CARMEN Z. ARAGON, AS ADMINISTRATRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF JUAN ARAGON, DECEASED, APPELLANT,
v.
FLORIDA EQUIPMENT COMPANY OF MIAMI, INC., A FLORIDA CORPORATION, PAUL MELOTTO, CONSOLIDATED MUTUAL INSURANCE COMPANY, A FOREIGN CORPORATION, TERMINAL TRANSPORT COMPANY, INC., A FOREIGN CORPORATION, SARKIE JAMES KRIKORIAN, CONTINENTAL NATIONAL AMERICAN INSURANCE COMPANY, A FOREIGN CORPORATION, JOHN NASH, F. S. DEGROFF AND COSMOPOLITAN MUTUAL INSURANCE COMPANY, APPELLEES
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Carmen Aragon, as administratrix of a deceased's estate, appealed final judgments dismissing her negligence action against multiple defendants in a fatal accident case. The Florida District Court of Appeal reversed and remanded as to certain defendants due to improper jury instructions on comparative negligence, while affirming judgments for others.
The trial court committed reversible error by omitting a proper instruction on concurring negligence that was requested by plaintiff and appropriate under the facts, and by giving an improper instruction limiting the jury to an all-or-nothing verdict. The cause must be remanded for a new trial as to the defendants tried before the jury.
[1] A trial court commits reversible error by failing to read a proper jury instruction that was requested in writing and relevant to the factual situation.
[2] In a comparative negligence case, an instruction stating that the verdict must be entirely for the plaintiff or entirely for the defendants is improper and misleading.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At the charge conference, the plaintiff, in writing, requested Instruction 5.1(b) of the Standard Jury Instructions. This instruction deals with concurring negligence and was proper under the factual situation in this case. Although the trial court indicated it would give the instruction, it failed to read the instruction to the jury.”
Establishes the trial court's failure to provide a proper jury instruction on concurring negligence despite indicating it would do so and despite the instruction being appropriate to the facts.
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Join FLexlaw to unlock all legal intelligenceJuan Aragon was killed in an accident involving multiple parties including Florida Equipment Company, Paul Melotto, Terminal Transport Company, Sarkie…
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PEARSON, Judge.
The plaintiff, Carmen Z. Aragon, as ad-ministratrix of the estate of Juan Aragon, deceased, brings these consolidated appeals from final judgments for defendants Florida Equipment Company of Miami, Inc., and Paul Melotto and their insurer Consolidated Mutual Insurance Company; Terminal Transport Company, Inc., and Sarkie James Krikorian and their insurer, Continental National American Insurance Company; John Nash and F. S. DeGroff and their insurer, Cosmopolitan Mutual Insurance Company. A summary final judgment was entered for defendants Cosmopolitan Mutual Insurance Company and a judgment on directed verdict for defendants F. S. De-Groff and John Nash, but the cause was tried before a jury on the issues between the plaintiff and Krikorian, Terminal Transport Company, Inc., and Continental National American Insurance Company. Although a separate notice of appeal was filed from each judgment, the appellant’s brief presents five points. Each point concerns the trial of the cause wherein the appellant was plaintiff and Florida Equipment Company of Miami, Inc., Sarkie James Krikorian and Continental National American Insurance Company were defendants.
Two of appellant’s points, directed to the instructions given to the jury, in our opinion, present reversible error. We do not consider the other points raised, but reverse and remand the cause for a new trial with regard to the last-stated defendants. With regard to all other defendants, the judgments are affirmed.
There was extensive and conflicting evidence before the jury on the question of liability. Clear cut, factual issues' were presented on whether the defendants and the deceased plaintiff were negligent in their actions immediately preceding the accident. At the charge conference, the plaintiff, in writing, requested Instruction 5.1(b) of the Standard Jury Instructions. This instruction deals with concurring negligence and was proper under the factual situation in this case. Although the trial court indicated it would give the instruction, it failed to read the instruction to the jury. The record shows that the plaintiff objected at the end of the court’s charge and attempted to call to the court’s attention its oversight, but the oversight was not corrected.
The court also erred in giving the following instruction in this comparative negligence case:
“This case will result in your deciding either a verdict all the way for the plaintiff or a verdict all the way for the defendants.”
This instruction introduced confusion and was improper. Therefore, upon a holding that the court’s instruction as a whole was improper and misleading, the cause is remanded for a new trial. See Florida Power & Light Company v. McCollum, 140 So. 2d 569 (Fla.1962); and see generally the principles of law in Sirmons v. Pittman, 138 So. 2d 765, 770 (Fla. 1st DCA 1962).
Affirmed in part, reversed in part and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Borenstein v. Raskin, 401 So. 2d 884 (Fla. 3d DCA 1981)…2d 194 (Fla.3d DCA 1963), cert. denied, 165 So. 2d 178 (Fla.1964) (issue of jury instruction over objection of counsel preserved for appeal where instruction erroneous and prejudicial.) See, e.g., Aragon v. Florida Equipment Company of Miami, Inc., 368 So. 2d 90 (Fla.3d DCA 1979) (erroneous jury instructions given in comparative negligence introduced confusion).…
Authorities Cited
- Fla. Power & Light Co. v. McCOLLUM, 140 So. 2d 569 (Fla. 1962)
- Sirmons v. Pittman, 138 So. 2d 765 (Fla. 1st DCA 1962)