DAVID JOHNSON, APPELLANT,
v.
DUSTIN RUFFINO, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, JOHN RUFFINO, ET AL., APPELLEES
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Florida appellate court affirmed dismissal of third-party complaint as moot because the defendant subsequently incorporated the same claims against the third-party defendant via cross-claim after plaintiff amended the complaint to name that defendant directly.
Dismissal of a third-party complaint is harmless error when the defendant can pursue identical claims via cross-claim after the plaintiff amends the complaint to name the third-party defendant as a co-defendant.
[1] Dismissal of a third-party complaint becomes moot when the plaintiff amends the complaint to name the third-party defendant as a co-defendant, allowing the defendant to p…
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Join FLexlaw to unlock all legal intelligenceDustin Ruffino, a minor, sued Dave Johnson and State Farm for injuries sustained when a defective saw with a failed anti-kickback device caused plexig…
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PER CURIAM.
Appellant seeks review of an order dismissing his third party complaint.
Plaintiff, Dustin Ruffino, a minor, by and through his father and next friend, John Ruffino, filed a complaint for damages against Dave Johnson and State Farm Fire and Casualty Company for personal injuries received when Dave Johnson was sawing plexiglass and a piece thereof struck the minor plaintiff as he stood in Johnson’s garage and watched him. Defendant Johnson, appellant herein, answered and thereafter filed a third party complaint for indemnity against Sears, Roebuck & Company which retailed and/or distributed and/or manufactured the saw which Johnson was using at the time of the accident. Johnson alleged therein that the accident was due solely to the defective design and manufacture of the saw in that the anti-kickback device thereof designed to prevent materials being sawed from kicking out failed to function.
In response thereto, Sears, the third party defendant, appellee herein, moved to dismiss the third party complaint. The trial court entered its order of dismissal and Johnson appeals therefrom.
The plaintiffs having filed an amended complaint naming Sears, Roebuck & Company as a co-defendant and appellant Johnson having answered and having incorporated a cross-claim against Sears, Roebuck & Company, we conclude this appeal presents a moot question as the herein appealed order, if error, was at most harmless in light of the above pleadings.
NATHAN, Judge
(specially concurring).
I agree that the present appeal is moot, however, I would hold that the appellant did have a valid third party complaint at the time of the filing of such complaint. See Peoples Gas System, Inc. v. B & P Restaurant Corp., Fla.App.1973, 271 So. 2d 804 and Stuart v. Hertz Corporation, Fla.App.1974, 302 So. 2d 187, 190.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Frank M. Stuart, M.D., P.A. v. The HERTZ Corp., 302 So. 2d 187 (Fla. 4th DCA 1974)
- Peoples GAS Sys., Inc. v. B & P Rest. Corp., 271 So. 2d 804 (Fla. 3d DCA 1973)