CLARENCE JACKSON AND ETHEL JACKSON, INDIVIDUALLY, AND AS PARENTS OF DEBORAH ANN JACKSON, A MINOR DECEDENT, AND WILLIE ROY JACKSON, ADMINISTRATOR TO BE APPOINTED ON BEHALF OF THE ESTATE OF DEBORAH ANN JACKSON, APPELLANTS,
v.
PALM BEACH COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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The court held that while the complaint failed to state a cause of action, the plaintiffs should have been granted leave to amend.
Plaintiffs' amended complaint was dismissed without leave to amend. The complaint alleged negligence against the defendant regarding a decedent's stat…
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This is an appeal from an order of the trial court which dismissed plaintiffs’ amended complaint without providing leave to amend.
The trial court correctly determined that plaintiffs’ complaint failed to state a cause of action. More particularly, we agree that the allegations as to the decedent’s status, the duty owed to her, and the defendant’s negligence were totally inadequate. Further, there was no pleading basis advanced whereby immunity vel non could be determined as it was not shown that the county’s operation of the lake in question was conducted in a proprietary or a governmental capacity. Ground two of defendant’s motion to dismiss lacked merit, at least at this stage of the proceedings.
From a careful survey of the complaint and the inferences to be gained from it, we believe that plaintiffs should be allowed an additional opportunity to amend, hopefully with better preparation and advice. 25 Fla.Jur., Pleadings, §§ 102, 104, and 105. We express no opinion as to whether such effort will, or should be, successful— only that they should have another chance to properly state their grievance.
The order of dismissal is affirmed. The failure to give leave to amend is reversed and the case remanded for further proceedings consistent herewith.
Affirmed in part, reversed in part.
REED, C. J., and WALDEN and OWEN, JJ., concur.
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Ellmer v. The City OF ST. Petersburg, 378 So. 2d 825 (Fla. 2d DCA 1979)…n him the opportunity to amend his complaint. Ordinarily this is so where there is any likelihood that a plaintiff can amend so as to state a cause of action. Slavin v. McCann Plumbing Company, 73 So. 2d 902 (Fla.1954); Jackson v. Palm Beach County, 265 So. 2d 713 (Fla. 4th DCA 1972). Here, however, the whole thrust of the complaint was that in violation of a duty to warn him away the city negligently permitted the unsuspecting plaintiff to proceed into the riot area to his detriment. In view of the conclusio…