Metropolitan Dade County v. Cox

• Decision Date: 07 August 1984
• Docket Number: No. 83-2687,83-2687
• Parties: METROPOLITAN DADE COUNTY, Appellant, v. Minnie COX, Appellee.
• Court: Florida District Court of Appeals

Page 1171

453 So.2d 1171

METROPOLITAN DADE COUNTY, Appellant, v. Minnie COX, Appellee.

No. 83-2687.

District Court of Appeal of Florida Third District.

Aug. 7, 1984.

Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for appellant.

Gary E. Garbis, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.

SCHWARTZ, Chief Judge.

Dade County appeals from a $50,000 judgment reduced from a $60,000 jury verdict under Sec. 768.28(5), Fla.Stat. (1981). The recovery was based upon findings that the plaintiff, who had slipped and fallen in an accumulation of water in a Jackson Memorial Hospital corridor caused by a backed-up drain, had sustained $100,000 in damages and was 40% comparatively negligent. The only point which deserves discussion is the claim that the fact that the county "admitted liability"--leaving the contributory-comparative negligence issue for jury determination--rendered it erroneous for the trial court to have admitted an internal memorandum from the chairman of the hospital's safety committee indicating that it had been on actual notice of the defective condition for some time prior to Ms. Cox's accident and that there had been at least one previous fall at the area in question. ¹ We reject this argument and affirm.

While the county correctly contends that evidence concerning liability is irrelevant and prejudicial when, as in the decisions it cites, Barton v. Miami Transit Company, 42 So.2d 849 (Fla.1949); Neering v. Johnson, 390 So.2d 742, 743 (Fla. 4th DCA 1980); and School Board of Palm Beach County v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978), the defendant admits entire responsibility for the accident and only the amount of damages remains to be decided, this rule had no application whatever when, as here, the jury must determine the percentage, that is the relative extent of each party's negligence under the comparative negligence doctrine. The fact-finders' task in such a case is to determine

such proportion of the entire damages plaintiff sustained as the Defendant's negligence bears to the combined negligence of both the Plaintiff and the Defendant.

Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973); see Insurance Company of North America v. Pasakarnis, 425 So.2d 1141, 1143, n. 4 (Fla. 4th DCA 1982) (Schwartz, A.J., dissenting), approved in Insurance Company of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984). Obviously, this cannot be done without complete information as to the quantity, quality, nature and degree of the defendant's conduct so that the jury knows just what to "compare" with its assessment of the plaintiff's. In this case, by entering the so-called admission of liability, the defendant below essentially conceded only that it was 1% responsible for the plaintiff's injuries. When the issue of the relative percentages thus remains virtually entirely open and depends upon the extent of the county's own negligence, it surely cannot insist that it does not matter that it knew of, but ignored the condition which caused the accident.

In like manner, it could not be contended that by admitting liability in an intersection accident while claiming that the plaintiff was comparatively negligent in exceeding the speed limit, the defendant could preclude, as "irrelevant," testimony that he had run a stop sign at 90 miles per hour while blind drunk. That was the exact holding in Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977), where the court said:

The critical matter then is whether all of the evidence of the defendant's conduct is admissible on the issue of comparative negligence when a defendant admits that one of his acts was a proximate cause of the injury, but claims plaintiff's negligence was also a proximate cause. Specifically in this case, can plaintiff introduce evidence of alleged intoxication and speed when defendant admits that his failure to yield the right of way was a proximate cause of the collision and plaintiff's injuries?

The essential question is whether, in a comparative negligence setting, a defendant can shield his total alleged acts of negligence from the jury by admitting to one act of negligence while exposing all of the blameworthy conduct of the plaintiff. We think not.

Comparative negligence means comparison. The trier of fact compares the negligence of plaintiff and defendant. Fault is compared to fault. Thus to determine the negligence of the parties, the trier of the facts must hear the totality of fault. Failure to yield the right of way may be a proximate cause of a collision, but how much more responsibility for the injury was attributable to the defendant who might have been intoxicated or speeding. If we have comparative negligence, we must look at all of the proximate causes of the collision and its consequent injuries.

570 P.2d at 142.

The general law on the subject is summarized in the leading and remarkably similar case of Sears v. Southern Pacific Company, 313 F.2d 498 (9th Cir.1963), decided under the Federal Employers' Liability Act, which embodies a comparative negligence rule identical to Florida's. See St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982) (applying FELA-Jones Act authority to resolve Florida comparative negligence issue). In Sears, the trial court excluded from evidence a "notice letter," like the one in this case, concerning the area in which the plaintiff was injured. On his appeal from an allegedly inadequate verdict, the railroad countered that the ruling was harmless. The court disagreed. It stated counsel was careful to state that the purpose of the letter was simply to show that the defendant had knowledge of the alleged hazard from and after the date it received the letter. So limited, the exhibit should have been admitted. See 6 Wigmore, Evidence, § 1789 at 235 (3d ed. 1940).

Defendant, however, contends that any adverse effect the ruling may have had on plaintiff's case was cured by the court's instructions. Defendant points out that although its knowledge, actual or constructive, of the peril was a material fact essential to the existence of negligence ... the court completely ignored this issue and flatly told the jury that defendant had the duty to provide plaintiff with a reasonably safe place to work. Defendant's contention would have merit if this case were governed by common law rules, for under them relative negligence by either party is immaterial, and any causal negligence of the plaintiff operates to bar his recovery. But this case is prosecuted under the FELA and section 3 of that Act expressly provides that a plaintiff's contributory negligence is no bar "but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to [him]."

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