WILNER BELIZAIRE, APPELLANT,
v.
ROBERT W. LYDIC D/B/A TIDEWATER MACHINERY COMPANY, APPELLEE
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PER CURIAM.
Affirmed. McCormick Machinery v. Julian E. Johnson & Sons, Inc., 523 So. 2d 651 (Fla. 1st DCA 1988); Ryan v. Atlantic Fertilizer & Chemical Company, 515 So. 2d 324 (Fla. 3d DCA 1987); Willage v. Law Offices of Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982); Keith v. Russel T. Bundy & Associates, Inc., 495 So. 2d 1223 (Fla. 5th DCA 1986); Fletcher Co. v. Melroe Manufacturing Co., 238 So. 2d 142 (Fla. 1st DCA 1970); Royal v. Black & Decker Manufacturing Co., 205 So. 2d 307 (Fla. 3d DCA 1968), cert. denied, 211 So. 2d 214 (Fla.1968); Wisner v. Goodyear Tire & Rubber Co., 167 So. 2d 254 (Fla. 2d DCA 1964). Section 672.316(3)(b), Florida Statutes (1989).
HUBBART, Judge
(dissenting).
I would reverse the summary judgment for the defendant retailer in this products liability action and remand for further proceedings. In my view, a triable issue is presented on this record as to whether the defendant retailer was guilty of negligence in selling a used rubber heating machine which lacked a highly sensitive knee safety device to instantly stop the machine in case of an emergency — which alleged defect caused foreseeable injuries to the plaintiff, a workman, whose hand was tragically crushed in the machine while operating it. Although the machine did have an overhead hand-operated safety device, it was not conveniently located or accessible to a workman whose hand or hands might become caught in the machine while operating it in a sitting position — as opposed to the knee-operated safety device which a seated workman, as here, could easily touch in case of an emergency and shut .off the machine. Indeed, the machine in this case was, in fact, originally manufactured with a knee-safety device on it. The defendant retailer was in the business of selling such machines and should have known that a machine without such a safety device was unsafe. Accordingly, a summary judgment for the defendant retailer was singularly inappropriate. See Carter v. Hector Supply Co., 128 So. 2d 390, 392 (Fla.1961); Marrillia v. Lyn Craft Boat Co., 271 So. 2d 204, 206 (Fla. 2d DCA 1973); see also Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla.1977).
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Payne v. State, 624 So. 2d 815 (Fla. 4th DCA 1993)…. Under the unique facts of this case, we agree. When a court determines prior to imposing sentence, that it cannot impose sentence in accord with the plea agreement, it must give the defendant an opportunity to withdraw his plea. Collier v. State, 590 So. 2d 456, 457 (Fla. 1st DCA 1991). Thus, in those cases where a defendant requests a furlough it must be determined whether such furlough is part of the plea agreement. Where a furlough and enhanced sentence for failure to appear are part of the negotiated p…
Authorities Cited (12 total)
- Wills v. Sears, 351 So. 2d 29 (Fla. 1977)
- Carter v. Hector Supply Co., 128 So. 2d 390 (Fla. 1961)
- Lona Mae Royal v. The Black & Decker Mfg. Co., 205 So. 2d 307 (Fla. 3d DCA 1967)
- Willage v. The LAW Offs. OF Wallace & Breslow, P.A., 415 So. 2d 767 (Fla. 3d DCA 1982)
- Theda Keith v. Russell T. Bundy & Assocs., Inc., 495 So. 2d 1223 (Fla. 5th DCA 1986)
- Fletcher Co. v. Melroe Mfg. Co., 238 So. 2d 142 (Fla. 1st DCA 1970)
- Carl v. Wisner, Jr., 167 So. 2d 254 (Fla. 2d DCA 1964)
- Ryan v. Atl. Fertilizer & Chem. Co., 515 So. 2d 324 (Fla. 3d DCA 1987)
- McCORMICK Mach., Inc. v. Julian E. Johnson & Sons, Inc., 523 So. 2d 651 (Fla. 1st DCA 1988)
- In re Est. of J. D. Miller, 211 So. 2d 214 (Fla. 1968)