GLADYS COULTER, APPELLANT,
v.
AMERICAN BAKERIES COMPANY, A DELAWARE CORPORATION, APPELLEE
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In this products liability case, a consumer suffered injury after consuming a doughnut containing a metal wire manufactured by American Bakeries. The trial court allowed the defendant to assert a comparative negligence defense and instructed the jury accordingly, resulting in a 80% reduction of damages. The appellate court reversed, holding that comparative negligence was improper because the consumer's method of consumption was not abnormal or a misuse of the product.
The court reversed, holding that the trial court erred in submitting the comparative negligence issue to the jury because there was no evidence that the consumer could have reasonably expected to find a wire in the doughnut or that she used the product in an abnormal or unintended way.
[1] Comparative negligence is an affirmative defense in an implied warranty action.
[2] A trial court should not instruct the jury on comparative negligence if there is no evidence to support it.
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“It is settled that comparative negligence is a defense in an implied warranty action... However, it is equally settled that where there is no evidence tending to prove comparative negligence, the issue should not be submitted to the jury.”
Establishes the controlling legal principle that comparative negligence requires evidentiary support to be submitted to a jury.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCoulter purchased doughnuts manufactured by American Bakeries in their original sealed package. Due to an abscessed tooth and sore jaw, she consumed t…
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WIGGINTON, Judge.
This appeal is from a jury verdict and final judgment awarding damages in a products liability action which damages were reduced due to the jury’s finding of comparative negligence. The issue presented is whether the trial court erred in allowing the defendant/appellee to raise comparative negligence as a defense and by instructing the jury on comparative negligence. We reverse.
The uncontroverted evidence presented at trial revealed that appellant had purchased doughnuts manufactured by appel-lee and sealed in their original package. She opened the package in her automobile and in the course of driving to her destination consumed several pieces of one doughnut by breaking them off with her fingers and popping them into her mouth. Because of an abscessed tooth and sore jaw, instead of chewing the doughnut with her teeth appellant would sip milk through a straw allowing the doughnut to dissolve in her mouth. In fact, it was the dissolving nature of the doughnut which had prompted appellant to purchase that particular product. Shortly after she began consuming the doughnut, she felt something stick in her throat and immediately ceased ingestion. It was later discovered through x-rays the same day that appellant had consumed a piece containing a metal wire and causing her subsequent injury.
A complaint was filed alleging breach of implied warranty in that the doughnuts were unfit for human consumption. Appel-lee asserted the affirmative defense of comparative negligence, alleging that appellant was negligent in the manner in which she had consumed the doughnut by not “chewing” it. At trial, appellant objected to a proposed instruction on comparative negligence which objection was overruled.
The jury returned a verdict in favor of appellant awarding $12,500 in damages. However, based on the instruction on comparative negligence, the jury assessed negligence against appellant in the amount of 80 percent, thereby reducing her damages to $2,500.
It is settled that comparative negligence is a defense in an implied warranty action. West v. Caterpillar Tractor Company, Inc., 336 So. 2d 80 (Fla.1976); Coleman v. American Universal of Florida, Inc., 264 So. 2d 451 (Fla. 1st DCA 1972). However, it is equally settled that where there is no evidence tending to prove comparative negligence, the issue should not be submitted to the jury. Borenstein v. Ras-kin, 401 So. 2d 884 (Fla. 3d DCA 1981).
In a breach of an implied warranty action based on the presence of a harmful substance in food, the test of whether the presence of the harmful substance constitutes a breach of implied warranty is whether the consumer can reasonably expect to find the substance in the food as served. Zabner v. Howard Johnson’s, Incorporated, 201 So. 2d 824 (Fla. 4th DCA 1967). Moreover, when asserting the defense of comparative negligence in an implied warranty action, the issue pertains to the misuse of the product as opposed to the failure to discover or guard against a defect. Coleman v. American Universal of Florida, Inc., 264 So. 2d at 453-454.
Applying the foregoing to the instant case, there was simply no evidence that appellant could have expected to find a wire in the doughnut or that she used the doughnut in an abnormal, unintended, or unforeseen way. Indeed, appellant was essentially protecting herself — that is, her abscessed tooth — as best she could by choosing a doughnut that was soft and could easily dissolve with the milk. In that sense, by her use of the milk she was “chewing” the doughnut.
Consequently, there being no evidence tending to prove comparative negligence, the trial court erred in submitting the issue to the jury. The judgment in the instant case is reversed and the cause remanded for the trial court to enter judgment for the full amount of the damages awarded in favor of appellant. Borenstein v. Rankin.
SMITH, C.J., and WENTWORTH, J., concur.
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Jacobs v. Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000)…burden of proof to establish this defense, cited to no evidence that Jacobs could have gotten movers to recover his personal property any earlier than he did. In short, the defendants did not carry their burden. See Coulter v. American Bakeries Co., 530 So. 2d 1009 (Fla. 1st DCA 1988); see also Cuadros v. Carnival Cruise Lines, Inc., 604 So. 2d 861 (Fla. 3d DCA 1992). We cannot agree with defendants that the failure to direct a verdict on the key issues in this case was harmless. Regarding the issue of liabil…
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Woodard v. Armenian Cultural Ass'n OF Am., Inc., 724 So. 2d 669 (Fla. 4th DCA 1999)…no evidence tending to prove comparative negligence, the issue should not be submitted to the jury.’ ” Florida Ass’n of Workers for the Blind, Inc. v. Guillaume, 618 So. 2d 275, 276 [*672] (Fla. 3d DCA 1993)(quoting Coulter v. American Bakeries Co., 530 So. 2d 1009, 1010 (Fla. 1st DCA 1988)); see also Cuadros v. Carnival Cruise Lines, 604 So. 2d 861, 862 (Fla. 3d DCA 1992). The evidence adduced at trial in the instant case indicated that Woodard was standing with her back towards the gate when it fell. Given h…
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The Fla. Ass'n OF Workers FOR THE Blind, Inc. v. Margareth Guillaume, 618 So. 2d 275 (Fla. 3d DCA 1993)…mes a question of law and should not have been submitted to the jury. It is well-settled law that “where there is no evidence tending to prove comparative negligence, the issue should not be submitted to the jury.” Coulter v. American Bakeries Co., 530 So. 2d 1009, 1010 (Fla. 1st DCA 1988); Cuadros v. Carnival Cruise Lines, 604 So. 2d 861, 862 (Fla. 3d DCA 1992); Borenstein v. Raskin, 401 So. 2d 884 (Fla. 3d DCA 1981). In this case, there was no evidence that Plaintiff was negligent. Thus, it was error to sub…
Authorities Cited
- West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976)
- Borenstein v. Raskin, 401 So. 2d 884 (Fla. 3d DCA 1981)
- Zabner v. Johnson's, 201 So. 2d 824 (Fla. 4th DCA 1967)
- Coleman v. Am. Universal OF Fla., Inc., 264 So. 2d 451 (Fla. 1st DCA 1972)