Triana v. Fi-Shock, Inc.

• Citation: 763 So.2d 454
• Decision Date: 14 June 2000
• Docket Number: No. 3D99-899., No. 3D99-699, No. 3D99-433
• Parties: Manuel TRIANA and Cecilia Triana and Edelmiro Espinoza, Appellants, v. FI-SHOCK, INC., a foreign corporation and Builders Square, Inc., a foreign corporation, Appellees.
• Court: Court of Appeal of Florida (US)

763 So.2d 454

Manuel TRIANA and Cecilia Triana and Edelmiro Espinoza, Appellants, v. FI-SHOCK, INC., a foreign corporation and Builders Square, Inc., a foreign corporation, Appellees.

Nos. 3D99-433, 3D99-699, 3D99-899.

District Court of Appeal of Florida, Third District.

June 14, 2000.

Rehearing Denied August 9, 2000.

James C. Kelley; Montero, Finizio, Velasquez, Weissing & Reyes, P.A. (Ft.Lauderdale); Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., and Joel S. Perwin, for appellants.

Adorno & Zeder, P.A., and Raoul G. Cantero, III, and Gregory A. Victor, Miami, and Nicole E. Mestre, for appellees.

Before GODERICH, GREEN, and SORONDO, JJ.

PER CURIAM.

This is an appeal from a final judgment following a jury trial in a products liability case. The plaintiff, Edelmiro Espinoza ("Espinoza"), alleged that he was shocked by an electric pet deterrent device ("the device") while he was installing cable at the home of the defendants, Manuel and Cecilia Triana. Espinoza sued the Trianas, and later added the device's manufacturer, Fi-Shock, Inc. ("Fi-Shock"), as a party defendant. The jury found the Trianas to be one-hundred percent (100%) liable for Espinoza's injuries, and also found no liability on the part of Fi-Shock. Both Espinoza and the Trianas appeal claiming that the trial court abused its discretion in declining to give a jury instruction and special interrogatory, requested by Espinoza, on whether Fi-Shock had a duty to Espinoza, an unknown third party, to warn the Trianas of the device's supposed dangers. Because Espinoza failed to plead that Fi-Shock owed him a duty to warn the Trianas, and because we find that this issue was not tried by the implied consent of the parties, we affirm.¹

A day or two before the accident, the Trianas hired Espinoza to reinstall cable television in their family home. Espinoza spoke with Mr. Triana about the job and inspected the premises. At that time, there was no pet deterrent device installed in the Trianas' home. Shortly thereafter the Trianas purchased a Fido-Shock pet deterrent device, which delivers an electrical signal intended to mildly shock small animals, presumably for training purposes, in order to stop their dog from tearing the screen door of the patio enclosure. This screen door was located a few feet from a swimming pool.

Mr. Triana installed the device across the bottom of the patio screen door, with wire running to the transformer, and then out through a metal rod on the patio floor, positioning the wire approximately a foot above the ground. Any person, entering through the patio door, would have to step over the activated wire to avoid being shocked. Triana activated the device before Espinoza came to install the cable. Triana did not tell Espinoza that he had installed and activated the device, or that there was an electrified wire strung across the patio door. Moreover, Triana did not post any type of sign warning about the device or wire, even though such sign could be ordered from Fi-Shock for one dollar ($1.00).

Espinoza came to the Trianas' house, where he dug approximately a one-hundred (100) foot trench, in which the cable would be placed. After digging the trench for several hours, Espinoza went to speak to Mr. Triana, who he thought was on the patio. Upon opening the handle of the patio screen door, Espinoza started to walk through the doorway, when his bare shin came into contact with the energized wire that was strung across the doorway. Espinoza's bare feet, shins and wet hands produced resistance to the flow of electricity, causing a surge of current through his body, which threw him to the ground. Espinoza managed to get up, and go into the Trianas' garage, where he was later found by Mr. Triana lying on his back moaning and shaking. Thereafter, this lawsuit ensued.

Espinoza's suit was originally filed only against the Trianas as the owner of the property on which he was injured. The Trianas then filed a third-party complaint against Fi-Shock for contribution and indemnification.² Thereafter, Espinoza filed an amended complaint adding Fi-Shock as a defendant, alleging that Fi-Shock was negligent in the design, manufacture and distribution of the device. Neither of Espinoza's complaints directly or implicitly alleged that Fi-Shock had failed to provide the Trianas with adequate warnings.

Fi-Shock moved for summary judgment against Espinoza on two occasions. The first motion for summary judgment was denied. A week before trial, Espinoza conceded in his response to Fi-Shock's second motion for summary judgment, that there was no evidence to support his claim for negligent manufacture, and that there was "limited evidence" to support his claim for negligent design. However, Espinoza argued for the first time, that Fi-Shock breached a duty to him by failing to adequately warn the Trianas that the device could injure some people.

The trial court bifurcated the trial into liability and damages phases. During the trial on liability, over Fi-Shock's objection, Espinoza's expert was permitted to testify about the adequacy of the warnings contained in the device's instruction manual.³ This expert testified that Fi-Shock's instructions were insufficient because there were no warnings on the box or in the instruction manual describing the risk of shock, or advising that the electricity produced by the device could possibly injure people.⁴ Espinoza's expert did admit, however, that the device itself was not defective either in design or manufacture. Thus, following Espinoza's expert's testimony, the sole issue regarding Fi-Shock's liability to Espinoza became, over objection, whether Fi-Shock's instruction manual contained adequate warnings.⁵

Conversely, Fi-Shock's expert testified that the device was safe. In fact, prior to this incident, Fi-Shock had never received notice that any person, or small animal, had ever been injured by the device. The expert also testified that the device was approved by Underwriters Laboratories ("UL"), an independent product testing organization, and deemed safe. Both the device, and the warnings in the instruction manual, complied with UL's standards. Fi-Shock's expert testified that if Espinoza was injured by the device, it was not due to a lack of warnings. Rather, the expert testified that contrary to Fi-Shock's specific instructions, Espinoza's injury occurred because Triana had installed the device on his patio.⁶

At the close of Espinoza's case, Fi-Shock moved for a directed verdict on grounds, among others, that Espinoza had never pled a claim against Fi-Shock for inadequate warnings, and since that was the sole basis of Espinoza's claim against Fi-Shock, that it was entitled to a directed verdict. The trial court reserved ruling on the motion. After the close of all the evidence, Fi-Shock again moved for a directed verdict, on the same grounds, which the trial judge again reserved ruling on, noting that the jury verdict might render a ruling moot.

During the charge conference, Espinoza requested a special jury instruction, purportedly based on Hayes v. Spartan Chemical Company, 622 So.2d 1352 (Fla. 2d DCA 1993), that a manufacturer has a duty to third parties, to adequately warn homeowners of the dangers of a product so that the homeowners can protect third parties who come onto their property. Espinoza also requested that the following special interrogatory be placed on the verdict form: "Did Defendant, Fi-Shock, Inc., have a duty to warn Defendants, Triana, that [the device] could be dangerous to people?" Fi-Shock again objected, claiming that both the instruction and interrogatory were inappropriate in this case. The trial court agreed, and declined to give the instruction or the interrogatory. The Trianas never objected to the trial court's failure to give the instruction and/or interrogatory.

The jury found that the device caused Espinoza's accident; that the Trianas had a duty to warn Espinoza that the device had been installed on their property; that the Trianas failed to warn Espinoza; that the Trianas' failure to warn Espinoza was the legal cause of the accident; and that Fi-Shock had prior notice that the device could be dangerous to people. The jury found in favor of Espinoza and against the Trianas. The jury also found that Fi-Shock owed no duty to Espinoza. This appeal followed.

On this appeal, both Espinoza and the Trianas claim that the trial court's refusal to give Espinoza's requested jury instruction and interrogatory, regarding whether Fi-Shock owed a duty to Espinoza to warn the Trianas of the dangers of the device, constituted reversible error.⁷ We disagree.

The decision on whether to give a particular jury instruction, or include a special interrogatory on a verdict form, is within the trial court's discretion, and absent "prejudicial error," such decisions should not be disturbed on appeal.⁸See Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990)

(stating that "[d]ecisions regarding jury instructions are within the sound discretion of the trial court and...