Belizaire v. Lydic

• Decision Date: 05 November 1991
• Docket Number: No. 90-2499,90-2499
• Citation: 590 So.2d 456
• Parties: Wilner BELIZAIRE, Appellant, v. Robert W. LYDIC d/b/a Tidewater Machinery Company, Appellee. 590 So.2d 456, 16 Fla. L. Week. D2797
• Court: Florida District Court of Appeals

Page 456

590 So.2d 456

Wilner BELIZAIRE, Appellant, v. Robert W. LYDIC d/b/a Tidewater Machinery Company, Appellee.

No. 90-2499.

590 So.2d 456, 16 Fla. L. Week. D2797

District Court of Appeal of Florida Third District.

Nov. 5, 1991.

Rehearing Denied Jan. 15, 1992.

An Appeal from the Circuit Court for Dade County; Steven D. Robinson, Judge.

Buschbom, Panter & Panter, Lisa Bennett, for appellant.

Merritt, Sikes & Ennis and Francine D. Holbrook, for appellee.

Before BARKDULL, HUBBART and COPE, JJ.

PER CURIAM.

Affirmed. McCormick Machinery v. Julian E. Johnson & Sons, Inc., 523 So.2d 651 (Fla. 1st DCA 1988); Ryan v. Atlantic Fertilizer & Chemical Company, 515 So.2d 324 (Fla. 3d DCA 1987); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So.2d 767 (Fla. 3d DCA 1982); Keith v. Russel T. Bundy & Associates, Inc., 495 So.2d 1223 (Fla. 5th DCA 1986); Fletcher Co. v. Melroe Manufacturing Co., 238 So.2d 142 (Fla. 1st DCA 1970); Royal v. Black & Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1968), cert. denied, 211 So.2d 214 (Fla.1968); Wisner v. Goodyear Tire & Rubber Co., 167 So.2d 254 (Fla. 2d DCA 1964). Section 672.316(3)(b), Florida Statutes (1989).

HUBBART, Judge (dissenting).

I would reverse the summary judgment for the defendant retailer in this products liability action and remand for further proceedings. In my view, a triable issue is presented on this record as to whether the defendant retailer was guilty of negligence in selling a used rubber heating machine which lacked a highly sensitive knee safety device to instantly stop the machine in case of an emergency--which alleged defect caused foreseeable injuries to the plaintiff, a workman, whose hand was tragically crushed in the machine while operating it. Although the machine did have an overhead hand-operated safety device, it was not conveniently located or accessible to a workman whose hand or hands might become caught in the machine while operating it in a sitting position--as opposed to the knee-operated safety device which a seated workman, as here, could easily touch in case of an emergency and shut off the machine. Indeed, the machine in this case was, in fact, originally manufactured with a knee-safety device on it. The defendant retailer was in the business of selling such machines and should have known that a machine without such a safety device was unsafe. Accordingly, a summary judgment for the defendant retailer was singularly inappropriate. See Carter v. Hector...