Gallagher v. Federal Ins. Co.
| Decision Date | 03 May 1977 |
| Docket Number | No. 76-819,76-819 |
| Citation | 346 So.2d 95 |
| Parties | Teresa GALLAGHER, a minor, by and through her parents and natural guardians, et al., Appellants, v. FEDERAL INSURANCE COMPANY, a Foreign Corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Joseph S. Marcus, Homestead, Albert Yurko, Orlando, for appellants.
Greene & Cooper, Corlett, Merritt, Killian & Sikes and Lawrence B. Craig, Pyszka, Kessler, Adams & Solomon and Charles M. Belous, Walton, Lantaff, Schroeder & Carson and Michael R. Jenks, Miami, for appellees.
Before PEARSON, BARKDULL and NATHAN, JJ.
In this action for damages stemming from a 1973 automobile-truck collision, the plaintiffs appeal from a final judgment for the defendants following a jury verdict on special interrogatories.
Pursuant to the defendants' motion, the trial court ordered a bifurcated trial separating the issues of liability and damages. Counsel for the plaintiffs and the defendants then entered into a stipulation that the issues to be determined at the first trial, the liability trial, were the issues of whether the defendant truck driver was negligent in the operation of the truck, and whether the plaintiff driver was negligent in the operation of her automobile. The stipulation further provided that the issues regarding the ownership of the truck, and the truck driver's possible status of independent contractor would not be considered at the liability trial; and that "all other issues, claims, defenses and disputes shall be preserved as to both plaintiffs and all defendants."
At the conclusion of all of the evidence on liability, the court charged the jury. After deliberating, the jury rendered the following verdict on special interrogatories:
1) Was there negligence on the part of Defendant LUIS ALBERTO RODRIGUEZ which was a legal cause of the accident?
NO___________NO__________
YES______________________
If your answer to the above question is 'No,' do not answer any further questions, and merely sign and date your verdict.
If your answer to the above question is 'Yes,' state the percentage of negligence attributable to Defendant LUIS ALBERTO RODRIGUEZ.
______________________%
2) Was there negligence on the part of the Plaintiff VENITA W. GALLAGHER which was a legal cause of the accident?
NO________________________
YES_______________________
If your answer to the above question is 'Yes,' state the percentage of negligence attributable to the Plaintiff VENITA W. GALLAGHER.
______________________%
The plaintiffs' first point on appeal is that the court erred in refusing to give certain instructions to the jury, specifically Standard Jury Instructions 5.1(a) and 5.1(b). Those instructions, which concern proximate cause and concurrent cause, respectively, read as follows:
(a) Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.
(b) In order to be regarded as a legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury or damage even though it operates in combination with the act of another cause if such other cause occurs at the same time as the negligence and if the negligence contributes...
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