ARLEEN S. RICE, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIAN RICE, DECEASED, APPELLANT,
v.
HENRY WALKER AND PEGGY JEAN WALKER, D/B/A HOBBY WORLD, AND JAY GREENE AND ROCHELLE GREENE, D/B/A MODELS, APPELLEES
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The court held that the complaint's allegations of product defects were insufficient to state a cause of action against the retailers without specific facts detailing the defects.
[1] A complaint alleging a product is a dangerous instrumentality must state facts demonstrating how the product, as manufactured, was defective or dangerous, or how it could…
[2] A plaintiff must allege facts showing a latent characteristic or deviation from industry standards to establish a product defect claim.
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Join FLexlaw to unlock all legal intelligenceA decedent was electrocuted when a model airplane contacted an overhead power line. The plaintiff sued the retailers who sold components of the airpla…
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PER CURIAM.
Appellant filed a wrongful death action against the above-named appellees and others. By two orders the amended complaint was dismissed with prejudice as to the above-named appellee-defendants. The plaintiff has appealed from those orders and an order denying plaintiff’s motion for rehearing. The plaintiff’s decedent was killed by electrocution. That unfortunate circumstance resulted when a gas-powered model airplane with steel control wire, while being operated by him, came into contact with an overhead electric power line. The appellees were retailers who sold components of the equipment to a friend of the user. In seeking recovery from the retailers, the plaintiff alleged the products or components thereof were defective in manufacture. See West v. Caterpillar Tractor Company, Inc., 336 So. 2d 80 (Fla.1976). Without pointing out such defects, plaintiff alleged they constituted dangerous instrumentalities in that they were not so constructed as to prevent or guard against electrocution of the user. It was alleged the items when sold by appellees were in the sealed cartons in which they were received from the manufacturers, and it was alleged the purchased articles were unchanged. The trial court found the allegations were insufficient to state a cause of action against the appellees. That ruling was not error, in view of the decision of this court in Royal v. Black & Decker Manufacturing Co., 205 So. 2d 307 (Fla. 3d DCA 1968). See West v. Caterpillar Tractor Company, Inc., supra, 336 So. 2d 80, 87 (Fla.1976).
Royal was a wrongful death action. In that case the plaintiff’s decedent was killed by electrocution when he plugged an electrical power tool into the socket of a live electric extension cord. In affirming an order of dismissal, this court said:
“In the case at bar, the plaintiff has failed to allege any facts from which reasonable.men might conclude that the plug was unreasonably dangerous or defective. No allegations of any latent characteristics are made or of any deviation from the norm, either in comparison with similar plugs or in comparison with those customarily used for similar purposes. There are similarly no allegations that the plug did not meet the standards of the industry or that its design contained a latent functional defect.’’
Similarly here, while the plaintiff alleged various components including the hand-held control unit or mechanism were unsafe, the facts constituting such defects were not stated nor did the plaintiff allege facts showing how, as made, any such components were defective or dangerous to the user, or how they reasonably could or should have been made safe. In the absence thereof, the case of Royal is controlling. In argument of the appeal before this court reference was made to features of the components, including the grip or control mechanism, as having been constructed in a manner which subjected the user to dangers in certain respects, but those facts were not included in the complaint.
If plaintiff has knowledge of facts as to a dangerous condition of such items, allegation of the presence of which was held in Royal to be essential in such a case, it would serve the best interests of justice for the plaintiff to be allowed to further amend by adding such allegations to the complaint as now amended.
The judgment of dismissal as to these defendants is affirmed, but the dismissal is to be without prejudice, and the cause is remanded with direction to enter an order granting leave to the plaintiff to further amend within a time to be fixed by the court.
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Citator
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Arleen S. Rice v. Fla. Power & Light Co., 363 So. 2d 834 (Fla. 3d DCA 1978)…favor of U.M. Rist v. Florida Power & Light Company, supra; Simon v. Tampa Electric Company, supra; Somers v. Meyers, supra; Quinelly v. Southern Maid Syrup Company, supra. Affirmed. . This court recently decided a related appeal, Rice v. Walker, 359 So. 2d 891 (Fla.3d DCA 1978). . Appellant also contends that genuine issues of material fact remain unresolved as to whether FPL was negligent in placing the lines originally, and in creating and maintaining a latent, hazardous condition which was foreseeable…
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Husky Indus., Inc. v. Black, 434 So. 2d 988 (Fla. 4th DCA 1983)…a manufacturer is not an insurer, Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla.1979); West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla.1976); and second, a manufacturer does not have to make a product accident proof, Rice v. Walker, 359 So. 2d 891 (Fla. 3d DCA 1978); Royal v. Black & Decker Manufacturing Co., 205 So. 2d 307 (Fla. 3d DCA 1978); Builders Shoring & Scaffolding Equipment Co. v. Schmidt, 411 So. 2d 1004 (Fla. 5th DCA 1982). Accord, Hunt v. Blasius, 74 Ill.2d 203, 384 N.E. 2d 368,…
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Adobe Bldg. Ctrs., Inc. v. Reynolds, 403 So. 2d 1033 (Fla. 4th DCA 1981)…s although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. . But see Rice v. Walker, 359 So. 2d 891 (Fla. 3d DCA 1978), cert. denied, 367 So. 2d 1127 (Fla.1979) (allowing amendment of complaint which failed to state cause of action in strict liability against retailer because it lacked allegations showing how components were defective); Knipp v. W…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976)
- Lona Mae Royal v. The Black & Decker Mfg. Co., 205 So. 2d 307 (Fla. 3d DCA 1967)