Strahan v. Gauldin
| Decision Date | 17 March 2000 |
| Docket Number | No. 5D99-874., No. 5D99-230 |
| Citation | 756 So.2d 158 |
| Parties | Arthur P. STRAHAN, etc., et al., Appellants, v. Dewey L. GAULDIN, Appellee. |
| Court | Florida District Court of Appeals |
Richard A. Sherman and Rosemary B. Wilder of Richard A. Sherman, P.A., Fort Lauderdale, and Scott Turner of Jack, Wyatt, Tolbert & Thompson, P.A., Melbourne, for Appellants.
Jerry D. McGreal and James I. Knudson of Knudson & McGreal, P.A., Rockledge and Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellee.
Arthur P. Strahan, Patricia Strahan, Arthur P. Strahan, Jr., and Strahan Music Inc. (collectively "the Strahans") appeal the final judgment granted to Dewey L. Gauldin for damages that resulted when a juke box fell out of a pickup truck and injured him. The Strahans contend that the trial court erred in instructing the jury on res ipsa loquitur, awarding Gauldin fees pursuant to the offer of judgment statute, and by applying a multiplier to those fees.
Gauldin was injured when, without assistance, Arthur P. Strahan, Jr. attempted to load a juke box upon the bed of a pickup truck equipped with a rear power liftgate. Strahan had successfully raised the liftgate with the juke box on it, but the box then slid off the truck and hit Gauldin. Strahan, who had loaded equipment into trucks many times, described to the jury how he was attempting to load this juke box the moment before he lost control:
Strahan speculated that perhaps the wheels on the juke box caught on something, but he was unable to explain the loss of control although he was the sole person in control of the juke box just prior to its conversion into the missile that allegedly struck Gauldin.
Notwithstanding Strahan's own inability to reach a conclusion as to the cause of the accident, the Strahans argue that Gauldin's testimony in a discovery deposition constituted direct evidence of negligence that should have prevented the trial court from instructing the jury on res ipsa loquitur. At trial, Gauldin testified that his back was to Strahan's loading activity and that he was facing the opposite direction when he was struck. In an earlier deposition, however, Gauldin testified, "No, I saw what happened, he slipped up in the back of the greasy truck, fell down and that is what shoved the juke box out." He also testified that because he did not appreciate the extent of his injuries, he did not inspect the truck bed at the time of the accident.
We do not believe that Gauldin's speculation that the accident occurred through Strahan's negligence rendered the res ipsa loquitur instruction improper in this case. Basic common sense tells us that juke boxes do not normally fly out of stationary pickup trucks absent some negligence on the part of the one in control or an intervening act of God.
Justice Wells set forth the status of res ipsa loquitur in Florida jurisprudence in McDougald v. Perry, 716 So.2d 783 (Fla. 1998).1 McDougald suffered injuries when a 130 pound spare tire came out of its cradle as Perry drove his tractor trailer over railroad tracks. The opinion recognizes that some actions do not require experts to tell a jury that events do not usually occur in the absence of negligence. The court reached the conclusion that the spare tire escaping from the cradle and crashing into McDougald "is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire." 716 So.2d 783, 786. We likewise conclude that a juke box falling from the bed of the pickup truck during the process of loading, and causing injury to a nearby pedestrian, is not the type of accident which, on the basis of common experience and as a matter of general knowledge, would occur but for the failure to exercise reasonable care. In so ruling, we find this case to be, as McDougald notes, one of those rare instances where the doctrine of res ipsa loquitur should be applied.
Prior to trial, Gauldin extended an offer of judgment in the amount of $50,000 to the Strahans collectively. Florida Rule of Civil Procedure 1.442(c)(3) states:
A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.
(Emphasis added). The Strahans, citing to McFarland & Son, Inc. v. Basel, 727 So.2d 266 (Fla.App. 5th DCA 1999), rev. denied, No. 95,408, 743 So.2d 508 (Fla. Sept. 15, 1999), claim that the trial court should not have awarded fees because Gauldin failed to allocate an amount for which he was willing to settle with respect to each of the co-defendants.
In McFarland, the plaintiff was injured in an automobile accident and sued the driver of the automobile in which the plaintiff was a passenger, sued the driver of the other vehicle, and sued the employer of the driver of the other vehicle. The complaint against the employer alleged negligent hiring and/or training. The plaintiff made a single offer of judgment to all three defendants jointly. This court agreed with the trial court's decision not to award fees because the offer made to the three defendants did not state the amount of the offer attributable to each party.
We do not agree with the Strahans that McFarland controls the result in this case. An important difference between McFarland and the instant case is that in McFarland, liability, pursuant to the allegations of the complaint, could be allocated on the basis of fault among each of the defendants. In McFarland, there were separate issues relating...
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