E.H.P. CORPORATION, AS GENERAL PARTNER OF W.J.A. REALTY LIMITED PARTNERSHIP, D/B/A WORLD JAI-ALAI OF TAMPA, APPELLANT,
v.
CYNTHIA COUSIN AND ANTHONY COUSIN, HER HUSBAND, APPELLEES

Fla. 2d DCA | 1995-04-21
No. 94-02159
RYDER, A.C.J., and SCHOONOVER, J., concur.
654 So. 2d 976 Florida District Court of Appeal, Second District (1995) Positive Treatment
Cited by 10 cases

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Synopsis

E.H.P. Corporation, operating World Jai-Alai of Tampa, appeals a trial court order granting a new trial in a personal injury case. The appellate court reverses, holding that the trial court erred in finding that a special jury instruction for places of amusement was required and that including a third-party contractor on the verdict form was harmless error.


Holding

The trial court erred on both grounds. The special jury instruction was not warranted because the injury had nothing to do with Jai-Alai's mode of operation. Although Whatley should not have been included on the verdict form without proper notice and pleading, any error was harmless because the jury's finding that Jai-Alai was not negligent was dispositive.


Headnotes

[1] A higher standard of care for a place of amusement is not applicable when the injury is not causally related to the establishment's mode of operation.

[2] A defendant must affirmatively plead the negligence of a third party and raise the issue at pretrial to include the third party on the verdict form.

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Key Quotes

“the intrusion of rain water into the Jai-Alai Fronton clearly had nothing to do with Jai-Alai's mode of operation. The application of Wells to the instant case, thus, does not lie.”

The court's rationale for rejecting the special jury instruction for places of amusement, distinguishing the prior case law.

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Facts & Procedural History

Mrs. Cousin slipped and fell in a hallway of the Jai-Alai Fronton when her friend fell on accumulated rainwater and pulled her down. Jai-Alai had prev…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

The appellant, E.H.P. Corporation, as general partner of W.J.A. Realty Limited Partnership, d/b/a World Jai-Alai of Tampa (Jai-Alai), challenges a trial court order granting the appellees, Cynthia and Anthony Cousin, husband and wife (the Cousins), a new trial in this personal injury action. Jai-Alai contends the trial court erred in finding that it improperly failed to give a special jury instruction and that it improperly permitted a third party to be included on the verdict form. We agree with Jai-Alai that the trial court was in error, and we reverse.

The Cousins sued Jai-Alai for personal injuries resulting when Mrs. Cousin fell at the Jai-Alai Fronton. The fall occurred as Mrs. Cousin was walking down a hallway of the fronton with a friend of hers. The friend slipped on rain water that had accumulated on the floor and pulled Mrs. Cousin down to break the fall.

Prior to Mrs. Cousin’s fall, Jai-Alai had experienced roof leaks. Before the opening of the 1988 season, however, Jai-Alai contracted with Whatley Roofing and Sheet Metal, Inc. (Whatley), to re-roof the auditorium. That re-roofing had been completed by the time the Cousins visited the fronton.

After a trial of the ease, the jury returned a verdict in favor of Jai-Alai, specifically finding it had not been negligent. The trial court then granted the Cousins’ motion for a new trial on grounds that (1) the Cousins were entitled to a special jury instruction1, which would have held Jai-Alai, as a place of amusement, to a higher standard of care; and (2) Whatley, as a third party, was improperly included on the verdict form.

In arguing for the special jury instruction, the Cousins cite Wells v. Palm Beach Kennel Club, 160 Fla. 502, 35 So. 2d 720 (Fla.1948). In Wells, the plaintiff slipped and fell on a bottle in the aisle of a grandstand. The Wells court, in extending the normal premises liability rule for commercial establishments, found that: “the day that plaintiff was injured ... the crowd was large and ... many patrons were directed to sit in the exit aisles, drink from bottles and deposit the empty bottles anywhere they could find space.... ” Wells, 35 So. 2d at 721. Based on that finding, it was established that the injury in Wells was causally related to the amusement facility’s “mode of operation.” In the instant case, however, the intrusion of rain water into the Jai-Alai Fronton clearly had nothing to do with Jai-Alai’s mode of operation. The application of Wells to the instant case, thus, does not lie.

On the second point raised, Whatley’s name was added to the verdict form over the Cousins’ objection. This was allowed even though Jai-Alai failed to affirmatively plead the negligence of a third party or raise the matter at pretrial. The first notice the Cousins received of the inclusion of Whatley’s name on the verdict form was on the eve of trial. Although Whatley’s name should not have been placed on the verdict form, the jury never reached the issue of Whatley’s negligence, as the jury’s determination that Jai-Alai was not negligent was dispositive of the case. Therefore, any error in including Whatley’s name on the verdict form was harmless.

Accordingly, this cause is reversed and remanded with instructions to the trial court to reinstate the jury verdict and to conduct further proceedings consistent with this opinion.

RYDER, A.C.J., and SCHOONOVER, J., concur. . Places of amusement where large crowds congregate are required to keep their premises in a reasonably safe condition commensurate with the business conducted. If the owner falls amiss, and such failure is the proximate result of the injury to the one lawfully on the premises, compensatory damages may be recovered if the one injured is not at fault. One operating a place of amusement, like a race course, where others are invited is charged with a continuous duty to look after the safety of its patrons.


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Citator

Cited By

  • Nash v. Wells Fargo Guard Servs., Inc., 678 So. 2d 1262 (Fla. 1996)
    …, the Second District Court of Appeal has recently held that a nonparty’s name could not be placed on the verdict form if the named defendant has failed to plead the negligence of the nonparty or raise the matter at pretrial. E.H.P. Corp. v. Cousin, 654 So. 2d 976 (Fla. 2d DCA 1995). We agree and now hold that in order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty. The defend…
  • Justa Patricia Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011)
    …ry. See Carbo-nell, 675 So. 2d at 706 (noting that once a movant on summary judgment meets its burden of showing the absence of a material dispute of fact, non-moving party must “prove otherwise” through facts or inferences); E.H.P. Corp. v. Cousin, 654 So. 2d 976, 977 (Fla. 2d DCA 1995) (holding that, to be relevant to negligent operation, evidence must be shown to be both related to the mode of operation of the business and causally related to the plaintiffs injury); see also Owens, 802 So. 2d at 324 (expla…
  • Clark v. Polk Cnty., 753 So. 2d 138 (Fla. 2d DCA 2000)
    …. A defendant seeking to have the jury apportion its fault with that of a non-party has the burden to plead and prove its entitlement to that benefit. See Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla.1996); E.H.P. Corp. v. Cousin, 654 So. 2d 976 (Fla. 2d DCA 1995). The estate argues that Polk County failed to carry its burden, in part because the County did not establish the identity of the non-party tortfeasor. The County contends that it sufficed to show that some specific person had acte…

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