Vitale Fireworks Mfg. Co., Inc. v. Marini

• Decision Date: 23 May 1975
• Docket Number: No. V--277,V--277
• Parties: VITALE FIREWORKS MANUFACTURING CO., INC., Appellant, v. Emil Paul MARINI and Rose Christine Marini, Appellees.
• Court: Florida District Court of Appeals

Page 176

314 So.2d 176

VITALE FIREWORKS MANUFACTURING CO., INC., Appellant, v. Emil Paul MARINI and Rose Christine Marini, Appellees.

No. V--277.

District Court of Appeal of Florida, First District.

May 23, 1975.

Rehearing Denied June 18, 1975.

Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.

L. L. Mabie, Jr., of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.

McCORD, Judge.

This is an appeal from a final judgment rendered after a jury verdict in favor of appellees (plaintiffs). This is a companion case to Case No. V 384, 314 So.2d 180. The two appeals arise out of the same accident and the opinion in the companion case is also being released on this date. Since we have related some of the facts necessary to the adjudication of this appeal in our opinion in the companion case, we will not repeat them here, other than to amplify them as may be appropriate to this appeal.

The central question on this appeal is whether or not the trial judge erred in instructing the jury on the doctrine of res ipsa loquitur. Appellee Emil P. Marini lost his hand and part of his forearm as the result of an explosion of a pyrotechnic device in a fireworks display that he was employed to put on for Town and Country Plaza Shopping Center. He and his wife brought this action against Vitale Fireworks Manufacturing Company, Inc., the manufacturer of the fireworks, charging negligence in the manufacture of the rocket that exploded prematurely thereby causing his injury. Marini, a retired fire department captain, had conducted similar fireworks displays for many years previously and had put them on for Town and Country for the past several years. Although he did not read the firing instructions of the manufacturer before putting on this display, it appears from the evidence that he was thoroughly familiar with them from his previous experience. He testified that he had followed the instructions in every respect and there was no direct contradictory testimony.

The display began shortly after dark and Marini's son-in-law, Stephen Fell, was his only helper. In order to fire the rockets, mortar tubes were partially embedded in the ground in a crescent shape. The rockets came in different sizes and each size was packed in a different box. The boxes were placed some distance behind the mortars. The procedure followed by Marini and his son-in-law, as described by both of them, was for Marini to go from mortar to mortar around the crescent firing the rockets. Fell would remove a rocket from the box, meet Marini between the row of boxes and the mortars, hand the rocket to Marini and Fell would then turn and walk to the next box. Marini would walk to the next mortar holding the torch in his right hand and the rocket in his left. He would put the body of the rocket into the mortar, letting the fuse come out of the top of the mortar tube to the ground. The fuse is long enough so that several inches of it would lie on the ground. The fuse is exposed for several inches at the end and is covered with paper for the balance of its length into the rocket. The routine procedure was to trail the rocket fuse behind the mortar, remove a paper covering from the end of the fuse and light the fuse with a torch. A period of several seconds would elapse between the time the end of the fuse was lit and the firing of the lifting charge in the rocket shell. It was agreed by all of the technical witnesses that when the burning end of the fuse reaches the paper covering, the remainder of the fuse burns almost instantaneously. The part of the fuse which is exposed to the air burns at the rate of one inch per second.

Marini testified that he normally had sufficient time after lighting the end of the fuse to step back away from the mortar. He further testified that after placing the shell which caused his injury in the tube, he bent over from a standing position behind the tube and applied the torch to the end of the fuse; that almost instantaneously there was an explosion and he realized his left arm was injured and that he also had some burns about his face. His injury terminated the display.

There was no direct evidence of negligence in the manufacture of the rocket. Marini's case is based upon the evidence presented as to his own lack of negligence and upon the doctrine of res ipsa loquitur. No one was in a position to see Marini clearly when the accident occurred. Several witnesses testified that the last rocket fired in the display (the one which caused the injury) did not seem to go as high as the others. Estimates as to its height ranged from just a few feet off the ground to approximately 65 feet. Marini stated that he heard only one explosion and as soon as he heard it, he realized that he had been hurt. The other witnesses saw the rocket explode in the air. There was no damage to the mortar tube.

The jury was given two forms of verdict and were instructed that should they find no negligence on the part of Marini, they should use one form while if they found that there was negligence on his part, they should use another form, inserting the percentage of negligence in a blank. The jury returned the verdict form finding Marini free of negligence. Appellant contends that a finding of no negligence on the part of Marini is contrary to the laws of physics; that he must have had his hand over the mortar tube when the explosion occurred; that such was negligence as the instructions of the manufacturer for firing the rockets warns that the operator should never expose any part of the hands over the mouth...