Landry v. Sterling Apartments, Inc.

• Decision Date: 31 December 1969
• Docket Number: No. 2154,2154
• Citation: 231 So.2d 225
• Parties: Russell L. LANDRY, Appellant, v. STERLING APARTMENTS, INC., an Illinois corporation, Appellee.
• Court: Florida District Court of Appeals

Page 225

231 So.2d 225

Russell L. LANDRY, Appellant, v. STERLING APARTMENTS, INC., an Illinois corporation, Appellee.

No. 2154.

District Court of Appeal of Florida, Fourth District.

Dec. 31, 1969.

Rehearing Denied March 5, 1970.

Wallis E. Schulle, of Fisher, Prior, Pruitt & Schulle, and Warwick, Paul & Herring, West Palm Beach, for appellant.

John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellee.

REED, Judge.

The plaintiff, appellant here, Russell L. Landry, filed a complaint in the Circuit Court for Palm Beach County, Florida, alleging that he was injured as a result of a fall on or about 19 September 1965 on defendant's business premises known as the Bazaar International Shopping Center in Riviera Beach, Florida. The defendant, Sterling Apartments, Inc., the appellee here, by its answer denied all averments of negligence and alleged contributory negligence. The cause was tried before a jury on 29 January 1968. At the conclusion of the evidence the defendant moved for a directed verdict. Ruling was reserved, and the cause submitted to the jury which returned a plaintiff's verdict for $16,000.00. Under Rule 1.480(b), RCP, 30 F.S.A., the defendant made a motion for a new trial and a motion to set aside the jury verdict and for a judgment in accordance with the earlier motion for directed verdict. The trial court granted the post-trial motion for judgment in accordance with the motion for directed verdict and entered a final judgment in favor of the defendant from which this appeal was taken.

The issue here is whether or not the trial court erred in granting the defendant's post-trial motion for judgment.

The plaintiff testified that on the day of the accident he accompanied his wife and his two minor children to the Bazaar International. He stated that he and his group went up an observation tower on the premises. After coming down the plaintiff went into a small room at the base of the tower to get some balloons for his children. As he proceeded out of the covered area at the base of the tower, a pepsicola cup which was evidently thrown from the top of the tower landed in front of him. Thereupon the plaintiff grabbed his two and one-half year old son who had gotten ahead of the plaintiff because he thought the boy might be hit. As he reached for the child, the plaintiff's feet went from under him. He slipped and fell. The plaintiff did not see what caused him to slip, but indicated that he slipped on a foreign object. The boy had not gotten far in front of the plaintiff when plaintiff grabbed for him--perhaps two or three steps. Prior to the accident plaintiff had noticed in the shopping area pepsi-cola cups, crushed ice, liquid, and broken balloons.

A post-trial motion for a judgment in accordance with a motion for a directed verdict made under Rule 1.480(b) should be granted only where no evidence is presented on which the jury could lawfully have returned its verdict. The rules governing such a motion are the same as those governing a motion for a directed verdict at the close of the evidence. Cf. Morgan v. Collier County Motors, Inc., Fla.App.1966, 193 So.2d 35; Hendricks v. Dailey, Fla.1968, 208 So.2d 101, 103. The trial court must resolve all conflicts in the evidence in favor of the...