Amoroso v. Samuel Friedland Family Enterprises

• Decision Date: 08 April 1992
• Docket Number: No. 90-2773,90-2773
• Citation: 604 So.2d 827
• Parties: Paula AMOROSO and Robert Amoroso, her husband, Appellants, v. SAMUEL FRIEDLAND FAMILY ENTERPRISES, d/b/a the Diplomat Hotel, Inc., a Florida corporation; the Diplomat Hotel, Inc., a Florida corporation; Sunrise Water Sports, Inc., a Florida corporation; William Thoral, as the last known director and officer of Sunrise Water Sports, Inc., Atlantic Sailing Center, Inc., a Florida corporation; Florida Insurance Guarantee Association, Inc.; Robin Rhodenbaugh; Mistral, Inc., a Florida corporation; Nautilis, Inc., a Florida corporation; and Rhodenbaugh's Sheet Metal Repairs, Inc., a Florida corporation, Appellees. 604 So.2d 827, 17 Fla. L. Week. D2348, 17 Fla. L. Week. D889, 18 UCC Rep.Serv.2d 1096, Prod.Liab.Rep.(CCH)P. 13,206
• Court: Florida District Court of Appeals

Page 827

604 So.2d 827

Paula AMOROSO and Robert Amoroso, her husband, Appellants, v. SAMUEL FRIEDLAND FAMILY ENTERPRISES, d/b/a the Diplomat Hotel, Inc., a Florida corporation; the Diplomat Hotel Inc., a Florida corporation; Sunrise Water Sports, Inc., a Florida corporation; William Thoral, as the last known director and officer of Sunrise Water Sports, Inc., Atlantic Sailing Center, Inc., a Florida corporation; Florida Insurance Guarantee Association, Inc.; Robin Rhodenbaugh Mistral, Inc., a Florida corporation; Nautilis, Inc., a Florida corporation; and Rhodenbaugh's Sheet Metal Repairs Inc., a Florida corporation, Appellees.

No. 90-2773.

604 So.2d 827, 17 Fla. L. Week. D2348, 17 Fla. L. Week.

D889,

18 UCC Rep.Serv.2d 1096,

Prod.Liab.Rep.(CCH)P. 13,206

District Court of Appeal of Florida Fourth District.

April 8, 1992.

On Motion for Rehearing Oct. 14, 1992.

C. Robert Murray of Canning, Murray & Feltz, P.A., Miami, for appellants.

Richard A. Sherman and Rosemary B. Wilder of Law Offices of Richard A. Sherman, P.A., and Gregg J. Pomeroy of Pomeroy & Pomeroy, P.A., Fort Lauderdale, for appellees--Samuel Friedland Family Enterprises, Diplomat Hotel, Inc., Bill's Sunrise Boat Rentals-Sunrise Water Sports, Inc., Sunrise Water Sports, Inc., and William Thorla.

David L. Wills of Vernis & Bowling, P.A., Fort Lauderdale, for Rhodenbaugh and FIGA.

Bill Ullman, Miami, for Atlantic Sailing Center, Inc.

WARNER, Judge.

Appellants claim that the trial court erred in directing a verdict against them in this negligence/products liability case. We affirm in part and reverse in part.

Appellants, Mr. and Mrs. Amoroso, were guests at the Diplomat Hotel in Hollywood, Florida. During their stay they decided to rent a sailboat. The sailboat stand was located on the Diplomat's premises and was advertised in the guest rooms. Reservations were made through the hotel telephone system, and charges for the rentals were billed to the hotel rooms. However, the sailboats were owned by Sunrise Water Sports, Inc. (Sunrise) which contracted with the Diplomat to operate the rental stand. Sunrise in turn had an arrangement with Atlantic Sailing Center, Inc. to handle the rentals. Atlantic was organized to operate the rental business at the Diplomat.

Mr. Amoroso had rented sailboats two times previously from the stand without incident. On the third time Mr. Amoroso arranged for a sailboat rental, a crossbar on the sailboat broke, causing the mast to fall, striking Mrs. Amoroso. As a result of injuries sustained, the Amorosos filed suit against the Diplomat, Sunrise, Atlantic, and a welder who had repaired the crossbar a few days before the accident. The sixth amended complaint alleged causes of action for negligent repair and maintenance, breach of implied warranties of fitness and merchantability, and strict liability against Diplomat, Sunrise, and Atlantic. The complaint alleged negligence against the welder.

At trial, the Amorosos offered several experts. While much of their testimony was excluded by the trial judge for various reasons, an expert on marine accidents was permitted to testify that in his opinion the cracked crossbar which had been welded together before the accident should have been replaced rather than repaired, because the bar was subject to a lot of stress in sailing and could not take such stress with the weld. The welder also testified that the crossbar failed right next to the weld, and that in some cases the area next to the weld is weakened by the weld. Finally, the testimony established that the accident occurred as a result of the crossbar breaking.

The trial court directed a verdict in favor of Atlantic and against appellants on the ground that Atlantic was at most the agent of Sunrise and that anything it did should be held against Sunrise as the principal. He next directed a verdict on the implied warranty counts without specifically addressing the implied warranty of fitness for ordinary use or merchantability. Next, the court directed a verdict in favor of the welder on the grounds that there was no evidence presented that the weld was negligently done, and there was no legal duty on the welder to advise Atlantic or Sunrise that the crossbar had to be replaced rather than repaired. As to the strict liability counts, the trial court stated that "there is no such thing as strict liability" and directed a verdict. From the reading of all of the arguments, we believe that the court was of the opinion that the doctrine of strict liability would not apply in cases of rentals. The trial court also directed a verdict in favor of the Diplomat Hotel on the ground that there was not a joint venture or apparent authority established between the Diplomat and Sunrise or Atlantic to hold the Diplomat liable. Finally, the judge directed a verdict in favor of Sunrise on the negligence claim because, as he read the complaint, he thought appellants were suing the Diplomat in the negligence count (count IV). Thus, he did not rule directly on whether there was sufficient evidence of negligent maintenance or repair to go to the jury.

The appellants raise several points on appeal. First, they claim that the trial court erred in directing a verdict as to Diplomat, Sunrise, and Atlantic because the evidence was sufficient to show either an actual or apparent agency relationship between them. Second, the evidence established a joint venture among the parties sufficient to withstand a directed verdict. Third, the court erred in its direction of a verdict on the strict liability and implied warranty counts. Fourth, the court erred in directing a verdict against the welder. Finally, they claim that several evidentiary errors require reversal.

The starting point of any review of a final judgment entered on a directed verdict is the general pronouncements regarding the direction of verdicts. A trial court may direct a verdict against a plaintiff only if no evidence is introduced on which the jury may lawfully find for the plaintiff. 55 Fla.Jur.2d Trials Sec. 84 (1982) and cases cited therein. In other words, where there is any evidence, albeit disputed, which supports the cause of action alleged, the trial court should not remove the case from the jury's consideration. Furthermore, on appeal a trial court's reasoning is not the controlling factor. The question before the court on review is whether the result reached by the court was correct. See Johnson v. Davis, 449 So.2d 344 (Fla. 3d DCA 1984); Gavel v. Girton, 183 So.2d 10 (Fla. 2d DCA 1966).

AGENCY

In order to prove an apparent agency between the Diplomat Hotel and Atlantic or Sunrise, the Amorosos must prove:

(1) A representation by the principal;

(2) Reliance on that representation by a third person; and

(3) A change of position by the third person in reliance upon the representation to his detriment.

Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983); Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991). As noted in Shelburne, the doctrine rests on appearances created by the principal, not the agent. Id. at 333. Shelburne also cites with approval Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977), which states:

[C]ontrol and domination need not be actual but may be binding upon the principal if apparent. That is, if the principal has held the agent out to the public as being possessed of the requisite authority, and a third person is aware of his authority and has relied on it to his detriment, the principal is estopped from denying the agency relationship.

Id. at 367.

Here there was sufficient evidence of each element of apparent agency to preclude the direction of a verdict against the Diplomat. The Diplomat placed brochures in each room advertising the availability of sailing at the hotel. The rental stand was on the Diplomat Beach. Both Mr. and Mrs. Amoroso testified that neither Sunrise nor Atlantic were identified as the owner or operator at the beach. The sailboats were paid for by charging them to the room and leaving the room key as security for the rental. Mrs. Amoroso also testified that she saw in the brochure a sail with the Diplomat logo on it. Just as in Shelburne this evidence taken together was sufficient to show that the Diplomat represented to their guests that the sailboat rental stand was a part of the hotel operations.

Secondly, there was evidence of the Amorosos' reliance upon the representation of the Diplomat's control of the sailboat rentals. Regarding her failure to inspect the sailboat being rented, Mrs. Amoroso testified, "I would assume that if the Diplomat is renting something, it is in good condition. I didn't even think that there could be possibly anything wrong with it." Similarly, her husband testified that he rented the sailboat from the Diplomat and "[I] had full faith on [sic] the Diplomat Hotel. If the Diplomat Hotel was renting something why should I inspect it? ... I put my trust in the Diplomat Hotel".

Finally, the third element is met by the rental of the sailboat by the Amorosos, which led to the accident and Mrs. Amoroso's injuries. Since all of the elements of apparent agency were met, it was error to direct a verdict as to the Diplomat on the ground that there was no evidence of apparent agency offered.

With respect to the directed verdict in favor of Atlantic, the trial court concluded that since Atlantic was the agent of Sunrise, and a third party cannot recover both against an agent and its principal for negligence, Atlantic as agent would be entitled to a directed verdict. As this case involved the existence of at most an "undisclosed" agency relationship between Sunrise and Atlantic, the appellants were entitled to hold either the agent or the principal liable. Collins v. Aetna Ins. Co., 103 Fla. 848, 138 So. 369 (1931). However, while the appellants had to elect which party to hold liable, they were not required to elect until after the verdict as to whom t...