Perry v. Red Wing Shoe Co., 90-1710

• Citation: 597 So.2d 821
• Decision Date: 11 February 1992
• Docket Number: No. 90-1710,90-1710
• Parties: Lee PERRY, et al., Appellants, v. RED WING SHOE COMPANY, etc., et al., Appellees. 597 So.2d 821, 17 Fla. L. Week. D449, Prod.Liab.Rep.(CCH)P. 13,122
• Court: Court of Appeal of Florida (US)

Page 821

597 So.2d 821

Lee PERRY, et al., Appellants, v. RED WING SHOE COMPANY, etc., et al., Appellees.

No. 90-1710.

597 So.2d 821, 17 Fla. L. Week. D449,

Prod.Liab.Rep.(CCH)P. 13,122

District Court of Appeal of Florida,

Third District.

Feb. 11, 1992.

On Motion for Rehearing April 7, 1992.

Joe N. Unger; Aronovitz & Associates, Miami, for appellants.

Beckham & Beckham and Pamela Beckham, North Miami Beach, for appellees.

Before NESBITT, FERGUSON and LEVY, JJ.

PER CURIAM.

In this personal injury action, appellants Lee and Bertha Perry, plaintiffs below, seek reversal of a judgment for appellee, Red Wing Shoe Company (Red Wing). The question before us is whether the trial judge properly directed a verdict for Red Wing after the jury had returned a verdict in the Perrys' favor.

On January 31, 1987, Lee Perry purchased a pair of work boots manufactured by Red Wing. Because his job involved working with heavy equipment, Mr. Perry claimed that he had wanted a pair of boots that would protect his toes in the event something heavy fell on his feet. He purchased Red Wing's boots because a steel toe was incorporated in the boots, and there was a hang tag attached to the boots which led him to believe the steel toe would cause the boots to withstand the pressure of heavy falling objects.

On May 22, 1987, while Perry was at a scrap metal junk yard, a 3,000 pound weight fell on his foot, crushing his four small toes, and resulting in their eventual amputation. Perry sued Red Wing on strict liability and negligence theories.

After hearing all the testimony, the jury returned a verdict in Red Wing's favor on the strict liability count, specifically finding that there was no defect in the boot. On the negligence count, the jury allocated 53% of the responsibility for the negligence to Mr. Perry and 47% to Red Wing. After the verdict was returned, Red Wing renewed its earlier motion for directed verdict. Immediately thereafter, the trial judge granted Red Wing's motion.

Motions for directed verdict "should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. The trial judge is authorized to grant such motion only if there is no evidence or reasonable inferences to support the opposing position." Stirling v. Sapp, 229 So.2d 850, 852 (Fla.1969) (citing Hendricks v. Dailey, 208 So.2d 101, 103, cert. denied, 219 So.2d 702 (Fla.1968)). Furthermore, it is ordinarily the function of the jury to weigh and evaluate the evidence, particularly in negligence cases where reasonable people often draw different conclusions from the same evidence. Unless the evidence as a whole with all reasonable deductions to be drawn therefrom points to only one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury and substituting her own evaluation of the weight of the evidence. Nelson v. Ziegler, 89 So.2d 780, 782 (Fla.1956). See also McCabe v. Watson, 225 So.2d 346, 347 (Fla.1969), cert. dismissed, 232 So.2d 739 (Fla.1970); Dean Witter Reynolds, Inc. v. Hammock, 489 So.2d 761, 764-65 (Fla. 1st DCA 1986).

At trial, plaintiffs' expert testified on direct examination that the steel toe in Red Wing's boots protected only the big toe and that therefore the boots were inadequate because the small toes were susceptible to injury. Although he was vigorously cross examined regarding the adequacy of the boots' design he maintained that alternative technology existed whereby all toes could have been protected. Thus, the jury was presented with sufficient evidence to determine what actions were negligent and by whom. It was, therefore, error for the trial judge to "sit as a seventh juror" and set aside the jury's verdict. Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970).

Accordingly, we reverse the judgment under appeal and reinstate the jury's verdict.

ON MOTION FOR REHEARING

Appellee seeks rehearing of this court's February 11, 1992 opinion in the above-styled case. That opinion reversed the trial court's directed verdict and...