GEORGE W. PAPE, APPELLANT,
v.
ROBERT T. DEPEW AND MAIN INSURANCE COMPANY, APPELLEES
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Appellant Pape sought reversal of a negligence judgment in favor of the operator of an amusement ride (the "Giant Slide"), arguing the trial court erred in denying a jury instruction on res ipsa loquitur. The court affirmed the judgment, holding that res ipsa loquitur was inapplicable because the evidence affirmatively demonstrated the plaintiff's contributory negligence rather than merely conflicting testimony.
The court held that the trial court did not err because a third condition necessary for res ipsa loquitur—that the injury was not the result of any voluntary action or contribution by the plaintiff—was not satisfied. The evidence affirmatively demonstrated Pape's contributory negligence, which precluded application of the doctrine.
[1] The doctrine of res ipsa loquitur requires proof that the injury was not the result of any voluntary action or contribution on the part of the plaintiff.
[2] A plaintiff's contributory negligence can preclude the application of the doctrine of res ipsa loquitur.
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Join FLexlaw to unlock all legal intelligence“there is a third condition necessary to be shown before a plaintiff may rely upon the doctrine of res ipsa loquitur and that condition is that the injury was not the result of any voluntary action or contribution on the part of the plaintiff”
Establishes the three-part test for res ipsa loquitur, specifically the requirement that the plaintiff lack contributory fault
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Join FLexlaw to unlock all legal intelligencePape was injured while riding the "Giant Slide" amusement device owned and operated by DePew. A negligence action was brought and the jury returned a …
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Appellant was injured while a patron of an amusement device known as the “Giant Slide” which was owned and operated by appellee DePew. A negligence action was brought by appellant, the jury returned a verdict in favor of appellees and final judgment was entered in behalf of appellee DePew and his insurance carrier.
Appellant now seeks reversal of said judgment. It is contended that the trial court erred in denying appellant’s request to instruct the jury on the doctrine of res ipsa loquitur because appellant was injured while riding a device exclusively controlled and maintained by appellee and the occurrence was such that, in the ordinary course of events, would not have happened had the appellee used due care. However, there is a third condition necessary to be shown before a plaintiff may rely upon the doctrine of res ipsa loquitur and that condition is that the injury was not the result of any voluntary action or contribution on the part of the plaintiff. Here, the record demonstrates ample evidence of contributory negligence on the part of appellant in his use of the slide. Nevertheless, appellant points to the case of Holman v. Ford Motor Company, 239 So.2d 40 (Fla.App. 1st, 1970), in support of his position that a conflict with the testimony which establishes the basis for res ipsa would not render the doctrine inapplicable.
Appellant’s reasoning in this regard is faulty for the reason that there was not in this case a mere conflict in the testimony regarding the element of contribution on appellant’s part. Rather, there was a complete failure of the evidence to show lack of fault on appellant’s behalf which would bring the doctrine of res ipsa loquitur into play. On the contrary, there was sufficient evidence to show that the appellant had been drinking, that he disregarded certain warning signs on the premises and that he disregarded the specific instructions given by an employee. Hence, appellant did not demonstrate the requisite lack of fault necessary to warrant an instruction on res ipsa loquitur.
We have considered appellant’s remaining points on appeal and deem them to be without merit.
Appellant having failed to demonstrate reversible error in the proceedings below, the judgment appealed herein is affirmed.
RAWLS, C. J., and SPECTOR and JOHNSON, JJ., concur.
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Otis Elevator Co. v. Lelia Chambliss and Avon Chambliss, 511 So. 2d 412 (Fla. 1st DCA 1987)…part of the plaintiff. Stanek v. Houston, 165 So. 2d 825 (Fla. 2nd DCA 1964); Holman v. Ford Motor [*415-419] Company, 239 So. 2d 40 (Fla. 1st DCA 1970); Waite v. Jackson’s Byrons Enterprises, Inc., 254 So. 2d 28 (Fla. 3rd DCA 1971); Pape v. DePew, 281 So. 2d 224 (Fla. 1st DCA 1973); Brooks v. Plant, 296 So. 2d 71 (Fla. 2nd DCA 1974); Cortez Roofing, Inc. v. Barolo, 323 So. 2d 45 (Fla. 2nd DCA 1975); Commercial Union Insurance Co. v. Street, 327 So. 2d 113 (Fla. 2nd DCA 1976); Auto Specialties Manufacturing…
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Brooks v. Plant, 296 So. 2d 71 (Fla. 2d DCA 1974)…. Houston, Fla.App.2d 1964, 165 So. 2d 825. See, ALI, Restatement of the Law of Torts, 2d § 328 D (1964); Prosser, The Law of Torts, 199 (2d Ed. 1955). . See, Schott v. Pancoast Properties, Fla. 1952, 57 So. 2d 431; Pape v. DePew, Fla.App.1st 1973, 281 So. 2d 224; Martin v. Powell, Fla.App.2d 1958, 101 So. 2d 610; Wagner v. Associated Shower Co., Fla.App.3d 1957, 99 So. 2d 619; See, also, Prosser, supra, at 208-09; Restatement, supra, § 328 D, Comments F-I; Harper and James, The Law of Torts, § 19.8 (1956).…1 / 2
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Beach v. Halifax Hosp. Dist., 360 So. 2d 114 (Fla. 1st DCA 1978)…ion; (2) the injury was not the result of any voluntary action or contribution on the part of the plaintiff; and (3) the accident would not have occurred had the defendant used due care.” Such elements have been stated identically in Pape v. DePew, 281 So. 2d 224, 225 (Fla. 1st DCA 1973) and Stanek v. Houston, 165 So. 2d 825, 927 (Fla. 2nd DCA 1964). It is apparent from the record in this case that there was testimony from which the jury could properly find negligence on the part of plaintiff and that such…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Holman v. Ford Motor Co., 239 So. 2d 40 (Fla. 1st DCA 1970)