General Motors Corp. v. Dade County

• Decision Date: 08 January 1973
• Docket Number: No. 72--105,72--105
• Parties: GENERAL MOTORS CORPORATION, a foreign corporation, Appellant, v. COUNTY OF DADE, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 192

272 So.2d 192

GENERAL MOTORS CORPORATION, a foreign corporation, Appellant, v. COUNTY OF DADE, a political subdivision of the State of Florida, Appellee.

No. 72--105.

District Court of Appeal of Florida, Third District.

Jan. 8, 1973.

Rehearing Denied Feb. 15, 1973.

Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Sam Daniels, Miami, for appellant.

Blackwell, Walker & Gray and James Tribble, Sam Powers, Jr., Miami, and Mark Hicks, Coral Gables, for appellee.

Before BARKDULL, C.J., and CHARLES CARROLL and HAVERFIELD, JJ.

PER CURIAM.

The appellant, cross-defendant in the trial court, seeks review of an adverse judgment in the amount of $125,000.00 entered by the trial court pursuant to a directed verdict on a cross-claim for indemnification in a negligence action.

This is an off-shoot of the case of Homan v. County of Dade, Fla.App.1971, 248 So.2d 235, wherein this court reinstated a jury verdict for Homan for injuries received when an unknown person threw a brick through the window of the appellee's bus. When Homan filed that case against the County (as the carrier) and General Motors (as the manufacturer of the vehicle), the County then filed a cross-claim against the appellant seeking indemnification. Prior to that case being submitted to the jury, the trial court directed a verdict in favor of the appellee herein on its cross-claim. The cause went to the jury on the issues of whether the carrier failed to exercise the highest degree of care, whether it breached its contract for safe carriage, and Whether the manufacturer was liable for breach of warranty. The jury returned a verdict against the carrier only and, pursuant to that verdict, the trial court ultimately entered a judgment against the appellee in favor of Homan and entered a judgment on the cross-claim, which is the subject matter of this appeal.

The trial court held as a matter of law that the carrier was entitled to indemnity from the manufacturer because it was, at most, guilty of Passive rather than Active negligence. Florida, like most jurisdictions, holds that a tortfeasor guilty of active negligence cannot obtain indemnity from another. Winn-Dixie Stores, Inc. v. Fellows, Fla.App.1963, 153 So.2d 45; Florida Power & Light Company v. General Safety Equipment Company, Fla.App.1968, 213 So.2d 486; Aircraft Taxi Co. v. Perkins, Fla.App.1969, 227 So.2d 722. The record reveals the following:

On Halloween night, October 31, 1966, an unidentified person threw a brick through the upper right-hand folding door panel of the carrier's bus, which hit and seriously injured Homan. The door panel was made of tempered glass and the carrier had actual knowledge of this fact before the accident bus was even ordered. The carrier had actual knowledge of the breaking characteristics of tempered glass. In addition, the carrier had actual knowledge that from time to time various objects were thrown at its buses In the area in question.

At the trial, conflicting expert opinion evidence was offered as to whether laminated or plexiglass should have...