Di Teodoro v. Lazy Dolphin Development Co., 81-358

• Citation: 418 So.2d 428
• Decision Date: 24 August 1982
• Docket Number: No. 81-358,81-358
• Parties: Gilbert A. DI TEODORO and Patricia A. Di Teodoro, his wife, Appellants, v. LAZY DOLPHIN DEVELOPMENT COMPANY d/b/a Jack's Bar and Package Store, Appellee.
• Court: Court of Appeal of Florida (US)

Page 428

418 So.2d 428

Gilbert A. DI TEODORO and Patricia A. Di Teodoro, his wife, Appellants, v. LAZY DOLPHIN DEVELOPMENT COMPANY d/b/a Jack's Bar and Package Store, Appellee.

No. 81-358.

District Court of Appeal of Florida,

Third District.

Aug. 24, 1982.

Thomas & Thomas and Frank Thomas, Orlando, for appellants.

David Wm. Boone, Fertig & Curtis, Christopher R. Fertig, Fort Lauderdale, for appellee.

Before SCHWARTZ, NESBITT and BASKIN, JJ.

NESBITT, Judge.

The plaintiffs appeal from the denial of their motion for new trial after an adverse verdict and judgment was entered against them in a personal injury action. The only point with which we are concerned is whether the trial court erred in denying the plaintiffs the right to amend their pleadings to conform to the evidence. ¹

The plaintiffs' initial complaint was predicated upon the negligent maintenance of the defendant bar and package store. At trial, this issue developed narrowly to whether the handrail on the stairway was negligently maintained, thereby causing Gilbert Di Teodoro's fall. During the plaintiffs' case, testimony was elicited from one Gary Burns to the effect that the bartender pushed him (Gary) into Gilbert, causing the plaintiff to fall down the stairs. This testimony was introduced without any objection being interposed by defense counsel. Moreover, defense counsel cross-examined this witness on this intentional tort by the bartender. After all of the evidence was presented by plaintiffs, counsel for the plaintiffs moved to conform the pleadings to the evidence adduced at trial. The motion was denied and the trial judge refused to instruct the jury on this issue. We reverse.

Florida Rule of Civil Procedure 1.190(b) provides, in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues.

In the present case, we find that the issue of the bartender's intentional tort was tried by implied consent. It is basic in trial practice that an opposing party must object and obtain a ruling on the admission of evidence or else that objection is waived. McMillan v. Reese, 61 Fla. 360, 55 So. 388 (1911). We reject the appellee's contention, relying upon Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968), that the evidence was consistent with the negligent maintenance theory stated in the complaint, so as to prevent the defendant from realizing that a new issue was being tried. It can hardly be said that proof that the bartender pushed Gary into Gilbert, causing the plaintiff to fall, is consistent with proof of the defendant's negligence in failing to maintain a handrail. Therefore, we find that the defendant's failure to object to the introduction of such testimony at the time it was offered precludes it from now claiming error in its admission.

Nonetheless, the defendant contends that the intentional tort constitutes a new cause of action, barred by the statute of limitations, which cannot relate back to the time when the original cause of action was filed. When an issue is tried by implied consent, that issue can be treated in all respects as if it had been raised in the pleadings. Fla.R.Civ.P. 1.190(b); Free Bond, Inc. v. Comaza International, Inc., 281 So.2d 61 (Fla. 3d DCA 1973); Beefy Trail, Inc. v. Beefy King International, Inc., 267 So.2d 853 (Fla. 4th DCA 1972); Robbins v. Grace, 103 So.2d 658 (Fla. 2d DCA 1958)....