Orange County v. Piper
Decision Date | 14 April 1988 |
Docket Number | 87-1153,Nos. 87-663,s. 87-663 |
Citation | 13 Fla. L. Weekly 944,523 So.2d 196 |
Parties | 13 Fla. L. Weekly 944 ORANGE COUNTY, a political subdivision of the State of Florida, Appellant, v. William E. PIPER and Kathryn Fernandez Piper, his wife, Appellees. William E. PIPER and Kathryn Fernandez Piper, his wife, Appellants, v. ORANGE COUNTY, a political subdivision of the State of Florida, Appellee. |
Court | Florida District Court of Appeals |
Steven J. Lengauer, of Pitts, Eubanks, Hilyard, Rumbley & Meier, P.A., Orlando, for Orange County.
William W. Fernandez, Orlando, and Calvin J. Faucett, Lake Mary, for William and Kathryn Piper.
William Piper appeals from a final judgment awarding him $12,890.70 in damages. He suffered personal injuries when he fell into a trash compactor which was operated by Orange County. He argues the trial court erred in failing to read Florida Standard Jury Instruction 3.5(f) to the jury. Orange County cross-appeals from an order granting Mrs. Piper a new trial on the issue of damages for loss of consortium. We reverse on both grounds.
Failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that:
(1) The requested instruction accurately states the applicable law,
(2) The facts in the case support giving the instruction, and
(3) The instruction was necessary to allow the jury to properly resolve all issues in the case.
Giordano v. Ramirez, M.D., 503 So.2d 947 (Fla. 3rd DCA 1987); Alderman v. Wysong & Miles Co., 486 So.2d 673 (Fla. 1st DCA 1986).
Initially, both parties requested Florida Standard Jury Instruction 3.5(f) be read to the jury. 3.5(f) as submitted by Piper stated:
Whether Defendant Orange County negligently failed to maintain its premises in a reasonably safe condition; or whether Defendant Orange County negligently failed to correct a dangerous condition of which Defendant Orange County either knew or should have known by the use of reasonable care; or whether Defendant Orange County negligently failed to warn Plaintiff William E. Piper of a dangerous condition concerning which Defendant Orange County had, or should have had, knowledge greater than that of Plaintiff William E. Piper.
We reject the County's argument that Florida Standard Jury Instruction 3.5(f) inaccurately states the law as it applies to governmental entities. Cf. Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). If facts at trial established a basis to find that Orange County failed to maintain its premises in a reasonably safe condition, or to warn or correct a known dangerous condition, the instruction should have been given.
The failure to give this instruction was not harmless error in this case especially in light of the jury's finding of 90/10% liability in favor of Orange County. Much of Piper's evidence on these issues was excluded by the trial judge. However, the procedure for dumping trash in the compactor, as prescribed by the County, and the necessary proximity of vehicles and persons to the pit, without a guardrail, along justified the giving of the instruction and the jury's finding of some liability on the part of Orange County.
With respect to the loss of consortium claim we find that Mrs. Piper's failure to file her claim with the County or join in Mr. Piper's claim, 1 as required by section 768.28(6), Florida Statutes (1981) warrants its dismissal. 2 Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983). See also Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Compliance with 768.28(6) is clearly a condition precedent to maintaining a suit.
Mrs. Piper's reliance on this court's opinion in Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982), for the principle that a technical defect in a notice can be waived when the notice is sufficient to provide authorities with an opportunity to investigate shortly after the occurrence, apparently has been impliedly overruled by Levine. Cf. Franklin v. DHRS, 493 So.2d 17 (Fla. 5th DCA 1986) ( ).
Florida case law recognizes that loss of consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium. Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955); see also Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA), cert. denied, 297 So.2d 836 (Fla.1974); Resmondo v. International Builders of Fla., Inc., 265 So.2d 72 (Fla. 1st DCA 1972) ( ); but see Gates v. Foley, 247 So.2d 40 (Fla.1971) ( ). Therefore, the filing of the required notice by ...
To continue reading
Request your trial-
Keramati v. Schackow
...See Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982), overruled on other grounds by Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla.1988). At this point, the depositions and allegations in the record are in conflict as to w......
-
Groves v. Firebird Raceway, Inc.
...spouse...." Champagne v. State Farm Mut. Auto. Ins. Co., 586 N.Y.S.2d 813, 815 (N.Y.App.Div.1992); accord Orange County v. Piper, 523 So.2d 196, 198 (Fla.Dist.Ct.App.1988); ("loss of consortium is a separate cause of action belonging to the spouse of the injured married partner, and though ......
-
Hart v. Stern, 5D01-2264.
...and 3) the instruction was necessary to allow the jury to properly resolve all of the issues in the case. Reyka; Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), review denied, 531 So.2d 1354 (Fla.1988); see also Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA Applying this standard of r......
-
Metropolitan Dade County v. Coats
...So.2d 826 (Fla. 1st DCA 1984). Affirmed. 1 We decline to adopt the statement of the Fifth District Court of Appeal in Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), review denied, 531 So.2d 1354 (Fla.1988), that Whitney was overruled by Levine v. Dade County School Board, 442 So.2d 2......