JOE WALKER, APPELLANT,
v.
SPARKLING POOLS, INC., A FLORIDA CORPORATION, AND SAMUEL SPIEGEL, APPELLEES
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Walker appealed a jury verdict in favor of defendant in a negligence action, challenging jury instructions on contributory and concurrent negligence, the admission of a mechanical jack not in evidence, and exclusion of a hearsay statement. The court reversed and remanded for new trial, finding the negligence instructions misleading because they failed to clearly require that negligence proximately contribute to the injury.
The court held that the jury instructions on contributory and concurrent negligence were misleading and erroneous because they failed to clearly indicate that the alleged negligence must have proximately contributed to the injury. The court reversed and remanded for a new trial based on the instructional error.
“only where the negligence of a plaintiff proximately contributes to his own injury will such negligence preclude a recovery”
Establishes the Florida legal standard that contributory negligence must proximately contribute to injury, not merely contribute in a lay sense
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Join FLexlaw to unlock all legal intelligencePlaintiff Walker brought a negligence action against Sparkling Pools, Inc. and Samuel Spiegel. A jury verdict was entered in favor of the defendants. …
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Plaintiff herein appeals a final judgment in a negligence action entered upon a jury verdict in favor of the defendant and seeks review of an order denying his motion for new trial.
Plaintiff has assigned as error instructions given by the court on contributory negligence1 and on concurrent negligence,2 the court’s permitting the jury to take into the jury room a mechanical jack which had never been introduced into evidence, and the court’s excluding from evidence plaintiff’s proposed statement alleged by plaintiff to be competent under the res gestae exception to the hearsay rule. We conclude that plaintiff’s contentions regarding the instructions and the use by the jury of the mechanical jack have merit and accordingly reverse and remand for new trial.
Since contributory negligence and concurrent negligence were important triable issues, it became incumbent upon the *206court to correctly charge the jury on the applicable law. It is well established law in Florida that only where the negligence of a plaintiff proximately contributes to his own injury will such negligence preclude a recovery. Nelson v. Ziegler, Fla. 1956, 89 So.2d 780. We deem it unnecessary to reiterate the legal distinctions between “cause” in the lay sense and “proximate cause” in the legal sense. Suffice it to say that when instructing a jury on contributory and/or concurrent negligence the court should avoid using misleading language. The instructions previously referred to are, in our view, misleading and erroneous as they do not with sufficient clarity indicate that the alleged contributory negligence or concurrent negligence must have proximately contributed to the injury.
In view of the foregoing, we deem it unnecessary to consider the appellant’s other contentions.
Reversed and remanded.
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Sayih v. Irwin Perlmutter, M.D., 561 So. 2d 309 (Fla. 3d DCA 1990)…2d 38 (Fla. 3d DCA 1978). It is generally reversible error to deliver to the jury room any materials which have not been admitted into evidence where the materials are of such character as to influence the jury. See Walker v. Sparkling Pools, Inc., 171 So. 2d 205 (Fla. 3d DCA 1965) (jury should not have been permitted to take into jury room, in negligence case, a mechanical jack which had never been introduced into evidence); Crawford v. Brown, 321 Ill. 305, 151 N.E. 911 (1926) (error to allow jury to take w…
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Morrison v. Hansen, 213 So. 2d 305 (Fla. 1st DCA 1968)…aintiff, the driver of the motorcycle, “directly and proximately contributed or brought about the plaintiff’s injuries.” The Third District Court of Appeal of Florida, has correctly stated the law in its decision in Walker v. Sparkling Pools, Inc., 171 So. 2d 205, wherein the court said: “ * * * It is well established law in Florida that only where the negligence of a plaintiff proximately contributes to his own injury will such negligence preclude a recovery * * * ” (Emphasis added.) So we see that the me…
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Staehle v. Libretto, 193 So. 2d 52 (Fla. 3d DCA 1966)…substance of the charge on contributory negligence is that recovery is precluded only when the negligent acts on the part of the plaintiff form a direct and proximate causal relation to the injury. See Walker v. Sparkling Pools, Inc., Fla.App. 1965, 171 So. 2d 205; Richardson v. Sams, Fla.App.1964, 166 So. 2d 468. The trial court in its charge properly defined proximate cause and negligence. It appears from review of the entire charge that the jury was not misled as to the effect of the law. Accordingly, th…
Authorities Cited
- Nelson v. Ziegler, 89 So. 2d 780 (Fla. 1956)