Opinion
No. 76-71.
December 17, 1976.
Appeal from the Circuit Court, Orange County, Thomas E. Kirkland, J.
William Murrell, Jr., and William R. Lyle, Jr., Murrell, Lyle Associates, Orlando, for appellant.
Nicholas Yonclas, of Akerman, Senterfitt Eidson, Orlando, for appellees-Employers Mutual Liability Ins. Co. of Wisconsin and Bucyrus-Erie Co., Inc.
This is an appeal from an order of the circuit court of Orange County dismissing, for failure to state a cause of action, Counts III and Count IV of Appellant's third amended complaint. Appellant declined to further amend its complaint and the dismissals were with prejudice.
We find no error in the trial court's dismissal of Count III, which attempted to allege a cause of action for breach of an implied warranty of fitness for a particular purpose, because Count III fails to allege a particular or unusual use different from the purpose for which the item sold is ordinarily used. However, as to Count IV, we find that it sufficiently alleges a cause of action for negligence and hold that the trial court erred in dismissing Count IV.
REVERSED IN PART; AFFIRMED IN PART, and remanded for further proceedings consistent with this opinion.
MAGER, C.J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.