Lynx Transp. v. Atkinson

• Citation: 720 So.2d 600
• Decision Date: 30 October 1998
• Docket Number: No. 98-661,98-661
• Parties: 23 Fla. L. Weekly D2434 LYNX TRANSPORTATION, etc., Appellant, v. Michael ATKINSON, Appellee.
• Court: Florida District Court of Appeals

Page 600

720 So.2d 600

23 Fla. L. Weekly D2434

LYNX TRANSPORTATION, etc., Appellant, v. Michael ATKINSON, Appellee.

No. 98-661.

District Court of Appeal of Florida Fifth District.

Oct. 30, 1998.

Rehearing Denied Nov. 19, 1998.

Janice L. Merrill and Reginald D. Hicks of Perry & Hicks, P.A., Orlando, for Appellant.

R. Lee Dorough, Orlando, for Appellee.

PETERSON, Judge.

Lynx Transportation appeals a final judgment after a jury found that it was responsible for injuries received by Michael Atkinson in a bus-automobile accident. Lynx argues on appeal that the trial court erred when it instructed the jury that a rebuttable presumption of negligence was created when the Lynx bus hit the rear of Atkinson's automobile. Lynx correctly states that the presumption exists when the trial court considers a motion for directed verdict, but when the motion is denied and the matter is submitted to the jury, the jury must deliberate without the aid of the presumption and must determine whether Lynx was negligent from all of the evidence presented. Gulle v. Boggs, 174 So.2d 26 (Fla.1965); Eppler v. Tarmac America, Inc., 695 So.2d 775 (Fla. 1st DCA), rev. granted, 705 So.2d 8 (Fla.1997) (Table, No. 91,066); Kao v. Lauredo, 617 So.2d 775 (Fla. 3d DCA 1993); Pierce v. Progressive American Ins. Co., 582 So.2d 712 (Fla. 5th DCA), rev. denied, 591 So.2d 183 (Fla.1991); Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985); Baker v. Deeks, 176 So.2d 108 (Fla. 2d DCA), cert. denied, 183 So.2d 213 (Fla.1965). Lynx, however, did not make this argument below; it only objected to the instruction because the bus driver testified that "technically there was no contact, he just came to rest against [Atkinson's] bumper.... To give this instruction would skew and add more facts that are not here and the jury has not heard because the plaintiff doesn't have them." Lynx did not advise the trial court that the giving of this instruction would be improper where the court had already determined that Atkinson was not entitled to a directed verdict. Tozier at 886 ("Once the presumption is overcome, it vanishes; the jury is not instructed upon it."). Hence, it failed to preserve the issue for consideration by this court. Jaffe v. Endure-A-Life Time Awning Sales, Inc., 98 So.2d 77 (Fla.1957)(question as to the proper law to be applied could not be considered for the first time on appeal); Clock v. Clock, 649 So.2d 312 (Fla. 3d DCA 1995)(an appellate court will not consider any ground for objection not presented to the trial court; review is limited to the specific grounds raised below); Perez v. Winn-Dixie, 639 So.2d 109 (Fla. 1st DCA 1994)(as a general rule, the failure to object or argue a specific point before the lower tribunal will preclude appellate review of that particular point); W.R....