Morris v. Home Depot U.S.A., Inc.
| Decision Date | 19 April 1996 |
| Docket Number | No. 95-1694,95-1694 |
| Citation | 673 So.2d 520 |
| Parties | 21 Fla. L. Weekly D960 Michael D. MORRIS and Diana Morris, Appellants, v. HOME DEPOT U.S.A., INC., Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Seminole County; S. Joseph Davis, Senior Judge.
Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for Appellants.
Clement L. Hyland and Michael C. Tyson, of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellee.
AFFIRMED.
I dissent because I agree with appellants that in this case, the court should have given a res ipsa loquitur instruction to the jury, and failure to do so resulted in harmful error to the appellants.
In this case, the appropriateness vel non of the res ipsa instruction turned on a disputed issue of fact: Was the instrumentality which caused appellant's injuries in the sole control of appellees? The appellees' witnesses and evidence tended to show that a tall stack of boxes piled up on pallets in the aisle of a Home Depot Store fell on appellant and injured him because he pulled the stack over on himself, or unbalanced them by trying to climb up them. Appellant's evidence at trial, as evidenced by recorded recollection, 1 was to the contrary. At the time of trial, the appellant had suffered loss of memory due to his head injuries caused by the falling boxes. Because of that circumstance, the court allowed counsel to read the appellant's handwritten account of the accident, prepared shortly after the incident:
I was [at] Home Depot looking at the unfinished vanities. I moved approximately 1 to 1/2 feet from a pallet. While looking at the vanities I head a creaking sound. Looked up and saw boxes falling. I tried to push them back into place because I [k]new I would not have time to get out of the way. I remember falling back over something. What it was I do not know. And do not remember much from that point. I remember asking at the hospital how did I get here and what happened.
Res ipsa loquitur is a rule of evidence, as distinguished from one of law. It allows the jury to draw an inference of negligence where the instrumentality causing the injury was under the exclusive control of the defendant. 2 And the accident is one that would not, in the ordinary course of events, have occurred without negligence. 3 It is a permissible, not a compulsory inference of negligence. 4
It is appropriate where direct evidence of negligence is unavailable to the plaintiff due to the unusual circumstances of the accident. Goodyear. The failure to give a res ipsa instruction results in the jury being oblivious to the fact that it is not necessary for a plaintiff to present direct testimony on proximate cause. Holman v. Ford Motor Company, 239 So.2d 40 (Fla. 1st DCA 1970).
Direct evidence of other potential causes, which are not sufficiently extensive to furnish a full and complete explanation of the occurrence does not bar a res ipsa instruction. Marrero v. Goldsmith, M.D., 486 So.2d 530 (Fla.1986); Lord v. J.B. Ivey & Co., 499 So.2d 12, 13 (Fla. 1st DCA 1986), rev. denied, 508 So.2d 15 (Fla.1987). Where evidence is conflicting on a point of causation or control even if the evidence is direct, a res ipsa instruction may still be proper. McDonald v. Medical Imaging Center of Boca Raton, 662 So.2d 733 (Fla. 4th DCA 1995); Metropolitan Dade County v. St. Claire, 445 So.2d 614 (Fla. 3d DCA 1984); Coleman v. Allen, 320 So.2d 864 (Fla. 1st DCA 1975); cert. denied 336 So.2d 105 (Fla.1976).
I submit that as in this case, where there is conflict in the record which establishes the basis for a res ipsa instruction, the doctrine is not rendered inapplicable. Holman. See also Pape v. DePew, 281 So.2d 224, 225 (Fla. 1st DCA), cert. denied, 287 So.2d 679 (Fla.1973) (citing Holman):
[T]he evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur are present. [citations omitted] The conclusion that negligence is the most likely explanation of the accident, or injury, is not for the trial court to draw, or to refuse to draw so long as plaintiff has produced sufficient evidence to permit the jury to draw the inference of negligence even though the court itself would not draw that inference; the court must still leave the question to the jury where reasonable men may differ as to the balance of probabilities. (emphasis supplied)
Holman at 45. Where the exact cause of the plaintiff's injuries is speculative and evidence to establish it unavailable, the Florida Supreme Court has adopted 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. South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla.1960).
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. (emphasis supplied)
Looking at the evidence as presented by the appellant in its best light, this situation appears entirely...
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Monforti v. K-Mart, Inc.
...in this case. See Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978); Morris v. Home Depot U.S.A., Inc., 673 So.2d 520 (Fla. 5th DCA 1996) (Sharp, W., J., dissenting); Pinecrest Stables, Inc. v. Hill, 487 So.2d 82 (Fla. 5th DCA 1986); Holman v. Ford Motor Company, ......