Charlemagne v. Francis, 96-1886
| Decision Date | 15 October 1997 |
| Docket Number | No. 96-1886,96-1886 |
| Citation | 700 So.2d 157 |
| Parties | 22 Fla. L. Weekly D2403 John CHARLEMAGNE, Appellant, v. Adassa and Alston FRANCIS, Appellees. |
| Court | Florida District Court of Appeals |
Anthony J. Aloneftis of Hoffman, Aloneftis & Catren, P.A., Lauderdale, by the Sea, David L. Rich of Swiderski & Rich, P.A., Margate, and Nancy Little Hoffman of Nancy Little Hoffman, P.A., Fort Lauderdale, for appellant.
Christopher J. Lynch of Angones, Hunter, McClure, Lynch & Williams, P.A., for appellees.
The appellant sued property owners/appellees in common law negligence, claiming that they had failed to repair or replace defective carpet in an apartment. The appellant tripped over the carpet and was injured. Over the objection of the appellant, the trial court instructed the jury in accordance with section 83.51(4), Florida Statutes (1993), that the landlord was not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act of the tenant or a person on the premises with the tenant's consent. The jury returned a verdict in favor of the property owner. We reverse, holding it was error to give the instruction on section 83.51(4) in this common law negligence case, and because there was no evidence to support the giving of the instruction.
Bernadette Hyachinthe leased one of the appellees' apartments and moved in one week later. She noticed immediately that the carpet was old and needed to be replaced and informed the apartment manager who promised to replace it. About a week later, appellant, an elderly gentleman, moved into the apartment with Hyachinthe who had taken care of him for the past two years. He too noticed the poor condition of the carpet and complained to Hyachinthe about it. Hyachinthe testified that she spoke with the apartment manager two or three times about the carpet and pointed out ridges in the bedroom carpeting to him.
Approximately three weeks after moving into the apartment, appellant's toes got stuck in the ridges of the bedroom carpet, causing him to fall and break his hip. It was this injury that precipitated the appellant's common law negligence lawsuit against appellees. In defense, appellees claimed comparative negligence and the fault of others.
At trial, the apartment manager denied that appellant or Hyachinthe had ever called him about the carpet and testified that he never saw any ridges in the carpeting after he leased the premises to Hyachinthe. The person who cleaned the carpet prior to Hyachinthe's occupation of the premises testified that he had not seen any wrinkles in the carpet. He stated that if furniture movers had pulled the furniture across the carpet, this action could have caused the ridges, but he admitted that he had no personal knowledge regarding how the furniture was actually moved into the apartment. There was no other evidence addressing the cause of the ridges in the carpet.
During the charge conference, appellant's counsel requested the court to charge the jury in accordance with the second portion of Standard Jury Instruction 3.5(i), "Landlord's negligence (toward tenant) when leased premises are residential (not common areas)." 1 That instruction states, in pertinent part:
whether, after (claimant tenant) took possession of the dwelling, (defendant landlord) negligently failed to repair a dangerous or defective condition on the premises of which he had actual notice.
Fla. Std. Jury Instr. (Civil) 3.5(i). Defense counsel requested an instruction informing the jury of section 83.51(4), which states:
The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.
(emphasis supplied). Defense counsel argued that if the movers caused the wrinkles or ridges, then this subsection exculpated the appellees from any liability. Over the objection of appellant's counsel, the trial court gave the following instruction:
The Court further advises you on Florida Statute 83.51 outlining Landlord's Obligation to Maintain Premises provides as follows:
1. The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of the tenant's family, or other person on the premises with the tenant's consent.
If you find that the condition on the premises which caused the tenant's injury was a condition created by the negligence of persons involved in the moving process who were on the premises with the tenant's consent, then you should find for the Defendant.
If, however, you find that the damages were not caused by a condition created by the negligence of movers on the premises with the tenant's consent, then you should determine the respective responsibility of the Parties in accordance with the previous instructions given by the Court.
Thus, the trial court instructed the jury on both the statutory defense and comparative negligence.
We hold that it was error to give the statutory exculpation of liability instruction in a common law negligence action. In Mansur v. Eubanks, 401 So.2d 1328, 1330 (Fla.1981), the supreme court stated that "[a]fter the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant." The judge read Standard Jury Instruction 3.5(i), which incorporated Mansur. That instruction, together with the standard instructions on causation and comparative negligence, would have fully apprised the jury of the applicable law, namely (1) whether there was a defective condition in the carpet; (2) whether the tenants had notified the apartment manager of the defect; and (3) whether appellant was comparatively negligent, either...
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...J. We have for review Barth v. Khubani, 705 So.2d 72 (Fla. 3d DCA 1997), which expressly and directly conflicts with Charlemagne v. Francis, 700 So.2d 157 (Fla. 4th DCA), review dismissed, 703 So.2d 476 (Fla.1997).1 We have jurisdiction. Art. V, § 3(b)(3), Fla. The issue presented by the co......
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