NICHOLAS C. SARDELL AND MARIE H. SARDELL, HIS WIFE, APPELLANTS,
v.
GARY MALANIO, APPELLEE
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The Sardells appealed the dismissal of their negligence complaint against Gary Malanio for injuries sustained when a minor was struck by a football thrown by Malanio. The court affirmed dismissal, holding that throwing a football does not constitute negligence as a matter of law and that the intervention of the co-defendant minor's independent action broke the chain of proximate causation.
The amended complaint failed to state a cause of action for negligence because throwing a football is not negligent per se, and the intervention of the co-defendant minor's independent action in attempting to catch the ball and colliding with the plaintiff breaks the chain of proximate causation. The defendant passer had no physical control over the pass catcher and no reasonable reason to expect the catcher to collide with the plaintiff.
“To constitute proximate cause, there must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said but for the act the injury would not have occurred.”
Establishes the standard for proximate causation in negligence cases.
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Join FLexlaw to unlock all legal intelligenceMarie Sardell was crossing a street in Miami when minor Irving Silverman ran into and knocked her to the ground while attempting to catch a football t…
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The plaintiffs, Nicholas C. Sardell and Marie H. Sardell, his wife, appeal from a final order of the Circuit Court which dismissed their amended complaint for failure to state a cause of action.
The complaint alleges, inter alia, that the plaintiff wife was crossing a street in Miami, Florida, when a minor co-defendant, Irving Silverman, (not a party to this appeal), ran into her and knocked her to the ground as he attempted to catch a football being thrown to him by the minor defendant, Gary Malanio. She alleged negligence on the part of Silvei'man, and in the alternative alleged that the defendant, Malanio, negligently threw a football pass to the co-defendant, Silverman, in her immediate vicinity without maintaining a proper lookout,- and failed to warn her that he was throwing the pass, when he knew or should have known of her presence, thereby causing the accident. Other allegations not pertinent to this appeal were also included in the complaint.
For the purpose of the motion to dismiss, we assume that all the allegations of the complaint are true. Ocala Loan Company v. Smith, Fla.App. 1963, 155 So.2d 711.
The allegation that Malanio negligently threw a football pass to another minor defendant, in the immediate vicinity of the plaintiff, fails to sufficiently charge the defendant, Malanio with negligence. Throwing a football is not a negligent act, per se. The question then is whether the throwing of a football in the immediate vicinity of someone is a negligent act if the passer knew or should have known of that person’s presence?
The law does not impose liability merely because it is possible to trace a connection between a negligent act or omission and an injury. To constitute proximate cause, there must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said but for the act the injury would not have occurred. See 23 Fla.Jur. Negligence § 29.
We are unable to find that the alleged act constitutes negligence. It does not overcome the requirement of the “proximate cause” doctrine. The passer had no physical control over the pass catcher [Sil-verman], and logically had no reason to expect him to run into and collide with the plaintiff, even if the football was thrown into her immediate vicinity.
In 23 Fla.Jur. Negligence § 37, it is stated:
“A person’s negligence is not the proximate cause of an injury that results from *395the intervention of a new and independent cause that is neither anticipated nor reasonably foreseeable by the person, is not a consequence of his negligence, is not controlled by him, operates independently of his negligence, and is the efficient cause of the injury in the sense that the injury would not occur in its absence. * * * Thus, where a negligent act creates a condition that is subsequently acted on by another unforeseeable, independent, and distinct agency to produce the injury, the original act is the remote and not the proximate cause of the injury, even though the injury would not occur except for the act. * * * ”
‡ ^ ‡ ‡
The question here was did the amended complaint state a cause of action sufficiently to withstand the motion to dismiss? We find that it did not, and the decision of the trial court in dismissing the amended complaint as to the defendant, Malanio, is therefore
Affirmed.
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Sardell v. Malanio, 202 So. 2d 746 (Fla. 1967)…ave known of her presence. She alleged that this negligence of Malanio caused her injury. The trial judge sustained a motion to dismiss the complaint as it related to Malanio. His order was affirmed on appeal by the D.C.A. [*747] Sardell v. Malanio, 189 So. 2d 393 (3d D.C. A. Fla. 1966). This decision is now here for review. The District Court of Appeal correctly opined that “[t]o constitute proximate cause, there must be such a natural, direct and continuous sequence between the negligent act and the injury…
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Fountainview Ass'n, Inc. v. Bell, 203 So. 2d 657 (Fla. 3d DCA 1967)…the chancellor’s actions, we are required to take as true all facts pleaded in the complaints. See: Bailey v. Folks, Fla.App.1966, 182 So. 2d 477; Russell v. Community Blood Bank, Inc., Fla.App.1966, 185 So. 2d 749; Sardell v. Malanio, Fla.App.1966, 189 So. 2d 393; C. D. Utility Corp. v. Maxwell, Fla.App.1966, 189 So. 2d 643. Examining the limited record in light of these principles, the following appears: Some time prior to 1964, the individual defendants had title, to certain undeveloped land in Dade County…
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Sardell v. Malanio, 202 So. 2d 872 (Fla. 3d DCA 1967)…PER CURIAM. WHEREAS, the judgment of this court was entered on June 14, 1966 (189 So. 2d 393) affirming the order of the Circuit Court of Dade County, Florida, appealed from in the above styled cause; and WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed September 27,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ocala Loan Co. v. Smith, 155 So. 2d 711 (Fla. 1st DCA 1963)