Kowkabany v. Home Depot, Inc., 90-3806
| Decision Date | 16 October 1992 |
| Docket Number | No. 90-3806,90-3806 |
| Citation | 606 So.2d 716 |
| Parties | 17 Fla. L. Week. D2402, 17 Fla. L. Week. D2564 Eva Marie KOWKABANY, Appellant, v. The HOME DEPOT, INC., a foreign corporation registered to do business in Florida as The Home Depot, Inc., Appellee. |
| Court | Florida District Court of Appeals |
Bert A. Rasmussen of Bullock, Childs & Pendley, P.A., Jacksonville, for appellant.
Michael I. Coulson and Gordon P. Jones of Saalfield, Catlin, Coulson & Etheridge, Jacksonville, for appellee.
At the close of all the evidence at the trial of this personal injury action, the trial court granted defendant/appellee's (Home Depot's) motion for a directed verdict on the issue of liability and subsequently entered an amended final judgment in its favor. Finding that Home Depot owed a duty to appellant as a matter of law, and that a jury question was presented on the issue of proximate cause, we reverse and remand for a new trial.
On the morning of May 10, 1987, Eva Kowkabany and a friend were riding their bicycles along the edge of Phillips Highway in Jacksonville when Kowkabany was struck by a wooden landscaping timber, one of several protruding from the front passenger-side window of an automobile driven by Donald Remseyer. She was knocked from her bicycle and suffered serious injuries. Thereafter, she filed suit for her injuries against Donald Remseyer and his wife and Home Depot, the business establishment at which Remseyer purchased the timbers and whose unidentified employee assisted Remseyer in loading them in his automobile. At the commencement of trial of the cause in late October of 1989, Kowkabany voluntarily dismissed the suit against the Remseyers 1 and proceeded only against Home Depot.
As to Home Depot, Kowkabany's complaint stated:
11. Defendant, The Home Depot, Inc., owed a duty to the plaintiff to ensure that the lumber was loaded into the passenger vehicle consistent with safe practices as defendant, The Home Depot, Inc., knew or should have known the vehicle would be operated upon the public highways.
12. The defendant, The Home Depot, Inc., breached that duty by loading lumber into the passenger vehicle in such a manner that it projected 6 inches or more beyond the line of the fenders on the right side thereof.
Home Depot's liability was initially expressly predicated, in part, upon a violation of section 316.510, Florida Statutes, 2 which prohibits operating a vehicle with a load extending more than 6 inches beyond the line of the fenders on the right side. However, the count of Kowkabany's complaint grounded upon the statute was dismissed when Home Depot argued that the statute only applied to operation of a vehicle and imposed no duty upon Home Depot.
At trial, one George Hood testified that he was driving his car in the right-hand lane of Phillips Highway on the morning in question and had passed two female bicyclists without experiencing any difficulty negotiating his way around them. Looking through his rearview mirror, he saw the plaintiff as she was struck by the timber protruding from Remseyer's car.
Remseyer testified that he had purchased four eight-foot landscape timbers at Home Depot's store in Jacksonville on May 10, 1987, after which a store employee he could not identify assisted him in taking the timbers out to his automobile in the parking lot. When Remseyer and the employee got to the car, Remseyer rolled down the passenger-side window and indicated that he would put the timbers into the back of the car and extend them through the window. Remseyer, himself, put the first timber in place, and the employee loaded the other three timbers in like fashion. Remseyer then rolled up the window to secure the timbers, which extended out the window approximately two and one half to three feet. The Home Depot employee, according to Remseyer, did not warn him that the load was unsafe, nor was Remseyer aware of a statute prohibiting a load protruding more than 6 inches beyond the line of fenders on the right-hand side of the vehicle.
Remseyer added that after he left Home Depot's parking area with the timbers so loaded, he drove for approximately 20 to 25 minutes before coming upon Kowkabany on her bicycle. He described his encounter with Kowkabany as follows:
[DEFENDANT'S COUNSEL] And as you approached them, you were aware that they were riding their bicycles on the side of the road?
[REMSEYER] Yes, sir.
[COUNSEL] Okay. And as you came upon them, you looked to your left because you thought about moving to the left-hand lane, correct?
[REMSEYER] Right.
[COUNSEL] Okay. But you couldn't, right?
[REMSEYER] Because there was a car there.
[COUNSEL] Okay. You had a car next to you?
[REMSEYER] Yes, sir.
[COUNSEL] Okay. Now you're continuing still to approach these bicyclists, but it is true, isn't it, that you think there is room to make it by them?
[REMSEYER] Yes.
[COUNSEL] Okay. So you were in a position at that point where you had to make a judgment call, correct?
[REMSEYER] Yes, sir.
[COUNSEL] Okay. And your judgment and your decision at that time was to try to just go ahead and go by them, thinking you had room to clear them?
[REMSEYER] Yes, sir.
[COUNSEL] Okay. All right. And when you did that, unfortunately, you struck Ms. Kowkabany?
[REMSEYER] Yes.
....
[COUNSEL] In fact, you were aware of the wood?
[REMSEYER] Yes.
[COUNSEL] Okay. Why didn't you change lanes when you first saw the bicyclists up ahead of you when you were back from them?
[REMSEYER] I don't know. There--it was far enough back to start with. I didn't think the person--I mean, I thought sure the other man saw the bicycles also and that he would at least lay back until we passed them before he tried to pass me.
[COUNSEL] Okay. So he kind of put you in a squeeze situation a little bit?
[REMSEYER] Yes.
[COUNSEL] Okay. Now, you didn't ever hit your brakes though before you got to Ms. Kowkabany, did you, sir?
[REMSEYER] No.
[COUNSEL] Okay. And you could have done that and you could have slowed down ... until he went by you, correct?
[REMSEYER] Yes.
[COUNSEL] Okay. But you just didn't do that, you made that decision not to do that?
[REMSEYER] I still thought I cleared them.
[COUNSEL] Yes, sir. Okay. May I assume that you felt that as you got right up on Ms. Kowkabany on her bicycle that you still did not believe that you posed a danger to her?
[REMSEYER] I still believed it till I heard the noise.
Kevin J. Hardy, a lot man, testified that he was working at Home Depot on May 10, 1987, and, while he did not recall loading timbers into Donald Remseyer's car or Remseyer, himself, Hardy described his loading responsibilities in the following terms:
[PLAINTIFF'S COUNSEL] Okay. What type of instructions were given to you, if any concerning the loading of wood into passengers' vehicles where the wood projected out of the right passenger's-side window?
[HARDY] Other than just my own common sense, it was just spoken to me that past a certain point--which I don't remember exactly what it was--it was against the law in order for it to be projecting out that far.
[COUNSEL] And were you instructed, sir, about loading the wood contrary to this distance that you vaguely remember?
[HARDY] Yes, sir.
[COUNSEL] What did they tell you, sir?
[HARDY] It's been a long time ago, but they said--and I don't even remember who said it. Just that past--I think outside the bumper maybe of the vehicle, that it was not supposed to protrude that far past, you know.
[COUNSEL] Were you instructed you were not to do that ... on a passenger vehicle?
[HARDY] Yes, sir.
On cross-examination, Hardy testified that he usually suggested tying loads of lumber to the roof of the car because it was the safest method. If customers were worried about scratches, he would place cardboard under the load to protect the car. He testified that he couldn't recall any situation where he couldn't talk a customer into placing the load on the roof. Finally, defense counsel elicited the following testimony from Hardy:
[DEFENDANT'S COUNSEL] Okay. If a customer was adamant and he told you what he wanted done, what were you supposed to do? ... If he was firm on what he wanted done, what were you supposed to do; what were you instructed to do?
[HARDY] Still use my own judgment.
[COUNSEL] Okay. Were you then supposed to not go along with the customer?
[HARDY] Yes, sir. Refuse if it is dangerous or ... a safety risk.
[COUNSEL] And then you were to allow the customer to do as he chose without your assistance?
[HARDY] Usually turn it over to the manager or somebody that, you know, can maybe talk them out of doing that, maybe state something else.
The deposition of William Holton was read into evidence. Holton identified himself as the administrative assistant of the Home Depot store on Atlantic Boulevard. According to Mr. Holton it was among the duties of the store's lot men to assist customers who needed help in loading their purchases. No specific training or orientation was given concerning loading, but lot men were required to "use common sense" when loading. Although they were required to make sure that items were loaded safely and did not interfere with driving, if the customer was insistent, the lot men would load according to the customer's instructions. Holton agreed that the following answer to an interrogatory was an accurate description of Home Depot's policy:
The Home Depot policy is that the customer should be assisted pursuant to the customer's wishes. Therefore, the policy is to load the merchandise in the customer's vehicle in accordance with the customer's direction.
Home Depot had a sign posted which read: "ATTENTION CUSTOMERS: WE ARE HAPPY AND PLEASED TO PROVIDE ASSISTANCE IN HELPING LOAD YOUR PURCHASES; HOWEVER, WE CANNOT ASSUME LIABILITY FOR ANY DAMAGE WHICH MAY OCCUR."
After the testimony of these and other witnesses, the plaintiff rested her case. The defendant rested after placing only a photograph of the above posted sign in evidence....
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