Bryant ex rel. Bryant v. Pistulka

366 So. 2d 479, 1979 Fla. App. LEXIS 13955

• Court: District Court of Appeal of Florida
• Decided: January 11, 1979
• Docket: No. JJ-399
• Status: Published

Opinion

PER CURIAM.

This is an appeal from a final order of the Circuit Court of Duval County dismissing plaintiffs’ second amended complaint with prejudice.

In their second amended complaint appellants sought damages for alleged negligence against sixteen defendants. Since the filing of this appeal, appellants have settled with fourteen of the original defendants and the appeal has been dismissed as to them, leaving only the original defendants, Pistulka and White, as appellees.

The second amended complaint contained eight counts, only five of which are now pertinent, viz counts one, two, three, seven and eight. We reverse as to counts one, two, seven and eight, and affirm as to count three. In so doing we hold that counts one, two, seven and eight each states a cause of action sufficient to withstand a motion to dismiss but that count three must fall because it is erroneously predicated upon an alleged violation of Section 562.11 F.S. (1973) which statute was designed only to regulate licensed vendors of alcoholic beverages upon the licensed premises of such vendors. State v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA, 1977); United Services Automobile Association et al. v. Butler, 359 So.2d 498 (Fla. 4th DCA, 1978). Therefore, as to count three of the second amended complaint, the learned trial court was eminently correct in dismissing same with prejudice, inasmuch as it is impossible for appellants to base a cause of action upon that statute.

Reversed as to counts one, two, seven and eight. Affirmed as to count three. Remanded for further proceedings consistent herewith.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., .Associate Judge, concur.