DANETTE S. QUINA AND GREGORY T. QUINA, APPELLANTS,
v.
R. J. HARRELL, APPELLEE
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A minor's injury from entanglement in a go-cart drive chain resulted in a defendant verdict based on a jury instruction on assumption of risk. The First District Court of Appeal reversed, holding that no evidence supported submission of the assumption of risk issue to the jury.
The assumption of risk issue should not have been submitted to the jury because there was no evidence in the record from which the jury could properly have found that Danette 'more or less deliberately' and willingly exposed herself to the specific risk which resulted in her injury.
[1] Assumption of risk is an affirmative defense that requires a plaintiff to have more or less deliberately and willingly exposed themselves to the specific risk that caused…
[2] A general objection to a jury charge is insufficient to preserve an issue for appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The issue of assumption of risk should not have been submitted to the jury for any purpose.”
States the core holding: that assumption of risk was improper as a matter of law.
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Join FLexlaw to unlock all legal intelligenceDanette S. Quina, a minor, was injured when her long hair became entangled in the drive chain of a go-cart she operated at appellee's track. Her paren…
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SMITH, Judge.
Appellant Danette S. Quina, a minor, was injured when her long hair became entangled in the drive chain of a go-cart she operated at appellee’s track. In the ensuing action by Danette and her father for money damages, appellee pleaded affirmatively the defense of assumption of risk as well as that of contributory negligence. On consideration of appellee’s motion for directed verdict, the trial court refused to withdraw the issue of assumption of risk from the jury’s consideration; and the court charged the jury, if Danette assumed the risk, it would entirely bar her recovery. The jury returned a verdict for defendant and a judgment was entered on the verdict.
While the trial court’s charge on assumption of the risk was contrary to our later decision in Parker v. Maule Industries, Inc., 321 So. 2d 106 (Fla.App.1st, 1975), cert, pending, we would not reverse for that error alone because appellants’ objection to the charge was not specific, as required by Young v. Phillips Petroleum Co., 333 So. 2d 87 (Fla.App.1st, 1976). Neither was the objection accompanied by a requested charge which appellants conceived would be appropriate, if the issue were to be submitted at all. But we find that there is no evidence in the record from which the jury could properly have found that Danette “more or less deliberately” and willingly exposed herself to the specific risk which resulted in her injury. The issue of assumption of risk should not have been submitted to the jury for any purpose. Byers v. Gunn, 81 So. 2d 723 (Fla.1955). See also Brady v. Kane, 111 So. 2d 472 (Fla.App.3d, 1959); Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954); City of Jacksonville Beach v. Jones, 101 Fla. 96, 133 So. 562 (1931). Contra, Crosier v. Joseph Abraham Ford Co., 150 So. 2d 499 (Fla.App.3d, 1963), cert. den. 155 So. 2d 693 (Fla.1963).
REVERSED.
McCORD, Acting C. J., and MILLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bartholf v. Baker, 71 So. 2d 480 (Fla. 1954)
- Byers v. Gunn, 81 So. 2d 723 (Fla. 1955)
- Brady v. Kane, 111 So. 2d 472 (Fla. 3d DCA 1959)
- Parker v. Maule Indus., Inc., 321 So. 2d 106 (Fla. 1st DCA 1975)
- Larnel Builders, Inc. v. Bergman, 150 So. 2d 499 (Fla. 3d DCA 1963)
- Quarterman v. State, 155 So. 2d 693 (Fla. 1963)
- Stevens v. U & M E Transfer, Inc., 155 So. 2d 693 (Fla. 1963)
- Stamitoles v. Bernie Mae Outlaw and James E. Outlaw, 333 So. 2d 87 (Fla. 1st DCA 1976)