STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS, APPELLANT,

v.

MICHAEL ROMERO, APPELLEE

COBB, Judge.

Appellee, Michael Romero, while an inmate at the Brevard Correctional Institution, was injured when he fell from the seat of a mowing tractor he was driving as part of a prison work detail. The tractor, travelling approximately 10 miles per hour, rolled over Romero, severely injuring his back. Romero sued the State of Florida, Department of Corrections (DOC), claiming it was negligent in not providing the tractor with a seatbelt.1 The trial jury determined the DOC to be 100% negligent and Romero to be free from any negligence, and awarded $100,000 in compensatory damages.2 Defense motions for directed verdict and new trial were denied.

The key issue on this appeal is whether the trial court erred in denying the DOC’s motion for new trial based on the argument that the jury verdict allocating no contributory negligence to the plaintiff himself was contrary to the manifest weight of the evidence. See New Deal Cab Company v. Stubbs, 90 So. 2d 614 (Fla.1956). At trial, in response to his attorney’s query as to how the accident happened, Romero testified:

A. Okay. As soon as I got on 520 headed east on the right-hand side shoulder, what I remember is we have work boots they issue in prison and my laces were undone. And I remember they were dangling down and I didn’t want to get them caught on the clutch peddle or get caught in any foreign object around the tractor. So, I reached down and I stuffed the shoelaces in my boot to try to get them, you know, get the shoelaces out of my way and continue driving.

As I was leaning down, I had a hand on the wheel and I was stuffing the shoelaces. And the next thing I remember it was either a dip, a bump, I don’t know what it was. Something forced me to, you know, just lose my balance and the motion carried me towards the left side of the tractor. The jury apparently accepted the plaintiff’s “but-for” argument: but for the absence of a seatbelt, Romero would not have fallen; therefore, DOC was 100% at fault. This approach is a misapplication of the theory of proximate cause. It could be said, with at least equal logic, that but for the fact that Romero did not stop the tractor in order to fix his shoelace, he would not have fallen and been run over. Under the facts as attested by Romero, he could not have been guiltless of all negligence proximately causing his injury. The evidence is uncontroverted that one reason, if not the principal reason, that Romero fell was because he hit a dip or bump while leaning down “stuffing his shoelaces” with the tractor in motion. The jury verdict, completely absolving Romero of fault, can only be the result of a misunderstanding of the applicable law or a disregard of that law because of sympathy or prejudice. Accordingly, the judgment entered below is reversed for a new trial on the issue of the comparative negligence of the respective parties. The jury’s determination of damages is not affected by this opinion.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

ORFINGER, J., dissents with opinion.

. An operator’s manual provided by the manufacturer recommended seatbelts for mowing tractors equipped with a roll bar, as was the tractor in the instant case.

. It should be noted that section 946.14(3), Florida Statutes (1985), provides for liability for inmate injury while on work detail. The extent of the liability is governed by section 768.28, Florida Statutes (1985). Subsection (1) of that statute waives sovereign immunity, and subsection (5) provides that a maximum amount of $100,000 may be awarded, but that punitive damages are not permissible.

ORFINGER, Judge,

dissenting.

The issue of comparative negligence is one for the jury’s determination. Here the jury was properly instructed and determined that the plaintiff was not negligent. In denying appellant’s motion for new trial, the trial judge implicitly overruled appellant’s contention that the verdict was contrary to the manifest weight of the evidence. The discretionary power to grant or deny a motion for new trial is given to the trial judge because of his direct and superior vantage point and his ruling on that motion should not be disturbed in the absence of a clear showing that such discretion has been abused. Baptist Memorial Hospital, Inc. v. Bell, 384 So. 2d 145 (Fla.1980). There is no such showing here. I would affirm.

COBB, Judge.

The appellee’s motion for rehearing is denied. In response to said motion, however, and for purposes of clarification, the fifth sentence in the last paragraph of said opinion is deleted, to-wit:

The evidence is uncontroverted that one reason, if not the principal reason, that Romero fell was because he hit a bump while not paying attention to his driving and while leaning out of his seat with the tractor in motion.

Substituted for the deleted sentence is the following:

The evidence is uncontroverted that one reason, if not the principal reason, that Romero fell was because he hit a dip or bump while leaning down ‘stuffing his shoelaces’ with the tractor in motion.

So Ordered.

DAUKSCH, J., concurs.

ORFINGER, J., dissents with opinion.

ORFINGER, Judge,

dissenting.

I believe that rehearing should be granted for the reasons expressed in my original dissent. The majority has held that Romero was guilty of negligence as a matter of law when he stuffed his untied shoelaces into his boot because he “didn’t want them to get caught on the clutch peddle or get caught in any foreign object around the tractor.” The question of whether a party’s acts are negligent, and if so whether they are a proximate cause of his injury is generally one for the jury unless reasonable men could not differ in their determination of that question. Helman v. Seaboard Coast Line Railroad Company, 349 So. 2d 1187 (Fla.1977).

See also Holmes v. Don Medley Chevrolet, Inc., 468 So. 2d 552 (Fla. 5th DCA 1985); Ferber v. Orange Blossom Center, 388 So. 2d 1074 (Fla. 5th DCA 1980).

There was no testimony to indicate that Romero was not looking where he was going while he tucked his laces in, or that he was operating the tractor negligently, and he testified that he had one hand on the wheel while he tucked in his laces. Based on the testimony presented, it seems to me that reasonable men could differ as to whether Romero was negligent, and as to whether such negligence, if it existed, was a contributing cause of his injury, so that a jury question was presented, the result of which we should not disturb. I would grant rehearing and affirm.