Balart v. Michel's Kartway, Inc.

• Decision Date: 14 November 1978
• Docket Number: No. 78-270,78-270
• Citation: 364 So.2d 90
• Parties: Sandra BALART, a minor, By and Through her father and next friend, Gilberto Balart, and Irene Balart, her parents, Individually, Appellants, v. MICHEL'S KARTWAY, INC., and All Star Insurance Corp., Appellees.
• Court: Florida District Court of Appeals

Page 90

364 So.2d 90

Sandra BALART, a minor, By and Through her father and next friend, Gilberto Balart, and Irene Balart, her parents, Individually, Appellants, v. MICHEL'S KARTWAY, INC., and All Star Insurance Corp., Appellees.

No. 78-270.

District Court of Appeal of Florida, Third District.

Nov. 14, 1978.

Michael P. Maguire, Coral Gables, for appellants.

Robert M. Sussman, Hialeah, for appellees.

Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

This is an appeal by the plaintiffs below from a judgment for defendants, entered on a directed verdict granted at the close of the presentation of evidence by plaintiffs. We find error, and reverse.

The plaintiff, Sandra Balart, a minor, through her parents, and the parents individually, filed action against Michel's Kartway, Inc., and its insurer, All Star Insurance Corporation, for damages for personal injuries received by Sandra, and for derivative damages sustained by the parents. The plaintiffs alleged that Michel's Kartway, Inc., herein referred to as the defendant, operated a Go-Kart track facility; that on the day in question, Sandra was an invitee participating in riding a go-kart supplied by defendant; that in her operation thereof, the go-kart left the track and ran into a chain-link fence causing injuries to Sandra; that the defendant was negligent by not providing a means of protection to participants whose karts should leave the road or track.

The defendant answered claiming that by losing control of the kart and leaving the paved track, Sandra was guilty of negligence which was the sole proximate cause of her injuries, and alternatively pleaded that if the defendant was negligent, it was entitled to the benefit of the comparative negligence rule.

Applicable on the trial court's consideration of the defendant's motion for directed verdict was the established rule that the motion should not be granted unless it was clear that there was no evidence whatever adduced that could in law support a verdict for the plaintiffs. Chambers v. Loftin, 67 So.2d 220, 221 (Fla.1953); Cadore v. Karp, 91 So.2d 806 (Fla.1957); Guerriero v. Adams, 190 So.2d 432 (Fla. 3d DCA 1966); Lehrer v. Fontainebleu Hotel Corp., 285 So.2d 636 (Fla. 3d DCA 1973). On appeal, in considering the propriety of the directed verdict for the defendant this court is required to evaluate the evidence in the light most favorable to the plaintiffs, disregarding conflicts in the evidence and indulging in the plaintiffs' favor every reasonable intendment deducible from the evidence. Rodi v. Florida Greyhound Corp., 62 So.2d 355 (Fla.1952); Brightwell v. Beem, 90 So.2d 320, 322 (Fla.1956); Guerriero v. Adams, supra; Seigel v. Mt. Sinai Hospital of Greater Miami, Inc., 250 So.2d 332 (Fla. 3d DCA 1971); Chimeno v. Fontainebleau Corp., 251 So.2d 351 (Fla. 3d DCA 1971).

Because of the doctrine of comparative negligence, the direction of a verdict for defendants at the close of the plaintiffs' case necessarily was predicated upon conclusion by the trial court that the evidence showed either that Sandra was negligent as a matter of law and that her own negligence was the sole proximate cause of her injuries, or that it was established by the evidence as a matter of law, that the defendant was not guilty of any negligence proximately causing or contributing to cause Sandra's injuries.

The owner-operator of such a facility as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain the place in a reasonably safe condition for all ordinary, customary and reasonable use to which it may be put by the patrons, and to use ordinary and reasonable care for the safety of his patrons, and may be liable for injury to a patron from breach of his duty. Brightwell v. Beem, su...