Court Dismisses Appeal Due to Plaintiff’s Failure to Plead Alternative Theory of Liability Below

When a plaintiff files a Florida personal injury claim, it is imperative that they name all of the potentially liable parties and include all of the relevant theories of liability as soon as practicable. This often means conducting a thorough investigation prior to filing the lawsuit in order to make sure that a plaintiff has all of the information to properly file a case. Of course, it is possible to amend a complaint after it is initially filed for a short time; however, if a plaintiff waits too long to amend a complaint, they will be stuck with what was initially pleaded.

Empty Swimming PoolThis can create several problems for Florida personal injury plaintiffs. For example, the trial judge can only instruct the jury on the allegations contained in the plaintiff’s complaint. Thus, even if a plaintiff uncovers evidence during the trial that may help them prove liability through an unpleaded theory, they may be prevented from doing so. A recent premises liability case issued by a state appellate court illustrates how exacting appellate courts can be when interpreting the allegations of a plaintiff’s initial complaint.

The Facts of the Case

The plaintiff was an investor looking to buy a rental property through the defendant realtor. One of the defendant’s listings was a home that had a pool in the back yard. The defendant contacted a pool maintenance company and performed the necessary maintenance to the pool prior to listing the home.

One day, the defendant arranged for the plaintiff to come see the home. The plaintiff toured the home and then exited to examine the back yard and pool area. The plaintiff wanted to see what was beyond the home’s fence line, so he climbed atop the diving board connected to the pool. As he did so, the diving board broke, sending the plaintiff into the empty pool. He was seriously injured as a result of the fall and filed a personal injury case against the defendant. The plaintiff’s claim was that the diving board was an unreasonably dangerous condition that the defendant should have remedied prior to showing the home.

The trial court rejected the plaintiff’s claim, explaining that nothing about the diving board indicated that it was in disrepair, and the defendant could not be held liable because the diving board’s failure was unforeseeable. The plaintiff appealed.

On appeal, the plaintiff argued that the swimming pool was unreasonably dangerous and that the defendant failed to properly secure the area around the pool. However, the appellate court refused to consider the plaintiff’s argument, noting that it was raised for the first time on appeal. The appellate court explained that the plaintiff’s initial claim involved the diving board, and the appellate issue involved the swimming pool as a whole. This was not permitted under the rules of appellate procedure, and the plaintiff’s appeal was dismissed.

Have You Been a Victim of a South Florida Slip-and-Fall Accident?

If you or a loved one has recently been injured in any kind of South Florida slip-and-fall accident, you may be entitled to monetary compensation. The skilled South Florida personal injury attorneys at the law firm of Friedman, Rodman & Frank have extensive experience handling a wide range of personal injury cases, and we know what it takes to succeed on our clients’ behalf. To schedule a free consultation to discuss your case with a dedicated South Florida personal injury attorney, call 877-448-8585 today.

More Blog Posts:

Establishing Causation in South Florida Car Accidents, South Florida Personal Injury Lawyers Blog, published August 24, 2017.

Pre-Suit Requirements in Florida Personal Injury Cases Naming Government Defendants, South Florida Personal Injury Lawyers Blog, published September 7, 2017.

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