FRED'S EXCAVATING & CRANE SERVICE, INC., A FLORIDA CORPORATION, APPELLANT,
v.
THE CONTINENTAL INSURANCE COMPANY, A CORPORATION, AND BUCYRUS-ERIE COMPANY, INC., ET AL., APPELLEES
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PER CURIAM.
This is an appeal from an order of the circuit court of Orange County dismissing, for failure to state a cause of action, Counts III and Count IV of Appellant’s third amended complaint. Appellant declined to further amend its complaint and the dismissals were with prejudice.
We find no error in the trial court’s dismissal of Count III, which attempted to allege a cause of action for breach of an implied warranty of fitness for a particular purpose, because Count III fails to allege a particular or unusual use different from the purpose for which the item sold is ordinarily used. However, as to Count IV, we find that it sufficiently alleges a cause of action for negligence and hold that the trial court erred in dismissing Count IV.
REVERSED IN PART; AFFIRMED IN PART, and remanded for further proceedings consistent with this opinion.
MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.
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Sheldon "Skip" Taylor v. British Leyland Motors, Inc., 383 So. 2d 768 (Fla. 3d DCA 1980)…2d 55 (Fla. 3d DCA 1963); Barry v. Ivarson Incorporated, 249 So. 2d 44 (Fla. 2d DCA 1971); Poliakoff v. National Emblem Insurance Company, 249 So. 2d 477 (Fla. 3d DCA 1971); Fred’s Excavating & Crane Service, Inc., v. Continental Insurance Company, 340 So. 2d 1220 (Fla. 4th DCA 1976); King Broadcasting Co. v. Programs for Television, Inc., 38 Misc.2d 536, 237 N.Y.S.2d 41 (1963).…