TITUSVILLE ENTERPRISES, INC., A FLORIDA CORPORATION, D/B/A FLORIDA WONDERLAND, APPELLANT,
v.
JACK H. NEWKIRK, APPELLEE
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.
The Florida District Court of Appeal affirmed a jury verdict awarding damages for personal injuries. The court found sufficient evidence to allow the jury to consider the defendant's negligence in failing to provide adequate warnings, despite this specific claim not being explicitly in the initial complaint.
Yes, there was sufficient evidence and proper inferences to withstand a motion for a directed verdict. A jury question was created regarding the sufficiency of the defendant's warnings, even though failure to warn was not explicitly pleaded.
“The record convinces us that there was sufficient evidence and proper inferences to withstand the thrust of a motion for a directed verdict.”
Establishes that the evidence was sufficient to prevent a directed verdict for the defendant.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe plaintiff, a paying customer at the defendant's amusement park, sustained personal injuries. The plaintiff sued for negligence, and the jury retur…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Assumption Of Risk cases and more on FLexlaw
The defendant-appellant appeals from a final judgment entered pursuant to a jury verdict in favor of the plaintiff-appellee for personal injuries sustained while the plaintiff was a paying customer at the defendant’s amusement facilities.
The appellant’s principal contention is that the trial court should have directed a verdict in its favor as the evidence was insufficient upon which a jury could find the defendant guilty of negligence and that the plaintiff was, as a matter of law, con-tributorily negligent and had assumed the risk.
The record convinces us that there was sufficient evidence and proper inferences to withstand the thrust of a motion for a directed verdict. We have previously set forth the rules governing directed verdicts in Macrellis v. George, Fla.App. 1967, 202 So.2d 107; Ramsey v. Ivey, Fla.App.1966, 184 So.2d 499.
Regarding the issue of the defendant’s negligence, we believe that a jury *17question was created by the evidence on the issue of the sufficiency of the defendant’s warning. While failure to warn was not specifically charged in plaintiff’s complaint as an act of negligence on defendant’s part, the issue was tried by the implied if not express consent of the parties and, therefore, presented a basis for liability, F.R.C.P. 1.190(b) (formerly Rule 1.15(b)), 30 F.S.A.
The remaining points raised on appeal have been considered and determined to be without merit.
Affirmed.
CROSS and REED, JJ., and HEWITT, ROBERT S., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Pike v. Nat'l Fid. Life Ins. Co., 377 So. 2d 973 (Fla. 3d DCA 1979)…and are therefore properly “treated in all respects as if they had been raised in the pleadings.” Fla.R.Civ.P. 1.190(b); Vanguard Construction Co., Inc. v. Lewis State Bank, 348 So. 2d 72 (Fla. 1st DCA 1977); Titusville Enterprises, Inc. v. Newkirk, 205 So. 2d 16 (Fla. 4th DCA 1967). Even assuming arguendo that a formal amendment to the pleadings was appropriate, there was no basis, in view of the manifest lack of prejudice to the defendant, for the trial court’s failure to grant the plaintiff’s motion to do…
-
Strickland v. ST. Petersburg Auto Auction, Inc., 243 So. 2d 603 (Fla. 4th DCA 1971)…the parties, even though such amendments might change the legal theory on which relief is sought. See 25 Fla.Jur., Pleadings § 110 (1959); 3 Moore’s Federal Practice 2d, § 15.13 [1 and 2] 1968; Titusville Enterprises, Inc. v. Newkirk, Fla.App.1967, 205 So. 2d 16; Atlantic Coast Line Railroad Company v. Bracewell, Fla.App.1959, 110 So. 2d 482, and Hart Properties, Inc. v. Slack, Fla.App.1962, 145 So. 2d 285 (reversed on different grounds, Fla.1963, 159 So. 2d 236). There is a line of cases which held that am…
-
Kaplan v. Lennecker, 293 So. 2d 738 (Fla. 3d DCA 1974)…on motion of any party or at any time, even after judgment, if the issue involved was covered by the evidence at trial, and the evidence thereon was sufficient to support the jury’s verdict. See Titusville Enterprises, Inc. v. Newkirk, Fla.App.1967, 205 So. 2d 16. On the evidence presented the above rule was applicable, and the amendment and jury charge relating to the duty of the owner of the premises to the invitee were proper. Todkan and Kaplan cross-claimed against Grossman’s insurer, Phoenix, contendin…
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
- Ramsey v. Ivey, 184 So. 2d 499 (Fla. 4th DCA 1966)
- MacRellis v. George, 202 So. 2d 107 (Fla. 4th DCA 1967)