FIRESTONE TIRE & RUBBER CO., INC., A FOREIGN CORPORATION, APPELLANT,
v.
JOYANNE LIPPINCOTT, APPELLEE
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Firestone appealed a jury verdict awarding damages to Mrs. Lippincott for a hernia allegedly caused by negligently placing a spare tire upside down in her car's wheel well. The court reversed, holding that the injury was not reasonably foreseeable as a matter of law and therefore Firestone owed no duty to protect against it.
The court held that placing a spare tire upside down in a wheel well would not cause reasonably foreseeable physical injury to someone removing it, and therefore Firestone owed no duty to protect against such injury. The directed verdict should have been granted.
[1] Foreseeability of injury is a prerequisite to the imposition of a duty upon a defendant.
[2] If an injury is not reasonably foreseeable, then there can be no recovery.
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Join FLexlaw to unlock all legal intelligence“Foreseeability of injury is a prerequisite to the imposition of a duty upon a defendant.”
Establishes the foundational legal principle that foreseeability is required before liability can attach.
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Join FLexlaw to unlock all legal intelligenceFirestone installed two new tires on Mrs. Lippincott's car, mounting one old tire as a spare in the wheel well—incorrectly placed upside down. After h…
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COBB, Judge.
Mrs. Lippincott purchased two new tires at one of Firestone’s stores. The new tires were mounted on the front, the old front tires were mounted on the rear, and one of the old rear tires was placed in the wheel well of the car as a spare.
On the way home from the Firestone store Mrs. Lippincott went over a railroad track and heard a loud metal clatter coming from her car. When she got home she investigated and determined that the noise had come from the spare tire, which was loose because it had been placed in the wheel well upside down. She decided to take the spare tire out and turn it right side up. She got the tire out of the wheel well, but her back was hurting and she felt sick to her stomach; so she went and got a neighbor to put the spare tire back into the wheel well for her. Afterwards, Mrs. Lip-pincott noticed a bump in the area above her navel. She continued to have physical discomfort with her abdomen and went to her doctor. She had a hernia which was operated upon.
Mrs. Lippincott sued Firestone for negligently causing her hernia. Firestone moved for a directed verdict on the ground that the injury was not reasonably foreseeable. The trial court denied the motion. The jury returned a verdict in favor of Mrs. Lippincott and the trial court entered a final judgment accordingly. Firestone appeals that judgment, claiming that the trial court erred in not granting Firestone’s motion for directed verdict.
Foreseeability of injury is a prerequisite to the imposition of a duty upon a defendant. Smith’s Bakery, Inc. v. Jernigan, 134 So. 2d 519 (Fla. 1st DCA 1961); Memorial Park, Inc. v. Spinelli, 342 So. 2d 829 (Fla. 2d DCA 1977). If injury is not reasonably foreseeable, then there can be no recovery. Smith v. City Products Corp., 147 So. 2d 590 (Fla. 1st DCA 1963); Pope v. Pinkerton-Hayes Lumber Co., 120 So. 2d 227 (Fla. 1st DCA 1960), cert. denied, 127 So. 2d 441 (Fla.1961).
A foreseeable consequence is one which a prudent man would anticipate as likely to result from an act. Jacksonville, Tampa, and Key West Railway Co. v. Peninsular Land Transport and Mfg. Co., 27 Fla. 1, 9 So. 661 (1891), rehearing denied, 27 Fla. 157, 9 So. 689 (1891); Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (1925); Sharon v. Luten, 165 So. 2d 806 (Fla. 1st DCA 1964).1 The consequences that a prudent man would anticipate as likely to result from an act are those consequences that happen so frequently that they may be expected to happen again and are, therefore, probable consequences. Cone v. Intercounty Telephone & Telegraph Co., 40 So. 2d 148 (Fla.1949); General Telephone Co. v. Mahr, 153 So. 2d 13 (Fla. 2d DCA 1963), cert. denied, 163 So. 2d 285 (Fla.1964). Foreseeable consequences are not “what might possibly occur.” Stanage v. Bilbo, 382 So. 2d 423 (Fla. 5th DCA 1980); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA 1977).2
The very purpose of having a spare tire presumes its lifting and removal from the wheel well of a car when needed. The lifting of the tire, which was the cause of the hernia, would require the same effort regardless of the fact that the tire rattled when the car was in motion.
In the case sub judice, it was not reasonably foreseeable that placing the spare tire upside down in the wheel well would cause physical injury to someone removing it.
REVERSED.
DAUKSCH, C. J., and ORFINGER, J., concur. . Justice Cardozo described it as the risk reasonably to be perceived by the eye of vigilance. Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).
. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Id.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Cassel v. Price, 396 So. 2d 258 (Fla. 1st DCA 1981)…o. 2d 1195 (Fla. 3rd DCA 1980), (summary judgment affirmed, no foreseeability); Phillips v. Styers, 388 So. 2d 221 (Fla. 2nd DCA 1980), (recovery barred, plaintiffs negligence sole cause of accident); Firestone Tire & Rubber Co. Inc. v. Lip-pincott, 383 So. 2d 1181 (Fla. 4th DCA 1980), (jury verdict for plaintiff reversed, injury not foreseeable); Fellows v. Citizens Federal Savings & Loan Assn., 383 So. 2d 1140 (Fla. 4th DCA 1980), (summary judgment for defendant affirmed, negligent design of driveway not leg…
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Marietta Goode v. Walt Disney World Co., 425 So. 2d 1151 (Fla. 5th DCA 1982)…to result from an act and are those that happen so frequently that they may be expected to happen again and are therefore probable consequences. Foreseeable consequences are not “what might possibly occur.” Firestone Tire & Rubber Co. v. Lippincott, 383 So. 2d 1181 (Fla. 5th DCA), review denied, 392 So. 2d 1376 (Fla.1980). Foreseeability depends in part on whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that “in the field…
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Fla. Power & Light Co. v. Lively, 465 So. 2d 1270 (Fla. 3d DCA 1985)…ent is not the same as foreseeability. There must be a probability that something will occur, not a possibility. Crown Liquors of Broward, Inc. v. Even [*1276] rud, 436 So. 2d 927 (Fla. 2nd DCA 1983); Firestone Tire & Rubber Co., Inc. v. Lippincott, 383 So. 2d 1181 (Fla. 5th DCA 1980); Stanage v. Bilbo, 382 So. 2d 423 (Fla. 5th DCA 1980); State, Agency of Stephen Boyles v. Simer, 363 So. 2d 357 (Fla. 1st DCA 1978); Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA 1977). As implied, if not affirmatively appe…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Pinkerton-Hays Lumber Co., Inc. v. Doyle Pope, 127 So. 2d 441 (Fla. 1961)
- Jacksonville v. Peninsular Land, 27 Fla. 1 (Fla. 1891)
- Cone v. Inter Cnty. Tel. Tel. Co., 40 So.2d 148 (Fla. 1949)
- Doyle Pope v. Pinkerton-Hays Lumber Co., Inc., 120 So. 2d 227 (Fla. 1st DCA 1960)
- Stark v. Holtzclaw, 90 Fla. 207 (Fla. 1925)
- City OF Miami v. Gates, 352 So. 2d 542 (Fla. 3d DCA 1977)
- Smith's Bakery v. Jernigan, 134 So. 2d 519 (Fla. 1st DCA 1961)
- Gen. Tel. Co. OF Fla., Inc. v. Mahr, 153 So. 2d 13 (Fla. 2d DCA 1963)
- Mem'l Park, Inc. v. Spinelli, 342 So. 2d 829 (Fla. 2d DCA 1977)
- Stanage v. Bilbo, 382 So. 2d 423 (Fla. 5th DCA 1980)