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Florida First DCA affirms summary judgment for defendant based on plaintiff’s failure to specifically plead defendant’s vicarious liability in complaint

On January 29, 2021, in Wilson v. Jacks, No, 1D20-461, the Florida First DCA affirmed a summary judgment order for the defendant in a negligence case involving a fire allegedly started on the defendant’s property which spread to the plaintiff’s property.  The fire was started by laborers who the defendant had paid to erect cattle fencing. The plaintiff alleged in his complaint that the defendant owed a duty to the plaintiff to control the fire and that she breached the duty by failing to do so.  The complaint did not specifically allege that the defendant was vicarious liable for the actions of the laborers.  The threshold issue before the First DCA was whether the trial court erred in considering only the theory that the defendant was individually responsible for the fire. The plaintiff claimed that even if the vicarious liability claim was not alleged in the complaint itself, the issue was properly before the trial court based on an affirmative defense raised in the defendants’ answer to the complaint which alluded to third-party liability.  The First DCA disagreed, citing Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990), for the proposition that a claim of vicarious liability must be specifically pleaded in the complaint to be considered at a summary judgment hearing.