WILLIAM KINNEBREW, AND SANDRA KINNEBREW, HIS WIFE, APPELLANTS,
v.
KMART CORPORATION, A FOREIGN CORPORATION, APPELLEE
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The appellate court affirmed the jury verdict, finding no reversible error in the trial court's rulings on comparative negligence, assumption of risk, admission of evidence, mistrial, or verdict form.
Plaintiffs appealed a jury verdict for defendant KMart Corporation. The appeal raised issues concerning comparative negligence, assumption of risk jur…
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PER CURIAM.
William and Sandra Kinnebrew, plaintiffs below, appeal a jury verdict in favor of defendant KMart Corporation. We affirm.
Because there was a defense verdict, we think that the claims of error with respect to the issue of comparative negligence are moot. See Bryant v. Fiadini, 405 So. 2d 1341, 1343 (Fla. 3d DCA 1981). In any event, it is our view that the motion for directed verdict on the issue of comparative negligence was properly denied.
We agree with plaintiff that the assumption of risk standard jury instruction, see Fla. Std. Jury Instr. (Civ.) 3.8, should not have been included within the body of the comparative negligence instruction. The doctrine of implied assumption of the risk is now subsumed within comparative negligence, see Bladeburn v. Dorta, 348 So. 2d 287, 289 (Fla.1977), and only the comparative negligence instruction should have been used. Nonetheless, assumption of risk was not presented to the jury as a complete defense, but only as falling under the heading of comparative negligence, and the instruction was therefore not misleading.
Finally, we find no abuse of discretion in the trial court’s ruling regarding the admission of medical records into evidence, the denial of plaintiffs’ motion for mistrial, and the alteration of the jury verdict form.
Affirmed.
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Fittipaldi USA, Inc. v. Helio Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005)…he trial court should have granted its motion for directed verdict because Castroneves failed to show proof of damages. In the instant case, the issue is moot as the jury resolved Castroneves’ counterclaims in FUSA’s favor. Kinnebrew v. KMart Corp., 755 So. 2d 187 (Fla. 3d DCA 2000); see Maksad v. Kaskel, 832 So. 2d 788 (Fla. 4th DCA 2002). Accordingly, we affirm. FLETCHER, J., concurs. . It is entirely possible that even a treating physician's testimony could cross the line into expert testimony.…
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Ali Maksad and Ann Knowles Maksad v. Stewart M. Kaskel, M.D., 832 So. 2d 788 (Fla. 4th DCA 2002)…ve negligence. However, since the jury did not find any of the defendants negligent, it never reached the comparative negligence issue. Thus, any error in denying appellant’s motion was harmless, and this issue is moot. See Kinnebrew v. KMart Corp., 755 So. 2d 187, 188 (Fla. 3d DC A 2000). Even if we addressed the merits, we would still affirm because of the testimony that appellant’s own actions in delaying his presentation to the hospital caused damage to his leg. The jury’s verdict also moots appellant’s…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977)
- Bryant v. Fiadini, 405 So. 2d 1341 (Fla. 3d DCA 1981)