MAXIMUS PAGAN, AS ADMINISTRATOR OF THE ESTATE OF GERADO PAGAN, A MINOR, DECEASED, APPELLANT,
v.
B. L. HOLMAN D/B/A HOLMAN GROVES AND OTIS SWICORD, APPELLEES; MAXIMUS PAGAN, APPELLANT, V. B. L. HOLMAN D/B/A HOLMAN GROVES AND OTIS SWICORD, APPELLEES
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Plaintiff sued for negligence arising from a multi-vehicle collision allegedly caused by defendant's sudden decrease in speed without warning. The trial court dismissed the complaint for failure to state a cause of action, but the appellate court reversed, holding that allegations of negligent failure to signal a sudden decrease in speed sufficiently state a negligence claim.
Allegations that a leading motorist negligently caused a collision by suddenly stopping or decreasing speed without giving notice sufficiently allege negligence to withstand a motion to dismiss. The plaintiff has the burden of pleading and proving negligent failure to signal or warn, but the complaint need not plead evidentiary facts about whether the defendant had opportunity to signal; such opportunity is a matter peculiarly within the defendant's knowledge and will ordinarily be inferred by the jury from evidence.
“The operator of a leading vehicle has a duty to use the road in the usual way.”
Establishes the basic duty of care owed by a driver ahead of another vehicle
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Join FLexlaw to unlock all legal intelligenceA collision occurred on a through highway involving three vehicles. The complaint alleged that defendant Swicord suddenly decreased the speed of his v…
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Plaintiff’s fourth and sixth amended complaints were dismissed with leave to amend for failure to state causes of action. Plaintiff declined to amend further, whereupon trial judge dismissed his actions with prejudice.
Plaintiff’s amended complaints were based upon the same occurrence — a collision on a through highway involving three vehicles. The relevant paragraphs of his complaints are identical.
Ignoring evidentiary matters, legal conclusions and other defects,1 the complaints allege negligence and proximate cause in language substantially as follows: Defendant-Swicord suddenly decreased the speed of his vehicle 2 without giving any signal or warning thereby negligently causing his vehicle, the Buick vehicle approaching from the rear and a third vehicle approaching from the opposite direction to* collide on the through highway.
The operator of a leading vehicle-has a duty to use the road in the usual way. Gosma v. Adams, 1931, 102 Fla. 305, 135 So. 806, 78 A.L.R. 1193. Consequently,, such an operator may be held liable, if',, without notice, he stops or decreases speed’ so suddenly that the operator of the following vehicle is not reasonably able to avoid *608a collision. Miami Transit Company v. Karses, 1941, 146 Fla. 163, 200 So. 372. However, a sudden stop or decrease in speed without notice may or may not constitute negligence, depending upon the •circumstances: “This is so because a sudden or abrupt stop, which could be the result of negligent operation, could as well result from conditions and circumstances making it entirely proper and free of any negligence.” See Blackman v. Miami Transit Company, Fla.App.1960, 125 So.2d 128, 130, 92 A.L.R.2d 1387, 1390. For example, a sudden stop or decrease in speed without warning ordinarily would not constitute negligence, if done in response to .a sudden emergency. See Holmes v. Surfus, Second District Court of Appeal, 194 So.2d 283, opinion filed January 20, 1967; Annotation: 29 A.L.R.2d 5 at § 8, page 41. This is recognized by E.S.A. § 317.371(3), which provides as follows: “No person shall stop or suddenly decrease the speed of .a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear, when there is opportunity to give such signal(Emphasis added.) Accordingly, we agree that plaintiff has the burden of pleading and proving negligent failure to signal or warn. We disagree with the trial judge only in finding that the plaintiff has sufficiently pleaded this element in his .amended pleadings.
Whether a leading motorist had opportunity to signal a sudden stop or decrease in speed ordinarily will lie peculiarly within his knowledge. Facts which lie more within the knowledge of an adversary may be averred generally. Williams v. Ahrenholz, Fla.App.1959, 108 So.2d 304, 307. Furthermore, whether a leading motorist had opportunity to signal frequently will have to be inferred by the jury from numerous facts and circumstances disclosed by the evidence.3 Evi-dentiary facts and circumstances should not be pleaded. R.C.P. 1.110(b). Under the circumstances allegations that a leading motorist negligently caused a collision by suddenly stopping or decreasing speed without giving notice sufficiently allege negligence to withstand a motion to dismiss.4
Reversed and remanded.
WALDEN, C. J., ANDREWS, J., and ELMORE, FRANK H., Associate Judge, concur.
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Revellino v. AVIS Rent-A-Car Sys., Inc., 229 So. 2d 896 (Fla. 3d DCA 1969)…circumstances presented the issues of negligence and contributory negligence could not properly be resolved by the trial court on motion for summary, judgment. See Mansell v. Eidge, Fla.App. 1965, 179 So. 2d 624, 627; Pagan v. Holman, Fla.App. 1967, 195 So. 2d 606. Cf. Jeskey v. Yellow Cab Company, Inc., Fla.App.1962, 136 So. 2d 376. Accordingly, the summary judgment is reversed, and the cause is remanded for further proceedings.…
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Authorities Cited
- Gosma v. Adams, 102 Fla. 305 (Fla. 1931)
- Blackman v. Miami Transit Co., 125 So. 2d 128 (Fla. 3d DCA 1960)
- Haislet v. Crowley, 170 So. 2d 88 (Fla. 2d DCA 1964)
- Marvel R. Neal v. State of Fla. ex rel. Lester P. King & Verlie King, 137 So. 2d 252 (Fla. 1st DCA 1961)
- Woodcock v. Harton, 146 Fla. 16 (Fla. 1941)
- Miami Transit Co. v. Karses, 146 Fla. 163 (Fla. 1941)
- Nancy Holmes and her husband v. Surfus, 194 So. 2d 283 (Fla. 2d DCA 1967)
- Williams v. Ahrenholz, 108 So. 2d 304 (Fla. 3d DCA 1959)