Estate of Martinez ex rel. Cowan v. Post Buckley Schuh Jernigan, Inc.

881 So. 2d 636, 2004 Fla. App. LEXIS 11745, 2004 WL 1779129

• Court: District Court of Appeal of Florida
• Decided: August 11, 2004
• Docket: No. 3D03-2407
• Status: Published

Opinion

PER CURIAM.

On this appeal from the dismissal of an amended complaint in a child drowning-wrongful death case for failure to state a cause of action, the order under review is vacated and the cause remanded for a determination by the trial court as to whether the building permit and other pertinent documents relating to the construction and maintenance of the lake in which the child drowned create a mandatory slope requirement (which the plaintiffs allege the appellees violated). If the court so finds, or if a jury question is presented on the issue, the complaint should not be dismissed. See Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029 (Fla. 4th DCA 1993), review denied, 639 So.2d 979 (Fla.1994). If, as a matter of law, there is no such mandatory requirement, the motion to dismiss the complaint should again be granted. See Longmore v. Saga Bay Property Owners Ass’n, 868 So.2d 1268 (Fla. 3d DCA 2004); Kaweblum v. Thorn-hill Estates Homeowners Ass’n, Inc., 801 So.2d 1015 (Fla. 4th DCA 2001).

Vacated, remanded with directions.