PHILIP C. MORSE, JR. AND BOAT HAVEN NAPLES, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
HENDRY CORPORATION, A FLORIDA CORPORATION, APPELLEE

Fla. 2d DCA | 1967-06-30
No. 7451
SHANNON, Acting C. J., and ADAMS, GEO. E., Associate Judge, concur.
200 So. 2d 816 Florida District Court of Appeal, Second District (1967) Positive Treatment
Cited by 10 cases

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Synopsis

Morse and Boat Haven Naples sued Hendry Corporation for property damage caused by blasting operations on a nearby channel. The trial court dismissed counts for third-party beneficiary and absolute liability, retaining only negligence. On appeal, the Florida District Court of Appeal reversed, holding that third-party beneficiary claims are viable and adopting the doctrine of absolute liability for blasting operations.


Holding

The court reversed the dismissal of Count I (third-party beneficiary) because sufficient facts were alleged to proceed to trial on that theory. The court also reversed the dismissal of Count II and adopted the doctrine of absolute liability for blasting operations, holding that a performer of blasting operations is liable for property damage caused by concussion regardless of negligence.


Key Quotes

“Florida has long recognized the propriety of a third party beneficiary who is not a party to a contract suing for damages as result of the acts of one of the parties to the contract.”

Establishes the legal foundation for third-party beneficiary claims in Florida

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Facts & Procedural History

Hendry Corporation contracted with the United States Government to perform work on a channel near U.S. Highway 41. Plaintiff Morse owned a marina that…

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Opinion of the Court
LILES, Judge.

LILES, Judge.

Appellants, who were plaintiffs in the trial court, brought an action against the defendant Hendry Corporation, seeking damages caused by the blasting operations of the defendant.

Hendry Corporation entered into a contract with the United States Government to perform certain work on a channel running in close proximity with U. S. Highway No. 41 where plaintiff’s property was also located. Plaintiff Morse was the owner of a marina which he leased to Boat Haven Naples, Inc. Both Morse and his lessee were parties plaintiff in this cause of action. Pursuant to the contract, the defendant performed certain blasting operations; and plaintiffs have alleged that ás a result of concussions caused by the blasting operations their property was damaged.

Plaintiffs’ amended complaint contained three Counts. Count I predicated liability on the theory of third party beneficiary, Count II on absolute liability, and Count III on negligence. The trial court granted defendant’s motion to dismiss as to Counts I and II. Plaintiffs attempted to appeal this order and in Morse v. Hendry Corporation, 177 So.2d 31, Fla.App.1965, without prejudice to plaintiffs to raise the assignments of error at the proper time, we held that the order of dismissal was not one from which an appeal could be taken. Plaintiffs then chose not to proceed on the theory of negligence alone and filed an instrument entitled Suggestion of Lack of Evidence as to Negligence. The trial court entered final judgment in favor of defendant, and this appeal followed. The question simply stated here is did the trial court err in dismissing Counts I and II of plaintiffs’ complaint.

*817Florida has long recognized the propriety of a third party beneficiary who is not a party to a contract suing for damages as result of the acts of one of the parties to the contract. Mugge v. Tampa Waterworks Company, 53 Fla. 371, 42 So. 81 (1906) ; Woodbury v. Tampa Waterworks Company, 57 Fla. 243, 49 So. 556 (1909); Di Camillo v. Westinghouse, 122 So.2d 499, Fla.App.1960. Upon examination of the complaint and contract attached thereto, we believe sufficient facts have been alleged for this cause to proceed to trial on the theory of third party beneficiary, and that the court erred in dismissing Count I of plaintiffs’ complaint.

The next question before this court for consideration is presented by Count II and has not been answered by prior Florida decisions. Florida has never decided whether the doctrine of absolute liability should apply in the case of damage to property caused by concussion from a blasting operation. We have recognized implied warranty in the manufacture of goods and have long ago designated automobiles dangerous instrumentalities. While it would not necessarily follow that dynamite is a dangerous instrumentality per se, it is time we examine its use in light of the industrial development of this state. We believe blasting is an ultrahazardous endeavor and that the performer of such hazardous operation should be liable for his acts even when these acts have not been negligently performed. The weight of authority in the United States imposes absolute liability in the performance of blasting by use of dynamite. We believe Florida should follow this theory.

The rule is succinctly set forth in 35 C.J.S. Explosives § 8a, at page 275:

“ * * * one lawfully engaged in blasting is liable, irrespective of negligence, for personal injuries or property damage sustained either as a result of casting material on adjoining land or as the result of concussion.”

We, therefore, adopt this rule in the instant case.

• For the above-mentioned reasons the judgment appealed is reversed and remanded for further proceedings consistent with this opinion.

SHANNON, Acting C. J., and ADAMS, GEO. E., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …ary who is not a formal party to a contract may sue for damages sustained as the result of the acts of one of the parties to the contract. See Weimar v. Yacht Club Point Estate, Inc., 223 So. 2d 100 (Fla.App. 4th, 1969); Morse v. Hendry Corporation, 200 So. 2d 816 (Fla.App. 2d, 1967); DiCamillo v. Westinghouse Electric Corporation, 122 So. 2d 499 (Fla.App. 2d, 1960) (materialman as third party beneficiary); Flintkote Company v. Brewer Co. of Florida, 221 So. 2d 784 (Fla.App. 3rd, 1969) (materialman); Mugge v.…
  • Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980)
    …709 (Fla.2d DCA 1963), cert. denied, 157 So. 2d 818 (Fla.1963). .It is self-evident that the dynamite was known to Marks Brothers to be dangerous in the extreme and thus to involve an “unreasonable risk of harm” to licensees. Morse v. Hendry Corp., 200 So. 2d 816 (Fla.2d DCA 1967). Moreover, even the appellants do not seriously urge that, as a matter of law, they complied with the duty stated in 2 Restatement (Second) of Torts § 342(b) (1965), as an alternative to giving warnings, “to exercise reasonable car…
  • Gallichio v. Corporate Grp. Serv., Inc., 227 So. 2d 519 (Fla. 3d DCA 1969)
    …act which is ostensibly for his benefit has been consistently recognized in this state. Hunter v. Wilson, Stearly & Co., 21 Fla. 250 (1885); Cherry Lake, Inc. v. Kearce, 157 Fla. 484, 26 So. 2d 434 (1946); Morse v. Hendry Corporation, Fla.App. 1967, 200 So. 2d 816. This right has been given liberal scope in Florida. See cases cited at 5 F.L.P. Contracts § 48. We hold that the allegations of the complaint are sufficient to bring the appellant within the third party beneficiary rule and that therefore the compl…
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