FELIX KELLY, AS ADMINISTRATOR OF THE ESTATE OF ALICE V. KELLY, APPELLANT,
v.
KOPPERS COMPANY, INC., A FOREIGN CORPORATION LICENSED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE
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An administrator of an estate appealed a trial court's dismissal of a negligence and implied warranty suit against a paint manufacturer whose swimming pool paint allegedly contributed to a tenant's drowning at a Holiday Inn. The appellate court affirmed the dismissal, finding the causal link too remote and the breach of warranty claim insufficiently pleaded.
The court affirmed the dismissal, holding that: (1) the proximate cause of Kelly's death was too remote to state a cause of action against Koppers; (2) violation of health department regulations regarding pool coloring does not create a private cause of action as those regulations address sanitation and cleanliness, not safety; and (3) the implied breach of warranty claim was insufficient because the complaint contained no allegation that the paint was inherently defective, dangerous, or unsuited for its intended purpose.
[1] A plaintiff's complaint may be dismissed with prejudice if the proximate cause of the alleged injury is too remote to state a cause of action.
[2] Regulations promulgated by the State Board of Health concerning swimming pool colors are intended for sanitation, healthfulness, and cleanliness, not to prevent drowning.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the proximate cause of the death of Ms. Kelly is too remote to state a cause of action against the defendant Koppers Company, Inc.”
The court's primary basis for affirming dismissal, applying proximate causation doctrine to find the causal chain between the manufacturer's conduct and the drowning was too attenuated.
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Join FLexlaw to unlock all legal intelligenceAlice Kelly drowned in a Holiday Inn swimming pool that had been painted with a mural design manufactured and promoted by Koppers Company, Inc. The po…
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PER CURIAM.
Plaintiff-appellant takes this appeal to review an order of the trial court dismissing his second amended complaint with prejudice.
Plaintiff, as administrator of the estate of Alice Kelly, filed suit against the defendant Koppers Company, Inc. and sought damages in excess of $2,500 for (1) negligence and (2) implied breach of warranty. In essence the compiáint alleged the following: that the defendant, a manufacturer of swimming pool paints, promoted the painting of swimming pools with murals or designs which were the creation of the defendant. As a result of these promotional efforts, Holiday Inn caused its pool to be painted with one of the defendant’s designs or murals in violation of the rules and regulations of the State Board of Health. Thereafter, Alice Kelly, a tenant of the Holiday Inn, while swimming in this pool drowned and after a protracted period of time was discovered by an employee of the Holiday Inn who then secured help in removing her; that if the pool had not been painted so as to camouflage her, other tenants would have observed her difficulty and removed her from the pool prior to her drowning; that Alice V. Kelly sustained pain, shock, physical and mental anguish prior to her death.
Appellant contends that the trial court erred in dismissing his complaint with prejudice. We cannot agree.
First, we find from the allegations of this second amended complaint that the proximate cause of the death of Ms. Kelly is too remote to state a cause of action against the defendant Koppers Company, Inc. See 23 Fla.Jur. Negligence §§ 25-32 (1959). Second, plaintiff-appellant’s reliance upon the violation of the Department of Health’s regulation, Rule 170C-3.-07, requiring the floors and walls of swimming pools to be light in color is misplaced as these rules and regulations are promulgated for the purposes of sanitation, healthfulness, and cleanliness. See Fla. Stat. § 514.02, F.S.A. Third and last as to the implied breach of warranty count, we conclude that the complaint is insufficient to state a cause of action for there is absent any allegation that the paint was inherently defective or dangerous or not suited for the purpose for which it was manufactured. Cf. Royal v. Black and Decker Manufacturing Company, Fla.App. 1967, 205 So. 2d 307.
For the reasons cited hereinabove, the order of the trial court herein appealed is affirmed.
Affirmed.
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H. K. Corp. v. Est. OF George W. Miller & Helen Miller, 405 So. 2d 218 (Fla. 3d DCA 1981)…cert. denied, 368 So. 2d [*220] 1367 (Fla.1979) (statute requiring public lodging and food service establishments to be properly plumbed, lighted, heated, cooled and ventilated was designed to protect public in general); Kelly v. Koppers Co., Inc., 293 So. 2d 763 (Fla.3d DCA), cert. denied, 302 So. 2d 415 (Fla.1974) (statute requiring floors and walls of pools to be light in color was promulgated for purposes of sanitation, health and cleanliness, not the protection of a class of persons). Affirmed.…
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Kelly v. Kelly, 302 So. 2d 415 (Fla. 1974)…Certiorari denied. 293 So. 2d 763. ADKINS, C. J., and BOYD, McCAIN, DEKLE, and OVERTON, JJ., concur.…
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First Overseas Inv. Corp. v. Ola Ann Cotton and Levornia Jean Cotton, 491 So. 2d 293 (Fla. 3d DCA 1986)…igence per se. We found in H.K. Corp., 405 So. 2d at 219, that the rule “obligated the hotel to protect a particular class of persons (swimming pool divers), from a particular type of harm (hitting the bottom of the pool).” Cf. Kelly v. Koppers Co., 293 So. 2d 763 (Fla. 3d DCA) (HRS rule requiring floors and walls [*296] of swimming pools to be light in color was promulgated for purposes of sanitation, health and cleanliness, and not for safety purposes), cert. denied, 302 So. 2d 415 (Fla.1974). Therefore, we…
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- Lona Mae Royal v. The Black & Decker Mfg. Co., 205 So. 2d 307 (Fla. 3d DCA 1967)