X. T. ECHEVERRIA ET AL., APPELLANTS,
v.
JOHN CHARLES BARCZAK, APPELLEE
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The trial court erred in refusing a sudden emergency instruction and improperly reduced the jury's damage award.
[1] A jury instruction on sudden emergency is properly refused when the evidence, viewed in the light most favorable to the requesting party, does not raise an issue for jury…
[2] A trial court may not reduce a jury's award of damages by the percentage of negligence attributed to an unnamed party.
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Join FLexlaw to unlock all legal intelligenceDefendants in a negligence case appealed a jury verdict for the plaintiff. The trial court refused a requested jury instruction on sudden emergency an…
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PER CURIAM.
The appellants were the defendants in an automobile negligence case. The jury returned a verdict for the plaintiff and this appeal is from the final judgment pursuant to the verdict.
Appellants’ single point urges that the trial court erred in refusing to instruct the jury upon a requested instruction on sudden emergency. Appellee’s brief makes no issue of whether the instruction was regularly requested or would have been a good instruction under a proper factual situation. See DuPree v. Pitts, Fla.App.1964, 159 So. 2d 904. Appellee urges, however, that the charge was properly refused because the sudden emergency claimed was not a condition of a sudden and unexpected nature. See Ellwood v. Peters, Fla.App. 1966, 182 So. 2d 281.
Our review of the record in the light of the briefs and the oral argument convinces us that when the record is viewed in the light most favorable to the appellant, it cannot be said that the evidence raised an issue for jury determination under the sudden emergency theory. Cf. Seitner v. Clevenger, Fla.1953, 68 So. 2d 396 and Ellwood v. Peters, Fla.App. 1966, 182 So. 2d 281.
The appellee has cross-assigned error upon the trial court’s apportionment of the jury verdict. The final judgment recites that the jury “ . . '. found the defendants 85% negligent and the plaintiff zero % negligent . . . ” The jury found the total damages sustained by the plaintiff-appellee to be $85,000. The trial judge entered a final judgment for the plaintiff for the sum of $72,250, thereby reducing the amount the jury found as lawful damage to the plaintiff by the amount of negligence attributed to some unnamed party. This procedure has been held improper by this court. See Issen v. Lincenberg, Fla.App.1974, 293 So. 2d 777; see also Maybarduk v. Bustamante, Fla.App. 1974, 294 So. 2d 374.
Accordingly, the judgment is reversed and the cause is remanded with directions to the court to enter a final judgment for the plaintiff against the defendants in the full amount of the jury verdict together with lawful interests and costs.
Affirmed in part, reversed in part and remanded.
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Echeverria v. Barczak, 321 So. 2d 558 (Fla. 1975)…Certiorari denied. 308 So. 2d 633. ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.…
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John Patrick Gilmore et ux. v. Morrison, 314 So. 2d 5 (Fla. 4th DCA 1975)…-negligent plaintiff-passenger’s recovery by the proportion of the plaintiff-driver’s negligence. Maybarduk v. Bustamante, Fla.App.1974, 294 So. 2d 374; Stuart v. Hertz Corporation, Fla.App.1974, 302 So. 2d 187; Echeverria v. Barczak, Fla.App. 1975, 308 So. 2d 633; and Acevedo v. Acosta, Fla.App.1974, 296 So. 2d 526. To hold otherwise would impute the negligence of the [*6] plaintiff-husband to the plaintiff-wife (evidence of which is not found herein), and would disregard the rule of no contribution between…
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Blocker v. Wynn, 425 So. 2d 166 (Fla. 1st DCA 1983)…fixing liability the negligence of a non-party tortfeasor cannot be apportioned. Model v. Rabinowitz, 313 So. 2d 59 (Fla. 3rd DCA 1975), cert. den. 327 So. 2d 34 (Fla.1976); Souto v. Segal, 302 So. 2d 465 (Fla. 3rd DCA 1974); Echeverria v. Barczak, 308 So. 2d 633 (Fla. 3rd DCA 1975), cert. den. 321 So. 2d 558 (Fla.1975); Travelers Ins. Co. v. Ballinger, 312 So. 2d 249 (Fla. 1st DCA 1975); and Davis v. Lewis, 331 So. 2d 320 (Fla. 1st DCA 1976), cert. den. 348 So. 2d 946 (Fla.1977). They urge, however, that no…
Authorities Cited
- Dupree v. Pitts, 159 So. 2d 904 (Fla. 3d DCA 1964)
- Issen v. Lincenberg, 293 So. 2d 777 (Fla. 3d DCA 1974)
- Maybarduk v. Bustamante, 294 So. 2d 374 (Fla. 4th DCA 1974)
- Seitner v. Clevenger et ux., 68 So. 2d 396 (Fla. 1953)
- Brooks B. Ellwood v. Etta Peters, 182 So. 2d 281 (Fla. 1st DCA 1966)