1. IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
LINDA SMITH,
Plaintiff,
vs.
Civil Action No. XXXXXXXXXX
SAM JOHNSON, and Honorable Judge Mason
KEVIN ROBERTS,
Defendants.
_________________________________/
DEFENDANT ROBERTS’ MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM OR IN THE ALTERNATIVE MOTION FOR A MORE DEFINITE
STATEMENT
COMES NOW Defendant, KEVIN ROBERTS (“Defendant Roberts”), by and through the
undersigned counsel, pursuant to Fla. R. Civ. P. § 1.140 and files this Motion to Dismiss or in the
Alternative, Motion for a More Definite Statement for failure to properly plead the elements of
negligence in the Complaint and as good grounds hereby states the following:
1. Plaintiff, LINDA SMITH (“Plaintiff”), served Defendants, KEVIN ROBERTS, and SAM
JOHNSON, with her Complaint for Damages on January 7, 2016 alleging negligence. See
Plaintiff’s Complaint, marked as Exhibit "A," attached.
2. Plaintiff alleged that she was on public land, precisely the sidewalk, when the dog attacked
her. See Plaintiff’s Complaint, ¶ 16.
3. Plaintiff alleged that Defendant Roberts breached the duty for protection of Plaintiff.
4. According to Superior Garlic Intl v. E & A Produce Corp., the elements of negligence are:
"the existence of a duty recognized by law requiring the defendant to conform to a certain standard
of conduct for the protection of others including the plaintiff; a failure on the part of the defendants
to perform that duty; and an injury or damage proximately caused by such a failure." Superior
Garlic Intl v. E & A Produce Corp., 913 So. 2d 645 (Fla. 3d DCA 2005).
2. Smith v. Johnson and Roberts
Page 2 of 3
5. In order to recover on a negligence claim, Plaintiff must prove that (1) Defendants owed a
legal duty; (2) Defendants breached that duty; (3) Plaintiff suffered injury as a result of that breach;
(4) and the injury caused damage. See Superior Garlic Intl v. E & A Produce Corp., 913 So. 2d
645 (Fla. 3d DCA 2005), citing Jackson v. Sweat, 783 So.2d 1207 (Fla. 1st DCA 2001).
6. In considering the validity of Plaintiff’s Complaint, upon the filing of a Motion to Dismiss
for failure to state a cause of action, the court must "confine strictly to the allegations within the
four corners of the complaint." Pizzi v. Central Bank and Trust Company, 250 So.2d 895, 897
(FIa.1971); Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3d DCA 1981). Looking to
the four corners of the Complaint, it is clear that Plaintiff has failed to properly plead a claim for
negligence as she failed to allege: (1) that Defendant Roberts owed a legal duty to Plaintiff; (2)
how Defendant Roberts breached that duty, (3) that the Plaintiff suffered injury as a result of that
breach, and (4) that the injury caused damage.
7. Plaintiff has failed to allege that Defendant Roberts owed Plaintiff a legal duty.
8. Failure to prove an essential element to a cause of action is always fatal to establishing a
plaintiff's case. Schopler v. Smilovits, 689 So. 2d 1189 (Fla. 4th DCA 1997). Therefore, by not
properly pleading the necessary elements of negligence in Plaintiff's Complaint, Defendant
Roberts is entitled to a dismissal without prejudice or a judgment on the pleadings.
WHEREFORE, Defendant Roberts, respectfully requests this Court Dismiss Plaintiff’s
Claim against Defendant Roberts for failure to state a cause of action upon which relief may be
granted or, in the alternative, grant Defendant Roberts’ Motion for a More Definite Statement.
DATED this 14th
day of January 2016.
3. Smith v. Johnson and Roberts
Page 3 of 3
_________________________________________
James Gettim
Sueem and Gettim Attorneys at Law
411 Las Olas Blvd. Suit 301.
Fort Lauderdale, Florida 33301
FL Bar No. XXXXXXXXXX
Attorney for Defendant Kevin Roberts
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy has been provided by electronic mail on this 19th
day
of February, 2016, to:
Joshua Wieczorek
Joshua D. Wieczorek, Esq.
PO Box 30082
Fort Lauderdale, Florida 33303
FL Bar No. 89883100
Attorney for Plaintiff
James GetimJames Getim
5. IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
LINDA SMITH,
Plaintiff,
vs.
SAM JOHNSON, and
KEVIN ROBERTS,
Defendants.
_________________________________/
CIVIL COMPLAINT
COMES NOW the Plaintiff, LINDA SMITH (“Plaintiff”), by and through the undersigned
counsel hereby files this complaint against Defendants SAM JOHNSON (“Defendant Johnson”),
and KEVIN ROBERTS (“Defendant Roberts”) (collectively “Defendants”), and further alleges:
JURISDICTION
1. The amount in controversy in this matter exceeds $15,000.
2. Plaintiff is a citizen and resident of the City of Fort Lauderdale, County of Broward, and State
of Florida.
3. Defendants are both citizens and residents of the City of Fort Lauderdale, County of Broward,
and State of Florida.
4. All relevant events occurred in the City of Fort Lauderdale, County of Broward, and State of
Florida.
5. This court has jurisdiction over the subject matter of this action and over the person of all
parties. Venue is properly laid in this court.
STATEMENT OF FACTS
6. On or about July 21, 2015, at approximately 8:15 a.m., Plaintiff was walking southbound down
the sidewalk of NW 15th
Avenue, close to 10th
Street in Fort Lauderdale, Broward County.
Plaintiff was accompanied by Danny Davidson (“Davidson”).
7. Davidson noticed a dog sleeping next to a doghouse that appeared to be adequately secured to
the doghouse by a chain. The dog and doghouse were located on private property owned by
Defendant Roberts. Davidson began coercing a response from the dog. As a result, the dog
responded by playfully interacting with Davidson for approximately three minutes.
6. 8. Subsequently, dog the followed after and chased Davidson as he returned to the sidewalk to
rejoin Plaintiff, who was standing on the sidewalk while Davidson was playing with the dog.
At no time did Plaintiff enter onto Defendant Roberts property.
9. In the course of the dog chasing Davidson, the dog’s chain broke. The dog then attacked
Plaintiff, biting her on her lower lip.
COUNT I — NEGLIGENCE
10. Plaintiff re-alleges and incorporates by reference the allegations stated in paragraphs one (1)
through nine (9) and further alleges:
11. Defendants were negligent, careless, reckless and grossly negligent in adequately,
sufficiently, and properly securing the dog to remain within the constraints and limits of
Defendant Robert’s property.
12. Defendants breached this duty by allowing the dog to break loose from the doghouse and attack
Plaintiff, piercing and disfiguring her lower lip. Subsequently Plaintiff, suffered a severe
concussion.
13. As direct and proximate cause of the Defendants' acts and omissions, negligence as alleged
herein, Plaintiff has suffered injuries and damages, which include a pierced, torn, and
disfigured lower lip, as well as a severe concussion.
COUNT II — DOG BITE NEGLIGENCE
14. Plaintiff re-alleges and incorporates by reference the allegations stated in paragraphs one (1)
through nine (13) and further alleges:
15. As direct and proximate cause of the Defendant Roberts’ acts and omissions in violation of
F.S. §767.04, the following are alleged herein:
16. Defendant Roberts’ dog, while on public land attacked, bit and harmed Plaintiff while she
stood on the public sidewalk of NW 15th
Avenue, close to 10th
street.
17. Plaintiff contributed in no way to incite the dog or procure the following injuries to herself
which include: a pierced, torn, and disfigured lower lip and a severe concussion.
18. All damages sustained by Plaintiff are direct and proximate cause of the Defendant Roberts’
acts and omissions in violation of F.S. §767.04.
WHEREFORE, Plaintiff prays for judgment against Defendants and for an award of
compensatory and punitive damages, recovery of all costs allowed by law, such other and further
relief as may be proper and also demands trial by jury.
DATED this 7th
day of January 2016.
