ZULA DUKES, AND BONDED RENTAL AGENCY, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
DONNA PINDER, A MINOR, BY AND THROUGH HER GUARDIAN GEORGENA D. FORD, APPELLEE
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An eight-year-old child was injured on an attractive nuisance created by abandoned building materials, including a door with glass panes, left unattended behind an apartment building. The trial court instructed the jury only on the attractive nuisance theory and refused to instruct on general negligence principles, resulting in a judgment for the plaintiff. The appellants challenged both the sufficiency of evidence for attractive nuisance and the trial court's jury instructions.
The appellate court held that the attractive nuisance issue was properly submitted to the jury and there was sufficient evidence for the jury to find that the appellants maintained an attractive nuisance. The court also held that the trial court did not err in refusing to instruct on general negligence principles because such principles are inapplicable when the sole basis of liability is maintenance of an attractive nuisance.
“the issue of attractive nuisance was properly submitted to the jury and that there was sufficient evidence for the jury to find chat the appellants maintained an attractive nuisance”
Establishes that the appellate court found the evidence adequate to support jury consideration of the attractive nuisance claim.
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Join FLexlaw to unlock all legal intelligenceDonna Pinder, age eight, was injured while playing with other children on a playhouse constructed from abandoned building materials retrieved from a b…
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Eight year old Donna Pinder was injured while she was playing with other children on a playhouse constructed by the children from abandoned building materials, which included a door containing panes of glass. The building in which Donna was living was being repaired and the materials had been taken out of it and stacked against the rear of the building near a trash pile. Suit was brought against the apartment house owner and the apartment house operator, the appellants, upon the theory that they had maintained an attractive nuisance. The trial court instructed the jury as to attractive nuisance but not as to simple negligence. The jury found for the plaintiff-appellee; the court entered final judgment in her favor, and this appeal followed. We affirm.
Appellants contend that (1) the evidence did not establish the existence of an attractive nuisance, and (2) the court erred in refusing to instruct the jury on general principles of negligence law. We hold that the issue of attractive nuisance was properly submitted to the jury and that there was sufficient evidence for the jury to find chat the appellants maintained an attractive nuisance. Cf. Larnel Builders, Inc. v. Martin, Fla.1959, 110 So.2d 649; Larnel Builders Inc. v. Martin, Fla.App.1958, 105 So.2d 580; 7-Eleven, Inc. v. Mercier, Fla.App.1966, 184 So.2d 523; Ridgewood Groves, Inc. v. Dowell, Fla.App.1966, 189 So.2d 188.
The court did not err in refusing to instruct on general principles of negligence law, such as duty, breach of duty, proximate cause, and contributory negligence because these principles are not applicable where the sole basis of the claimed liability of the defendant is that the defendant maintained an attractive nuisance. See Larnel Builders, Inc. v. Martin, Fla.1959, 110 So.2d 649.
Appellant also urges that the trial judge should have declared a mistrial when the jury, after having retired to consider their verdict, asked a question which revealed that they were concerned with an element of damages not properly allowable. The trial judge clearly and forcefully instructed the jury to disregard this element of damages. It was not error for him in the exercise of his broad discretion to refuse to grant a mistrial. Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174, 176 (1947); Alicot v. Dade County, Fla.App.1961, 132 So.2d 302.
Affirmed.
CHARLES CARROLL, C. J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sharp v. Lewis, 367 So. 2d 714 (Fla. 3d DCA 1979)…of the claim of error for the denial of the motion for a mistrial and find that in each instance, no reversible error is shown under the rule stated in American Express Company v. Juhasz, 281 So. 2d 244 (Fla. 3d DCA 1973). See also Dukes v. Pinder, 211 So. 2d 575 (Fla. 3d DCA 1968). The errors complained of as a basis for a new trial do not present reversible error because the questioned remarks were either a result of invited error, see Compania Dominicana de Aviacion v. Caribbean Mercantile Export Corpora…
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Martinello v. B & P USA, Inc., 566 So. 2d 761 (Fla. 1990)…nvitee and that it had breached that duty. Consequently, the court held that the jury properly considered comparative negligence. In its decision, the court acknowledged conflict with the Third District Court of Appeal’s decision in Dukes v. Pinder, 211 So. 2d 575 (Fla. 3d DCA), cert. denied, 219 So. 2d 700 (Fla.1968). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. We quash the district court’s decision, finding that the plaintiff was entitled to choose which theory should…1 / 2
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Martinello v. B & P USA, Inc., 545 So. 2d 956 (Fla. 4th DCA 1989)…e not applicable to an invitee. Where, as here, the doctrine of attractive nuisance is inapplicable, princi-pies of ordinary negligence, including comparative negligence apply. Cf. Green Springs, Inc. v. Calvera. To the extent that Dukes v. Pinder, 211 So. 2d 575 (Fla. 3d DCA), cert. denied, 219 So. 2d 700 (Fla.1968) may indicate otherwise, we acknowledge conflict. We note that the jury, here, was instructed under Florida Standard Jury Instructions 4.4, on the standard of negligence applicable to a child.1…1 / 2
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
- Erle L. Wirt v. Fraser, 158 Fla. 777 (Fla. 1947)
- Larnel Builders, Inc. v. Martin, 105 So. 2d 580 (Fla. 3d DCA 1958)
- Larnel Builders, Inc. v. Martin, 110 So. 2d 649 (Fla. 1959)
- Ridgewood Groves, Inc. v. Dowell, 189 So. 2d 188 (Fla. 2d DCA 1966)
- Alicot v. Dade Cnty., 132 So. 2d 302 (Fla. 3d DCA 1961)
- 7-Eleven, Inc. v. Mercier, 184 So. 2d 523 (Fla. 4th DCA 1966)