LaTorre By and Through LaTorre v. First Baptist Church of Ojus, Inc.
| Decision Date | 05 August 1986 |
| Docket Number | No. 85-556,85-556 |
| Citation | 11 Fla. L. Weekly 1695,498 So.2d 455 |
| Parties | 11 Fla. L. Weekly 1695 Joshua LaTORRE, a minor, By and Through his parents and next best friends, Joseph LaTORRE and Wanda LaTorre, individually, Appellants, v. FIRST BAPTIST CHURCH OF OJUS, INC., a Florida corporation not for profit, Appellee. |
| Court | Florida District Court of Appeals |
John M. Bernazzoli (Hollywood), for appellants.
Ress, Gomez, Rosenberg, Howland & Mintz and Steven A. Edelstein, for appellee.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
Joshua LaTorre was not yet a year and one-half old when he was bitten by ants in the outside play area of a child care center run by the First Baptist Church of Ojus, Inc. His parents, on their own behalf and his, sued the church, alleging that its negligence had resulted in Joshua's having assorted physical, mental and emotional problems since the incident. A jury returned a verdict for the church, and the LaTorres take this appeal from the judgment entered thereon.
The LaTorres raise two points that merit discussion. They contend that the trial court erred, first, in refusing to instruct the jury, as the plaintiffs requested, as to the violation of certain Department of Health and Rehabilitative Services (HRS) regulations governing day care centers which constituted negligence per se; and second, in refusing to allow the plaintiffs to introduce the deposition testimony of a director of the defendant corporation. We agree with the LaTorres that the trial court erred in each of these respects and reverse and remand for a new trial. 1
The plaintiffs' theory of liability was based in substantial part on the church's alleged violation of several sections of the Department of Health and Rehabilitative Services Child Care Standards. Among these sections were one dealing with the duty to keep the outdoor play area clean and free of obvious hazards 2 and one dealing with the duty to provide a minimum amount of usable, safe, and sanitary outdoor play space. 3 In support of their theory, the plaintiffs presented evidence to show that each of these regulations was violated.
At the charge conference, the plaintiffs requested instructions on the issue of negligence per se, tracking the language of the HRS regulations upon which their case was based. Significantly, their request that the jury be instructed about the requirement that the defendant provide a minimum area of usable, safe, and sanitary space was denied.
It is well settled that a party is entitled to have the court instruct the jury on his theory of the case where the evidence, even though controverted, supports the theory. Ryder Truck Rental, Inc. v. Johnson, 466 So.2d 1240 (Fla. 1st DCA 1985); Gallagher v. Federal Insurance Co., 346 So.2d 95 (Fla. 3d DCA), cert. denied, 354 So.2d 980 (Fla.1977); Menard v. O'Malley, 327 So.2d 905 (Fla.3d DCA 1976). However, in determining whether failure to give a certain instruction constitutes error, we are required to consider the jury instructions as a whole along with, in the appropriate case, the verdict form. Gallagher v. Federal Insurance Co., 346 So.2d at 97. Where the essence of the instruction is included in other charges given or where the failure to give requested instructions is not shown to be prejudicial, we need not reverse. Llompart v. La Vecchia, 374 So.2d 77 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980). Ultimately, the decision turns on whether the record reveals that the jury was misled by failure to give the instruction. Orange Belt Auto Line v. Harford, 91 Fla. 1011, 109 So. 201 (1926); Gallagher v. Federal Insurance Co., 346 So.2d 95.
Applying these principles to the case before us, we conclude that the jury should have been instructed as requested by the plaintiffs, and that the instructions as given did not remedy the omission of an instruction on the day care center's obligation to provide a minimum amount of usable, safe, and sanitary space. The plaintiffs theorized, and tailored their instructions and verdict form to make clear to the jury, that a violation of any one of the regulations constituted negligence. They distinguished throughout the case between the requirement that the play area be clean and free of litter and obvious hazards and the entirely separate requirement that the area contain a minimum amount of usable, safe, and sanitary space. Although these requirements manifestly differ, 4 the trial court, being of the view that the instruction about keeping the play area free from obvious hazards was sufficient to cover the separate requirement that usable, safe, and sanitary space be provided, gave the former instruction only.
Thus, the instructions as given failed to include one of the bases for liability upon which the plaintiffs had presented evidence. 5 While a jury could have concluded that the ants were not an obvious hazard, if properly instructed it could also have concluded that the hidden presence of the ants in the play yard would render that space unusable, unsafe, and unsanitary. 6 Moreover, our reading of the charge as given combined with the undifferentiated verdict leads us to conclude that the jury may well have been misled into believing that in order to find the church negligent, it was necessary to find that it had violated all of the HRS child-care standards upon which it was instructed. Although the trial court correctly instructed the jury that a violation of the HRS regulations governing the child care center constituted negligence per se, see First Overseas Investment Corp. v. Cotton, 491 So.2d 293 (Fla. 3d DCA 1986); see also deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973) (); Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978) (), no part of the instructions as given made clear to the jury that, if it found a failure to comply with any one of the HRS requirements, a finding of negligence was mandatory.
We turn now to the second point upon which we base this reversal. James Atwell, indisputably a director of the defendant...
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