Opinion
No. 74-55.
June 26, 1974. Rehearing Denied July 18, 1974.
Appeal from the Circuit Court.
Leo M. Alpert and Jonathan L. Alpert, Miami, for appellants.
Robert C. Lane, Miami, for appellee.
Before PEARSON, CARROLL and HAVERFIELD, JJ.
This is the second appearance of this cause before this court. The plaintiff is appellant here as he was in the first appearance. See Nicholas v. Miami Burgler Alarm Co., Fla.App. 1972, 266 So.2d 64. The first appeal was from a judgment sustaining appellee's motion to dismiss all four counts of appellant's complaint. We remanded the cause with the following directions:
"Therefore, based on the foregoing cases and authorities, we hold that the trial court correctly granted appellee's motion to dismiss the first, second, and third counts of the complaint, but erroneously held as a matter of law that the damages claimed in the fourth count were insufficient to meet the jurisdiction of the circuit court.
"Affirmed in part, reversed in part, and remanded."
The present appeal is from a final judgment for the defendant entered pursuant to a directed verdict upon the fourth count of the complaint. The motion for directed verdict was made and granted at the conclusion of plaintiff's case. We affirm.
It is apparent that appellant proceeded in the trial court upon remand only on the theory that he should be entitled to recover for the burglary or a portion thereof and have punitive damages in addition. Our prior opinion had held that as a matter of law that there could be no recovery for the damages sustained in the burglary. At the trial upon remand, the appellant offered no evidence of any other recoverable damages, therefore, the trial court correctly directed a verdict for the defendant. See McLain v. Pensacola Coach Corporation, 152 Fla. 876, 13 So.2d 221 (1943). In addition, our review of this record convinces us that appellant failed to establish gross negligence or wilful disregard of a duty by the defendant. Such action is necessary for the establishment of punitive damages. See Griffith v. Shamrock Village, Inc., Fla. 1957, 94 So.2d 854.
Affirmed.
I am constrained to dissent.
The majority opinion in this case is based upon this court's determination of appellant's prior appeal in Nicholas v. Miami Burglar Alarm Company, Fla.App. 1972, 266 So.2d 64, wherein the court adopted the principal of law that a burglar alarm company is not liable for a burglary even though its system fails to function properly. I do not quarrel with this principal of law, but rather I believe that it was applied incorrectly to the facts of the instant action. In the case sub judice, the wires to the alarm system were severed and thereupon, as the system was supposed to function, a trouble signal was transmitted to and received by the defendant company. These facts conclusively demonstrate that this cause of action does not involve a system malfunction or spontaneous failure and, therefore, the above principal of law is not pertinent.
The foundation of liability for negligence is knowledge. See 23 Fla.Jur. Negligence § 17 (1959). Further, if the intervening event was foreseeable by the original wrongdoer, then it does not supersede the original negligence. See 23 Fla.Jur. Negligence § 39 (1959). There is evidence contained in the record that upon the receipt of the trouble signal by an employee of the defendant company, the employee did not contact the plaintiff as the defendant-appellee assured him it would nor did he take any affirmative action other than to call the telephone company about the transmission failure.
Therefore, I would remand the cause of action for the jury to determine the issue of defendant-appellee's liability, if any, arising out of the defendant company's failure, after receipt of the trouble signal, to take any affirmative action which possibly could have prevented or interrupted the burglary which was foreseeable under the circumstances.
For in the final analysis, if as a matter of law the defendant burglar alarm company was under no duty to do anything in the instant case (which I believe is the real result of the majority opinion), then plaintiff-appellant is paying for protection which in reality he simply is not receiving.