PLAINTIFF MUST SPECIFICALLY PLEAD VICARIOUS LIABILITY TO AVOID SUMMARY JUDGMENT
Wilson v. Jacks, 46 Fla. L. Weekly D269 (Fla. 1st DCA January 29, 2021):
The plaintiff and the defendant were neighbors and the suit was based on a fire that started on the defendant’s property and spread to the plaintiff’s property. There was no dispute that the defendant did not take any action to start the fire in her individual capacity. Instead the fire had been started by workers on the defendant’s property who had been contracted to build cattle fencing, and were using small fires as a tool to remove stumps.
Despite the lack of individual involvement, the plaintiff’s complaint only included a single claim of negligence contending that the defendant owed a duty to plaintiff to control the fires she started on her property, and further alleging that defendant breached her duty by not controlling the fires she started. The plaintiff’s complaint did not reference any third parties, nor did it attempt to raise as a claim for relief that defendant was liable for the actions of any others. Because the complaint only alleged individual negligence on defendant’s part, and because it was not disputed that defendant was not individually responsible for the alleged negligent use of the fire on her property, the trial court granted the motion for summary judgment.
The court agreed with the defendant that summary judgment was properly entered. A claim for vicarious negligence must be specifically pleaded in the complaint to be considered in avoiding summary judgment. The court also agreed with the summary judgment because the only claim offered in the plaintiff’s complaint as a basis for relief, argued that the defendant started the offending fire in her individual capacity, and did not dispute that the defendant was not responsible in such a capacity.