Metropolitan Dade County v. St. Claire

• Decision Date: 31 January 1984
• Docket Number: No. 83-386,83-386
• Citation: 445 So.2d 614
• Parties: METROPOLITAN DADE COUNTY, Appellant, v. Anne ST. CLAIRE and Douglas St. Claire, her husband, Appellees.
• Court: Florida District Court of Appeals

Page 614

445 So.2d 614

METROPOLITAN DADE COUNTY, Appellant, v. Anne ST. CLAIRE and Douglas St. Claire, her husband, Appellees.

No. 83-386.

District Court of Appeal of Florida Third District.

Jan. 31, 1984.

Rehearing Denied March 12, 1984.

Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appellant.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Cohen, Logan & Kandell, Miami, for appellees.

Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Metropolitan Dade County appeals from an adverse judgment entered upon a jury verdict finding the County liable, through the negligence of one of its police officers, for damages to the plaintiff Anne St. Claire. Finding merit in the County's contentions that the trial court erred in instructing the jury on res ipsa loquitur and that such error was harmful, we reverse the judgment under review and remand the cause for a new trial.

On October 7, 1980, at around 1:20 a.m., three Dade County Police Officers went to a hotel to make an arrest. In her capacity as the night clerk and assistant manager of the hotel, St. Claire let the officers into the lobby, a room approximately fifteen feet long and fifteen feet wide. When the officers entered, they saw a large German Shepherd dog. When the dog started growling and got on its hind legs, the officers started to back out of the lobby. The dog lunged at Mundy, grabbing Mundy's kneecap in his teeth. According to Officers Mundy and Fisher, the dog's action propelled Mundy into the jalousie windows and precipitated Mundy's attempt to beat the dog off him. According to St. Claire, Mundy fell into the glass jalousies and started to beat the dog off before he was attacked. Under either version of the facts, the dog continued to grip Mundy's knee in his teeth. By St. Claire's account, the dog's teeth were in Mundy's knee about ten seconds when Mundy drew his gun and shot; by the officers' account, approximately thirty seconds had elapsed from the time of the attack to the shooting. St. Claire testified that she was standing two feet in front of Mundy and that as she reached for the dog, Mundy shot the dog, the bullet passing through St. Claire's arm. Mundy and Fisher stated that St. Claire was standing two or three feet to Mundy's right, and Mundy turned away from St. Claire and shot at the dog. St. Claire sued Mundy and Dade County, later dismissing Mundy as a defendant.

At the conclusion of the trial, the court, over the County's objection, instructed the jury:

"The Court instructs you that if you find from the evidence that the plaintiff was shot in the arm and injured by a gun in the hands of Detective Mundy, at the time said gun discharged or fired, that said gun was under the exclusive control and management of Detective Mundy, and that the firing of said gun shot into the arm of the plaintiff was such an occurrence as in the ordinary course of events would not happen if due care had been exercised by Detective Mundy, then these facts alone would afford you sufficient evidence to find for the plaintiff, in the absence of any sufficient explanation on the part of Detective Mundy, tending to show that the injury was not due to his want of care.

"In other words, the burden would fall on the defendant to explain the act of the shooting of the plaintiff in the arm with said gun. If the defendant failed to explain said act to your satisfaction or, rather, by the greater weight of the evidence, then you would have sufficient evidence to find for the plaintiff." ¹

The Florida Supreme Court recently revisited the doctrine of res ipsa loquitur in Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978). The teaching of Goodyear is that the inference of negligence which res ipsa loquitur provides is proper only "when direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the injuring incident." 358 So.2d at 1341. As the court stated:

"Res ipsa loquitur --'the thing speaks for itself'--is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control."

358 So.2d at 1341-42 (footnotes omitted).

Even more recently, the same court emphasized that "Given the restrictive nature of the doctrine, a court should never lightly provide this inference of negligence. Rather it is incumbent on the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine's requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference."

City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261, 262 (Fla.1982).

Applying these tests for entitlement to a res ipsa loquitur instruction to the present case, we think it clear that the instruction should not have been given below. First, there is not the slightest evidence to establish that injuring another by shooting a gun is such an occurrence as in the ordinary course of events would not happen in the absence of due care being exercised by the person who discharged the weapon. ² But even if, arguendo, it could be said that accidental shootings do not occur in the absence of negligence on the part of the shooter, it is abundantly clear that the facts surrounding the incident in this case were both discoverable and provable and that direct evidence of Mundy's negligence as the cause of the injury was available to--indeed, shown by--the plaintiff. See Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (plaintiff not entitled to res ipsa loquitur instruction where direct proof of negligence and cause of injury discoverable and provable at trial); Frash v. Sarres, 60 So.2d 924 (Fla.1952) (same); Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (Fla. 4th DCA 1981) (same); Benigno v. Cypress Community Hospital, Inc., 386 So.2d 1303 (Fla. 4th DCA 1980) (same). Therefore, at least one requisite element of the doctrine of res ipsa loquitur was not satisfied, and accordingly, the plaintiff was not entitled to the benefit of the instruction.

St. Claire contends, however, that there is nothing in the opinion in Goodyear to preclude reliance on res ipsa loquitur even if there exists proof of specific acts of negligence. Although we agree with this contention, our agreement is little comfort to St. Claire.

In South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla.1960), upon which St. Claire relies, the plaintiff, in the recovery room after surgery, sustained fractures of both arms. In her subsequent action against the hospital and its agents, the plaintiff alleged that she was injured as a result of the hospital's negligence in permitting her to fall while under anesthesia, that is, while under the defendants' total control. The defendants contended that the plaintiff's injuries were probably self-inflicted by the plaintiff's involuntary convulsions. Under these circumstances, where the exact cause of the plaintiff's injuries was speculative and evidence to establish it unavailable, the Florida Supreme Court, adopting the majority rule that a plaintiff may, in certain cases, resort to both evidence of specific negligence as well as the inferences of res ipsa loquitur, held that an instruction on res ipsa loquitur was proper. The court characterized this majority rule as follows:

"[T]he introduction of evidence of specific negligence which does not clearly establish the precise cause of the injury, will not preclude reliance on the otherwise-applicable res ipsa doctrine. The view is taken that, except in the clearest cases, both the specific evidence and the appropriate inferences from the happening of the accident should be permitted to go to the jury, which, if it rejects the specific proof, may still find against the defendant on the basis of inference."

South Florida Hospital Corp. v. McCrea, 118 So.2d at 29 (emphasis supplied).

However, as McCrea itself acknowledged in finding no conflict with Frash v. Sarres, 60 So.2d 924, "there is no need or room for the operation of any...