United States District Court, S.D. Florida
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, as subrogee, a foreign corporation, Plaintiff,
JOHNSON CONTROLS FIRE PROTECTION LP, formerly known as SimplexGrinnell LP, a foreign limited partnership, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
SECOND AMENDED COMPLAINT
L. ROSENBERG, UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendant's
Motion to Dismiss Plaintiff's Second Amended Complaint.
DE 36. The Court has carefully considered the Motion,
Plaintiff's Response thereto [DE 38], Defendant's
Reply [DE 39], and the record and is otherwise fully advised
in the premises. For the reasons set forth below, the Motion
to Dismiss is granted.
alleges in the Second Amended Complaint that it was the
commercial liability insurer of Empire Roofing Company
Southeast, LLC. DE 35 at 2. On February 29, 2016, an Empire
Roofing employee was performing work at Marina Village at
Grand Harbor Tower II, a condominium, and was walking on the
joists in an attic area above a condominium unit.
Id. While doing so, the employee stepped on a fire
sprinkler system pipe, and the pipe ruptured, causing
widespread water damage throughout the building. Id.
Plaintiff subsequently paid more than $700, 000 for repairs
and damages. Id. at 5.
alleges that the ruptured pipe was made of chlorinated
polyvinyl chloride (“CPVC”), was stamped with the
words “CPVC PIPE FOR UNDERGROUND WATER MAINS, ”
and was inappropriate for use in the building's fire
protection system. Id. at 2. The pipe had been
significantly weakened, a condition that an adequate
inspection of the fire protection system would have revealed.
Id. Proper and adequate piping would not have given
way. Id. at 3.
further alleges that Defendant conducted annual inspections
and testing of Marina Village's fire protection system
for many years. Id. Defendant knew or should have
known that the use of the CPVC piping in the fire protection
system posed risks, and Defendant had a duty to notify the
building's owner that the CPVC pipe was improper and
weakened, but failed to do so. Id. Had Defendant
notified the owner, the owner would have replaced the piping
and would not have placed contractors like Empire Roofing in
harm's way. Id.
brings a negligence claim and a claim of equitable
subrogation against Defendant. Id. at 4-6. For its
negligence claim, Plaintiff contends that, by providing
inspection services to Marina Village, Defendant assumed a
duty to use reasonable care so as not to put “others,
” Marina Village's “invitees, ” and
“members of the public” at risk. Id. at
4. Plaintiff asserts that Defendant breached that duty of
care by failing to notify Marina Village's owner about
the improper and unsafe piping. Id. at 4-5.
Defendant now moves to dismiss the Second Amended Complaint.
may grant a party's motion to dismiss a pleading if the
pleading fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to
dismiss should be granted only when the pleading fails to
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
pleading must contain more than labels, conclusions, a
formulaic recitation of the elements of a cause of action,
and naked assertions devoid of further factual enhancement.
Id. The factual allegations must be enough to raise
a right to relief above the speculative level.
Twombly, 550 U.S. at 555.
ruling on a motion to dismiss, a court accepts as true the
facts alleged in the complaint and draws all reasonable
inferences in the plaintiff's favor. West v.
Warden, 869 F.3d 1289, 1296 (11th Cir. 2017). Dismissal
based on a dispositive issue of law is proper when no
construction of the factual allegations will support the
cause of action. Allen v. USAA Cas. Ins. Co., 790
F.3d 1274, 1278 (11th Cir. 2015).
state a claim of negligence under Florida law, a plaintiff
must allege that the defendant owed the plaintiff a duty of
care, that the defendant breached that duty, and that the
breach caused the plaintiff to suffer damages. Lewis v.
City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir.
2001). The existence of a duty is a matter of law for a court
to decide. McCain v. Fla. Power Corp., 593 So.2d
500, 502 (Fla. 1992). A court may dismiss for failure to
state a claim a complaint that does not establish a duty.
See, e.g., Lamm v. State St. Bank &
Tr., 749 F.3d 938 (11th Cir. 2014) (affirming a
court's grant of a motion to dismiss a Florida negligence
claim for failure to establish a duty)
law “recognizes that a legal duty will arise whenever a
human endeavor creates a generalized and foreseeable risk of
harming others.” McCain, 593 So.2d at 503.
“Where a defendant's conduct creates a foreseeable
zone of risk, the law generally will recognize a duty placed
upon defendant either to lessen the risk or see that
sufficient precautions are taken to protect others from the
harm that the risk poses.” Id. (emphasis and
quotation omitted). “[R]easonable, general foresight is
the core of the duty element.” Id. (stating
that foreseeability “clearly is crucial in defining the
scope of the general duty placed on every person to avoid
negligent acts or omissions”).
courts have identified various tests for determining when a
defendant's conduct creates a “foreseeable zone of
risk.” One test evaluates “the likelihood that a
defendant's conduct will result in the type of injury
suffered by the plaintiff.” Palm Beach-Broward Med.
Imaging Ctr., Inc. v. Cont'l Grain Co., 715 So.2d
343, 345 (Fla. 4th Dist. Ct. App. 1998) (stating that this
test “requires a court to evaluate whether the type of
negligent act involved in a particular case has so frequently
previously resulted in the same type of injury or harm that
in the field of human experience the same type of result may
be expected again” (emphasis and quotation omitted)).
Another test for evaluating foreseeability ...