v. Butler, 359 So. 2d 498 (Fla. 4th DCA 1978); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So. 2d 710 (Fla.1978). The statute does not apply to Fleming unde…
Authorities Cited
- State v. Vocelle, 159 Fla. 88 (Fla. 1947)
- City OF Miami v. Gates, 352 So. 2d 542 (Fla. 3d DCA 1977)
- United Servs. Auto. Ass'n v. Butler, 359 So. 2d 498 (Fla. 4th DCA 1978)