MARY J. HARSHBARGER, APPELLANT,
v.
MIAMI HERALD PUBLISHING CO., A FLORIDA CORPORATION, ET AL., APPELLEES
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Mary Harshbarger appealed a directed verdict ruling in her negligence case against the Miami Herald Publishing Company and others after she allegedly tripped on a newspaper delivery wire. The court affirmed the directed verdict, finding that Harshbarger failed to present sufficient evidence establishing that the defendants owned or had notice of the wire that caused her injury.
The court held that the directed verdict was proper because Harshbarger failed to establish a prima facie case of negligence, as there was no evidence that the wire introduced was the actual wire causing her fall, and no evidence demonstrating that the defendants had actual or constructive notice of the wire's presence on the sidewalk.
[1] No liability can attach where the owner had neither actual nor constructive notice of the dangerous condition.
[2] A plaintiff must present evidence establishing that the dangerous condition was caused by the defendant or that the condition existed for a sufficient duration to provide…
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Join FLexlaw to unlock all legal intelligence“It is a well established principal of law that no liability can attach where it is not shown that the owner had actual or constructive notice of the dangerous condition.”
Establishes the fundamental legal standard for premises liability that Harshbarger failed to meet
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Join FLexlaw to unlock all legal intelligenceHarshbarger was walking on a public sidewalk in front of the Batchelors' house when her foot caught in a wire, causing her to trip and suffer injuries…
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PER CURIAM.
Plaintiff-appellant seeks review of a judgment in accordance with defendant-ap-pellees’ motions for directed verdict.
Plaintiff, Mary Harshbarger, filed a complaint against the Miami Herald Pub lishing Company, Danny Batchelor, a minor, and his mother Beatrice Batchelor. She alleged therein that Danny was employed by the Miami Herald as'a newspaper delivery boy and that newspapers bound by one or two wires were dropped off by the Herald’s district manager about three times a day; that while she was walking on a public sidewalk in front of Mrs. Batchelor’s house, her foot caught in a wire causing her to trip and fall and suffer serious injuries as a result thereof. The cause came on for trial by jury and all defendants moved for a directed verdict at the close of plaintiff’s case and again at the conclusion of the trial on the grounds of contributory negligence and failure to present a prima facie case. The trial judge reserved ruling on these motions and the jury returned a verdict in favor of the plaintiff in the sum of $3,000 against all defendants and the court entered judgment thereon. Thereafter, defendant-appellees filed motions for judgment in accordance with directed verdict which were granted. Plaintiff-appellant appeals therefrom and alleges the entry thereof was error on the grounds that the evidence presented could lawfully support a determination of negligence as to all defendants. We cannot agree.
It is a well established principal of law that no liability can attach where it is not shown that the owner had actual or constructive notice of the dangerous condition. Winn-Dixie Montgomery, Inc. v. Petterson, Fla.App.1974, 291 So. 2d 666 (Case No. S-381, 1 D.C.A. opinion filed February 14, 1974) and 23 Fla.Jur. Negligence § 17 (1959).
From the record, it affirmatively appears that the wire introduced into evidence by the plaintiff was not the actual wire she alleged she tripped on, but rather a sample of the wire which she claimed was the cause of her fall. Thus, there was not a single shred of evidence to establish that the newspaper wire of the defendant Miami Herald was in fact the object over which she stumbled.1 Cf. Pentecost v. City of Miami, Fla.App.1963, 155 So. 2d 395. Further, assuming arguendo that appellant did establish that it was the Herald’s newspaper wire in which she caught her foot, there was nothing in the evidence to demonstrate how the subject wire landed on the sidewalk; the duration, it remained there; that its presence was the result of some action of any of the defendants; or that the newspaper wire had been on the sidewalk a sufficient length of time to charge the defendant-appellees with constructive notice of its existence.. Therefore, we conclude that the appellant failed to show that the defendants had breached their duty toward her so that they must be held responsible in damages for her injuries. Cf. Messner, et al. v. Webb’s City, Inc., Fla.1952, 62 So. 2d 66.
Accordingly, the judgment herein appealed is hereby affirmed.
Affirmed.
. Thus, the instant case is distinguishable from Peairs v. Florida Publishing Company, Fla.App.1961, 132 So. 2d 561 upon which appellant has placed her reliance.
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Harshbarger v. Miami Herald Publ'g Co., 305 So. 2d 208 (Fla. 1974)…Certiorari denied. 294 So. 2d 41. ROBERTS, BOYD, McCAIN and OVERTON, JJ., concur. ADKINS, C. J., and ERVIN, J., dissent.…
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City OF S. Miami & Dade Cnty. v. Pytel, 412 So. 2d 938 (Fla. 3d DCA 1982)…aintiff utterly failed to establish that the County was responsible for the existence of the dangerous condition that caused the injury. Food Fair Stores of Florida, Inc. v. Patty, 109 So. 2d 5 (Fla.1959); Harshbarger v. Miami Herald Publishing Co., 294 So. 2d 41 (Fla. 3d DCA), cert. denied, 305 So. 2d 208 (Fla.1974). Since the plaintiff failed to establish a prima facie case of negligence against the County, and the County had no responsibility to go forward from that juncture of the proceedings, it was the…
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Authorities Cited
- Messner v. Webb's City, Inc., 62 So. 2d 66 (Fla. 1952)
- Peairs v. Fla. Publ'g Co., 132 So. 2d 561 (Fla. 1st DCA 1961)
- Winn-Dixie Montgomery, Inc. v. Petterson, 291 So. 2d 666 (Fla. 1st DCA 1974)
- Pentecost v. City OF Miami, 155 So. 2d 395 (Fla. 3d DCA 1963)