CHARLES FRADLEY, III, APPELLANT,
v.
COUNTY OF DADE, APPELLEE
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The court held that the plaintiff's failure to provide timely notice of the claim to the county barred the action, as statutory notice is a prerequisite to the right of action.
Plaintiff sued the County of Dade for malpractice, alleging injuries sustained at Jackson Memorial Hospital. Written notice of the claim was given to …
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This is an appeal from an order dismissing plaintiff’s second amended complaint. .
*49The plaintiff instituted this malpractice action against the County of Dade for injuries alleged to have been sustained while a patient at Jackson Memorial Hospital between May 25, 1963 and July 15, 1963. It was alleged in the amended complaint that written notice of the claim was given to the defendant on July 15, 1964. It was further alleged that the plaintiff did not become aware of the negligence of the hospital staff until December 9, 1963.
A complainant in a malpractice suit has an election to sue in tort or for the breach of contract and the applicable statutory period depends upon the claim for relief stated by the plaintiff.1
The plaintiff has elected to bring this action for breach of contract therefore, the cause of action accrues from the time of the breach or neglect, not from the time when consequential damages result or become ascertained. This is so because the action is founded on the breach of duty and not the consequent injuries.2
Section 95.08, Fla.Stat., F.S.A. provides that notice of a claim shall be given to a county within one year from the time the claim becomes due or else it is barred.
Plaintiff has failed to comply with the statute which is a prerequisite to the right of action against the county. We therefore affirm the order on the authority of Whitehurst v. Hernando County, 91 Fla. 509, 107 So. 627 (1926); Kahl v. Board of County Commissioners of Dade County, Fla.App.1964, 162 So.2d 522. See also: Rapid Motor Lines, Inc. v. Cox, 134 Conn. 235, 56 A.2d 519, 175 A.L.R. 296 (1947).
Affirmed.
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State Farm Mut. Auto. Ins. Co. & State Farm Fire & Cas. Co. v. Kunbok LEE and Gisun Lee, 678 So. 2d 818 (Fla. 1996)…s Mut. Casualty Co. v. August, 530 So. 2d 293, 295 (Fla.1988) (recognizing that action to recover uninsured motorist benefits is not strictly an action dealing with contract, but also involves some aspects of-tort action); Fradley v. County of Dade, 187 So. 2d 48 (Fla. 3d DCA 1966) (holding that where plaintiff elected to bring action on breach of contract theory, cause of action accrued from time of breach or neglect, rather than from time when consequential damages resulted or became ascertained). The Lev…
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Kolski v. Kolski, 731 So. 2d 169 (Fla. 3d DCA 1999)…tract does not accrue for purposes of the statute until the breach or in this case, upon Patricia's first refusal to repay the loan in 1997. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla.1996) (citing Fradley v. County of Dade, 187 So. 2d 48, 49 (Fla. 3d DCA 1966)). . Our decision here is based solely on the application of the statute of frauds and in no way addresses the merits of this action. See Harrison, 682 So. 2d at 652-53 n2. . The revised dissent now appropriately concedes tha…
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Creviston v. Gen. Motors Corp. & J. W. Whitesides, 210 So. 2d 755 (Fla. 2d DCA 1968)…have known that he had an occupational disease is one of fact and thus ordinarily to be determined by the jury. James v. Pennsylvania R. Co., 3 Cir., 1952, 196 F. 2d 1021, citing Urie v. Thompson, supra.” In Fradley v. County of Dade, Fla.App.1966, 187 So. 2d 48, a malpractice action was brought against Dade County. The Third District Court of Appeal held that the malpractice action based on a breach of contract theory could not be maintained where notice of claim was not given to the county within one year…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Manning v. Serrano, 97 So. 2d 688 (Fla. 1957)
- Whitehurst v. Hernando Cnty., 91 Fla. 509 (Fla. 1926)
- Turnipseed v. Turnipseed, 162 So. 2d 522 (Fla. 1st DCA 1964)
- Kahl v. Bd. OF Cnty. Comm'rs OF Dade Cnty., 162 So. 2d 522 (Fla. 3d DCA 1964)