JARED K. HOHENBERG, ETC., ET AL., APPELLANTS,
v.
ARTHUR KIRSTEIN, III, ET AL., APPELLEES

Fla. 3d DCA | 1977-08-30
No. 76-1868
Before PEARSON, BARKDULL and HAVERPIELD, JJ.
349 So. 2d 765 Florida District Court of Appeal, Third District (1977)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida District Court of Appeal affirmed the trial court's dismissal of negligence counts against a truck owner in a hunting accident where a shotgun discharged and injured the plaintiff. The court found the complaint failed to allege sufficient causal connection between the defendant's negligent operation of the truck and the alleged negligence causing the shotgun discharge.


Holding

The court held that the allegation was insufficient to allege a causal connection between the negligent operation of the truck and the negligence causing the shotgun discharge, thus sustaining the dismissal. The court also held that the plaintiff could not contest the trial court's refusal to permit additional amendments on appeal without first applying for such permission in the trial court.


Headnotes

[1] A complaint must allege a causal connection between the negligent operation of a vehicle and the discharge of a firearm within that vehicle to state a cause of action for…

[2] A party seeking to contest a trial court's refusal to permit an amendment to a pleading must first apply for such right in the trial court before raising the issue on app…

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

Key Quotes

“We hold that this allegation is insufficient to allege a causal connection in the alleged negligent operation of the truck with the alleged negligence that caused the discharge of the shotgun.”

Establishes the core holding that the complaint failed to adequately plead a necessary element of the negligence claim.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

During a hunting expedition, the plaintiff Jared K. Hohenberg was injured when a shotgun owned by the driver of a vehicle was placed in the vehicle lo…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

By this appeal, we are called upon to review the correctness of a trial court’s order dismissing certain counts of a second amended complaint.

The injury involved occurred when the plaintiff, Jared K. Hohenberg, and certain of the defendants were on a hunting expedition, when a shotgun owned by the driver of a vehicle was placed in the vehicle loaded and it discharged, injuring the plaintiff. The principal allegation of negligence in this regard reads as follows:

* * * * * *

“(13) Ducassi was nevertheless so grossly negligent in his operation of the truck and/or in the control of his shotgun that a cartridge was discharged therefrom * * * >>

**

We hold that this allegation1 is insufficient to allege a causal connection in the alleged negligent operation of the truck with the alleged negligence that caused the discharge of the shotgun. Therefore, we sustain the order of the trial court dismissing this cause of action. Tampa Electric Company v. Jones, 138 Fla. 746, 190 So. 26 (1939); Ward v. Everett, 148 Fla. 173, 3 So. 2d 879 (1941); American Casualty Company v. Pearce, 101 So. 2d 440 (Fla. 2d DCA 1958); Raydel, Ltd. v. Medcalfe, 178 So. 2d 569 (Fla.1965).

The other points urged for reversal by the appellant, Jared K. Hohenberg, have been examined and have been found to be without merit. American District Electric Protective Company v. Seaboard Air Line Railway Company, 129 Fla. 518, 177 So. 294 (1937); Carter v. Hector Supply Company, 128 So. 2d 390 (Fla.1961); Brod v. Jernigan, 188 So. 2d 575 (Fla.2d D.C.A. 1966); Nicolaysen v. Flato, 204 So. 2d 547 (Fla. 4th DCA 1967); Vilord v. Jenkins, 226 So. 2d 245 (Fla. 2d DCA 1969); Miami Coin-O-Wash, Inc. v. McGough, 195 So .2d 227 (Fla. 3rd DCA 1967); Wood v. Camp, 284 So. 2d 691 (Fla. 1973); 23 Fla.Jur., Negligence, § 9.

For the first time, on appeal, the appellant contends that he should have been permitted further amendment. We disagree. The appellant had been permitted one amendment; he did not seek any further amendment in the trial court. Usual and customary procedure requires that if a party is going to contest a trial judge’s refusal to permit an amendment he must first apply for such right in the trial court and, then, if reversed, bring the matter to the attention of the appellate court. Margolis v. Klein, 184 So. 2d 205 (Fla. 3d DCA 1966); Ely v. Shuman, 233 So. 2d 169 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.190(a). In Margolis v. Klein, supra, the following is found:

* * * * * *

“ * * * The defendants urged that the trial court erred in failing to permit leave to amend the counter and cross claim. However, we fail to find any application to the trial court in the record to allow such an amendment.

“It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him. Wasserburg v. Coastal Aluminum Products Const. Co., Fla. App.1964, 167 So. 2d 889; Paul v. Kanter, Fla.App.1963, 155 So. 2d 402. This is clearly contemplated by Rule 1.15(a) Florida Rules of Civil Procedure, 30 F.S.A. Therefore, although the counter and cross claim might have been amendable without any application to the trial judge, we are not in a position to hold that error was committed in this regard.”

Therefore, for the reasons above stated, the order under review be and the same is hereby affirmed.

Affirmed.

. In an attempt to state a cause of action against the owner of the truck, under the doctrine of vicarious liability.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited (15 total)

View all 15 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw