LEE PERRY, ET AL., APPELLANTS,
v.
RED WING SHOE COMPANY, ETC., ET AL., APPELLEES

Fla. 3d DCA | 1992-02-11
No. 90-1710
Before NESBITT, FERGUSON and LEVY, JJ.
597 So. 2d 821 Florida District Court of Appeal, Third District (1992) Positive Treatment
Cited by 25 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Lee Perry purchased Red Wing steel-toe boots intending to protect his toes from heavy objects, but after a 3,000-pound weight crushed his small toes in 1987, he sued on strict liability and negligence grounds. The jury found no defect in strict liability but allocated 47% negligence to Red Wing and 53% to Perry. The trial judge improperly directed a verdict for Red Wing after the jury verdict, which the appellate court reversed.


Holding

The trial judge erred in directing a verdict for Red Wing after the jury verdict because the plaintiff presented sufficient evidence of negligence through expert testimony that alternative technology existed to protect all toes, not just the big toe, and the jury was entitled to weigh and evaluate this evidence rather than having it withdrawn by the judge.


Headnotes

[1] A directed verdict should be granted only if there is no evidence or reasonable inferences to support the opposing position.

[2] It is ordinarily the function of the jury to weigh and evaluate evidence, particularly in negligence cases.

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Key Quotes

“Motions for directed verdict "should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. The trial judge is authorized to grant such motion only if there is no evidence or reasonable inferences to support the opposing position."”

Establishes the high standard for granting directed verdicts and the court's cautionary approach

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Facts & Procedural History

Lee Perry purchased Red Wing work boots with steel toes on January 31, 1987, relying on a hang tag indicating the steel toe would withstand heavy fall…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this personal injury action, appellants Lee and Bertha Perry, plaintiffs below, seek reversal of a judgment for appellee, Red Wing Shoe Company (Red Wing).

The question before us is whether the trial judge properly directed a verdict for Red Wing after the jury had returned a verdict in the Perrys’ favor. On January 31, 1987, Lee Perry purchased a pair of work boots manufactured by Red Wing. Because his job involved working with heavy equipment, Mr. Perry claimed that he had wanted a pair of boots that would protect his toes in the event something heavy fell on his feet. He purchased Red Wing’s boots because a steel toe was incorporated in the boots, and there was a hang tag attached to the boots which led him to believe the steel toe would cause the boots to withstand the pressure of heavy falling objects.

On May 22, 1987, while Perry was at a scrap metal junk yard, a 3,000 pound weight fell on his foot, crushing his four small toes, and resulting in their eventual amputation. Perry sued Red Wing on strict liability and negligence theories.

After hearing all the testimony, the jury returned a verdict in Red Wing’s favor on the strict liability count, specifically finding that there was no defect in the boot. On the negligence count, the jury allocated 53% of the responsibility for the negligence to Mr. Perry and 47% to Red Wing. After the verdict was returned, Red Wing renewed its earlier motion for directed verdict. Immediately thereafter, the trial judge granted Red Wing’s motion.

Motions for directed verdict “should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. The trial judge is authorized to grant such motion only if there is no evidence or reasonable inferences to support the opposing position.” Stirling v. Sapp, 229 So. 2d 850, 852 (Fla.1969) (citing Hendricks v. Dailey, 208 So. 2d 101, 103, cert. denied, 219 So. 2d 702 (Fla.1968)).

Furthermore, it is ordinarily the function of the jury to weigh and evaluate the evidence, particularly in negligence cases where reasonable people often draw different conclusions from the same evidence. Unless the evidence as a whole with all reasonable deductions to be drawn therefrom points to only one possible conclusion, the trial judge is not warranted in withdrawing the case from the jury and substituting her own evaluation of the weight of the evidence. Nelson v. Ziegler, 89 So. 2d 780, 782 (Fla.1956). See also McCabe v. Watson, 225 So. 2d 346, 347 (Fla.1969), cert. dismissed, 232 So. 2d 739 (Fla.1970); Dean Witter Reynolds, Inc. v. Hammock, 489 So. 2d 761, 764-65 (Fla. 1st DCA 1986).

At trial, plaintiffs’ expert testified on direct examination that the steel toe in Red Wing’s boots protected only the big toe and that therefore the boots were inadequate because the small toes were susceptible to injury. Although he was vigorously cross examined regarding the adequacy of the boots’ design he maintained that alternative technology existed whereby all toes could have been protected. Thus, the jury was presented with sufficient evidence to determine what actions were negligent and by whom. It was, therefore, error for the trial judge to “sit as a seventh juror” and set aside the jury’s verdict. Laskey v. Smith, 239 So. 2d 13, 14 (Fla.1970).

Accordingly, we reverse the judgment under appeal and reinstate the jury’s verdict.

Other

Appellee seeks rehearing of this court’s February 11, 1992 opinion in the above-styled case. That opinion reversed the trial court’s directed verdict and judgment in appellee’s favor. While the motion for rehearing is denied, we write to explain our reasons for doing so.

Appellee claims that this court’s order reinstating the jury’s verdict in appellants’ favor on their claim of negligent design is foreclosed by the jury’s determination that appellee did not place steel-toe safety boots on the market with a defect which was the legal cause of appellant’s damages. Thus, claims appellee, the verdict finding it negligent is inconsistent with the verdict finding no strict liability. To support its claim, appellee relies on North American Catamaran Racing Ass’n v. McCollister, 480 So. 2d 669, 671 (Fla. 5th DCA 1985), review denied, 492 So. 2d 1333 (Fla.1986), and Ashby Division of Consolidated Aluminum Corp. v. Dobkin, 458 So. 2d 335, 337 (Fla. 3d DCA 1984). Although these cases sup port appellee’s claim in result, the evidence presented in the instant case, as outlined in our original opinion, supports a different conclusion.

Both North American Catamaran and Ashby are cases where the appellate courts found that the juries had reached inconsistent verdicts. In North American Catamaran, a sailboat manufacturer was sued for a death resulting from a capsized boat. While the jury found no defect in the boat’s design, it found defendant negligent. 480 So. 2d at 671. In Ashby, plaintiffs brought suit against a ladder manufacturer - claiming defective design and inadequate warnings. At trial, the jury rejected plaintiffs’ strict liability claim, but found the manufacturer negligent. 458 So. 2d at 337. In each case, the appellate courts noted that absent proof of defect, no grounds remained upon which to affirm the trial courts’ orders finding the defendants negligent.

The North American Catamaran and Ashby cases differ from the case at bar, however, because both appellate courts in those cases specifically noted that no evidence remained to sustain the verdicts when the juries found no design defects. Here, our decision is based upon evidence adduced at trial upon which a jury could reasonably have determined that appellee failed to warn or instruct prospective purchasers about the product, and that this failure to warn was the proximate cause of appellants’ injuries. Thus, the jury’s finding of negligence in this case is not foreclosed by its rejection of the claim of strict liability.

Accordingly, we deny appellee’s motion for rehearing.


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Citator

Cited By (13 total)

  • Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010)
    …d for a trial on the merits by reasoning that [m]otions for directed verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Perry v. Red Wing Shoe Co., 597 So. 2d 821, 822 (Fla. 3d DCA 1992). The trial judge is authorized to grant such a motion only if there is no evidence or reasonable inferences to [*1091] support the opposing position. 7A[;] see also Sal[a]m v. Benmelech, 590 So. 2d 1008 (Fla. 3d DCA 1991). Th…
    1 / 2
  • Houghton v. Bond, 680 So. 2d 514 (Fla. 1st DCA 1996)
    …a motion for directed verdict, such a motion should be considered by a trial court with extreme caution, because the granting thereof amounts to a holding that the non-moving party’s case is devoid of probative evidence. Perry v. Red Wing Shoe Co., 597 So. 2d 821 (Fla. 3d DCA 1992). A motion for directed verdict should not be granted unless the trial court, after viewing the evidence in the light most favorable to the non-moving party, determines that no reasonable jury could render a verdict for the non-mov…
  • Edwards v. Orkin Exterminating Co., Inc., 718 So. 2d 881 (Fla. 3d DCA 1998)
    …ce and credibility determinations. Thus, despite the judge’s disagreement with the jury’s verdict, “the trial judge does not sit as a seventh juror with veto power.” Laskey v. Smith, 239 So. 2d 13, 14 (Fla.1970); see also Perry v. Red Wing Shoe Co., 597 So. 2d 821, 822 (Fla. 3d DCA 1992). The power to direct a verdict should be cautiously exercised, and a motion for a directed verdict should never be granted unless the evidence is such that under no view which the jury might lawfully take of the evidence fav…

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