FRIEDA SOBEL AND PHILIP SOBEL, HER HUSBAND, APPELLANTS,
v.
JEFFERSON STORES, INC., APPELLEE
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In a slip-and-fall case, the trial judge granted a directed verdict for the defendant after a mistrial was declared due to a hung jury, finding the plaintiffs failed to prove the defendant's liability. The appellate court reversed, holding that the defendant waived any challenge to its identity as the responsible entity through its trial conduct and that the evidence clearly established the defendant owned and operated the store where the plaintiff fell.
The court held that Jefferson Stores, Inc. waived and was estopped from asserting that it was not the responsible entity through its trial conduct, including presenting its corporate representative at trial without any claim of non-identity. The court also held that the evidence presented established that Jefferson Stores, Inc. was the owner and operator of the store where the plaintiff fell.
[1] A defendant waives the right to challenge the sufficiency of the plaintiff's proof on an issue if the defendant fails to raise that challenge until after the plaintiff re…
[2] A defendant's conduct throughout discovery and trial, including producing a corporate representative and defending the case without reference to a specific defense, can e…
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Join FLexlaw to unlock all legal intelligence“its defense of the case, which it conducted throughout discovery and at trial from opening statement to the end of the plaintiffs' case totally without reference to any claim that it was not the responsible entity — including producing as its corporate representative for deposition and trial the employee who was on the scene in the store when Mrs. Sobel fell — clearly waived and estopped it from asserting any such contention when it leaped from ambush with the claim of a failure of proof only after the plaintiffs had rested.”
Establishes that the defendant's conduct throughout the trial constituted a waiver and estoppel of its identity defense
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Join FLexlaw to unlock all legal intelligenceMrs. Sobel fell in a Jefferson's store located at 163rd Street. The defendant, Jefferson Stores, Inc., filed an answer containing a general denial of …
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SCHWARTZ, Chief Judge.
After a mistrial was declared because of a hung jury in this slip-and-fall action, the trial judge granted a motion for directed verdict upon which ruling had been reserved on the astonishing ground that the plaintiffs had failed to affirmatively show that the defendant, Jefferson Stores, Inc., was liable for the negligent operation of the 163rd Street Jefferson’s store where the accident occurred. On two bases, we summarily reverse.
1. Although Jefferson Stores, Inc.’s answer contained a general denial1 of all the allegations of the complaint, including the routine one that it operated the Jefferson’s store in question, its defense of the case, which it conducted throughout discovery and at trial from opening statement to the end of the plaintiffs’ case totally without reference to any claim that it was not the responsible entity — including producing as its corporate representative for deposition and trial the employee who was on the scene in the store when Mrs. Sobel fell — clearly waived and estopped it from asserting any such contention when it leaped from ambush with the claim of a failure of proof only after the plaintiffs had rested. Argenbright v. J.M. Fields Co., 196 So. 2d 190 (Fla. 3d DCA 1967), cert. denied, 201 So. 2d 895 (Fla.1967); Holyoke Mutual Ins. Co. In Salem v. Concrete Equipment, Inc., 394 So. 2d 193 (Fla. 3d DCA 1981), pet. for rev. denied, 402 So. 2d 609 (Fla.1981); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979), cert. denied, 378 So. 2d 342 (Fla.1979). We had hoped that our prior expressions in these and many other cases were sufficient to sound the death-knell of the kind of prehistoric tactics employed and even permitted to succeed in this case. While we may have been wrong, this opinion will serve to remind the bar that we will not stop trying.
2. We also hold that the evidence proffered during the trial2 and after-wards,3 which the trial judge either in ef-feet permitted the plaintiffs to reopen the case to present or abused his discretion if he did not, see Akins v. Taylor, 314 So. 2d 13 (Fla. 1st DCA 1975), established as a matter of fact the otherwise hardly surprising conclusion that Jefferson [Sjtores, Inc. was indeed the owner of the Jefferson’s [s]tore where the plaintiff fell.
For these reasons, the judgment is reversed for a new trial on the issues of liability and damages.
Reversed.
.We note, with emphasis which should speak for itself, that Fla.R.Civ.P. 1.110(c) provides in part:
When a pleader intends in good faith to deny only a part of an averment, he shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, he may make his denials as specific denials of designated averments or he may generally deny all of the averments except such designated averments as he expressly admits, but when he does so intend to controvert all of its averments, including averments of the grounds upon which the court’s jurisdiction depends, he may do so by general denial, [e.s.]
. This included a letter from Jefferson Stores, Inc., offering to pay Mrs. Sobel’s medical bills, which was properly excluded from evidence as a settlement offer when tendered on the damages issue at a time no one knew or asserted that the identity of the corporation which sent it was relevant to any disputed issue.
. This included the Jefferson Store’s listing in the phone book and its corporate documents as filed in the secretary of state’s office.
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McCURDY v. J.C. Collis & Exxon Corp., 508 So. 2d 380 (Fla. 1st DCA 1987)…. Palm Beach Estates, 110 Fla. 77, 148 So. 544, 548-49 (1933); Lambert v. Nationwide Mutual Fire Insurance Company, 456 So. 2d 517, 518 (Fla. 1st DCA 1984); Pearson v. Harris, 449 So. 2d 339, 343 (Fla. 1st DCA 1984); Sobel v. Jefferson Stores, Inc., 459 So. 2d 433 (Fla. 3rd DCA 1984). For example, in Scott v. Sears, Vail & Williams, P.A., 366 So. 2d 786 (Fla. 1st DCA 1978), this court held it is inconsistent for a party to contend that a court or jury could properly measure his damages when he incorporated in…
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Lugo v. Fla. E. Coast Ry. Co. & J.I. Case Co., 487 So. 2d 321 (Fla. 3d DCA 1986)…timony of an expert was unnecessary would require us to wink at an ambush tactic akin to those we have in the recent past roundly condemned. Capital Bank v. G & J Investments Corp., 468 So. 2d 534 (Fla. 3d DCA 1985); Sobel v. Jefferson Stores, Inc., 459 So. 2d 433 (Fla. 3d DCA 1984); Heimer v. Travelers Insurance Co., 400 So. 2d 771 (Fla. 3d DCA 1981). [*325] The words of Chief Judge Schwartz, concurring in part in Summit Chase Condominium Association, Inc. v. Protean Investors, Inc., 421 So. 2d 562, 565 (Fla…
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Ortega v. United Auto. Ins. Co., 847 So. 2d 994 (Fla. 3d DCA 2003)…ly correctable merely by showing what should anyway be presumed: that the person who treated him was licensed to do so) by failing to raise the issue timely and properly in the trial court. See Fla.R.Civ.P. 1.120(c); Sobel v. Jefferson Stores, Inc., 459 So. 2d 433 (Fla. 3d DCA 1984).…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979)
- Argenbright v. J. M. Fields Co., 196 So. 2d 190 (Fla. 3d DCA 1967)
- Holyoke Mut. Ins. Co. IN Salem v. Concrete Equip., Inc., 394 So. 2d 193 (Fla. 3d DCA 1981)
- Akins v. Taylor, 314 So. 2d 13 (Fla. 1st DCA 1975)
- Hillsborough Cnty. Tuberculosis & Health Assn. v. Fla. Tuberculosis & Health Ass'n, 201 So. 2d 895 (Fla. 1967)
- J. M. Fields of East Florida v. Argenbright, 201 So. 2d 895 (Fla. 1967)