VAN HOVEN
v.
BURK
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Van Hoven sued Burk for personal injuries under Florida's guest statute. The trial court granted Burk's motion to dismiss directed verdict based solely on the plaintiff's opening statement to the jury. The Florida Supreme Court reversed, holding that an opening statement is not a proper basis for directing a verdict and that negligence questions must go to the jury.
The trial court erred in granting a directed verdict based on the opening statement. An opening statement is merely the plaintiff's theory of the case and what he proposes to prove; it is not a sufficient basis for directing a verdict. The question of negligence, gross negligence, and willful or wanton misconduct must be decided by the jury.
“An opening statement to the jury is no basis on which to grant a directed verdict. It is nothing more than the plaintiff's theory of the case and what he proposes to prove.”
Establishes the fundamental principle that an opening statement cannot support a directed verdict motion
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Join FLexlaw to unlock all legal intelligenceVan Hoven brought an action for personal injuries against Burk, who admitted the accident but denied he was driving the car at the time. The case proc…
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TERRELL, Justice.
Appellant brought this action against appellee to recover damages for personal injuries under the guest statute, Section 320.59, F.S.A. There was an answer to the complaint to which defendant admitted the accident but denied that he was driving the car at .the time it occurred. The case, came on for trial and counsel for the plaintiff made his opening statement to the jury. The defendant moved to'dismiss' on the ground that the’facts set out in the opening statement were not sufficient on which to predicate a verdict for the plaintiff for gross negligence. The Court granted the motion and entered a final judgment for defendant. Thereupon the plaintiff appealed from the judgment.
The point for determination is whether or not the trial court committed error in directing a verdict for the defendant after having heard the opening statement of the plaintiff to the jury.
The court stated in its order that it was directing the verdict for the defendant “aside from the question of assumption of risk or any possible question of contributory negligence and entirely on the ground that the facts of the opening statement, if proved, would not be sufficient for a jury verdict under the guest statute.” In so holding we think the trial court committed error. We do no think the complaint is a model pleading but no question was raised as to that. An opening statement to the jury is no basis on which to grant a directed verdict. It is nothing more than the plaintiff’s theory of the case and what he proposes to prove. He may prove much or he may not prove any of it to the .satisfaction of the jury. The plaintiff may prove matters not embraced in the opening statement.
Since no question was raised as to the sufficiency of the pleadings and the trial court rej ected all questions as to assumption of risk and contributory negligence, we are of the view that the case should have gone to the jury on the evidence. The question of ne.gligence, gross negligence, and wilful or wanton misconduct shall in all such cases be solely for the jury.
The judgment is accordingly reversed.
Reversed.
ROBERTS,. C. J., and SEBRING and MATHEWS, JJ., concur. -
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Croom-Johnson, Inc. v. Rand Broad. Co., 139 So. 2d 741 (Fla. 3d DCA 1962)…presents two points. The first urges that the directed verdict was improper at the stage in the trial proceedings at which it was granted. We must sustain appellant’s contention on this ground. § 54.17, Fla.Stat., F.S.A. Van Hoven v. Burk, Fla.1954, 71 So. 2d 158; Southern Wood Industries v. Florida Carolina Lumber Company, Fla.1956, 84 So. 2d 589; Ahearn v. Florida Power and Light Company, Fla.App.1959, 113 So. 2d 751. Inasmuch as it is necessary to reverse this judgment upon the basis stated, it is unnece…
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Sondra Hess v. Hess (Fla. 2d DCA 2019)