MOLLIE COHN, APPELLANT,
v.
SURFSIDE PLAZA HOTEL, APPELLEE
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A 78-year-old woman was injured after falling over a two-inch hose placed across a public walkway at a hotel property. The trial court granted a directed verdict for the defendant, but the appellate court reversed, holding that the comparative negligence issue should have been submitted to the jury.
The directed verdict was improper. The pleadings raised the issue of comparative negligence, which should have been resolved by the trial jury rather than determined by the judge through a directed verdict.
[1] When reviewing a directed verdict, the record must be viewed in a light most favorable to the party moved against.
[2] A jury must resolve issues of comparative negligence.
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Join FLexlaw to unlock all legal intelligence“The record therefore should be viewed in a light most favorable to the party moved against.”
Establishes the standard of review applicable when reviewing a directed verdict decision
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Join FLexlaw to unlock all legal intelligencePlaintiff, a 78-year-old woman, fell over a two-inch hose placed across a public promenade or concourse behind the defendant hotel's premises. Just be…
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BARKDULL, Judge.
Plaintiff appeals a final judgment on a directed verdict in favor of the defendant in a slip and fall case. The record therefore should be viewed in a light most favorable to the party moved against. Mathis v. Lambert, 274 So. 2d 601 (Fla. 3d DCA 1973); Kilburn v. Davenport, 286 So. 2d 241 (Fla. 3d DCA 1973); Lovings v. Seaboard Coastline Railroad Company, 340 So. 2d 1279 (Fla. 3d DCA 1977).
Plaintiff, a 78-year-old woman, was injured while walking on a promenade or concourse behind the premises of the defendant. She fell over or upon a two-inch hose placed across this public walkway by employees of the defendant.1 Plaintiff testified that just prior to her fall, her attention was districted due to noises in the restaurant at this location, which was owned by the defendant. At no time prior to her fall did plaintiff see the hose on that day nor had she ever seen a hose on a prior occasion. On prior occasions, when the hose was placed across this public walkway, “orange cones” were placed at each end notifying passersby of the existence of the hose.
[*CXXV] The pleadings raised the issue of comparative negligence of the parties and the trial judge should have left the resolution of this issue to the trial jury. Therefore, the final judgment based on the directed verdict be and the same is hereby reversed, with directions to accord the plaintiff a trial.
Reversed and remanded, with directions.
. 16 Fla.Jur., Highways, Streets and Bridges, § 119; 39 Am.Jur.2d, Highways, Streets and Bridges, §§ 365 and 366.
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Eli Plotch and Philip Berkley v. August Gregory, Jr., 463 So. 2d 432 (Fla. 4th DCA 1985)…t most favorable to [*436] the non-moving party, it appears that the trier of fact could not have reasonably differed as to the establishment of material facts. McDonald v. McGowan, 402 So. 2d 1197 (Fla. 5th DCA 1981); Cohn v. Surf-side Plaza Hotel, 377 So. 2d 44 (Fla. 3d DCA 1979); Dent v. Casale, 358 So. 2d 1101 (Fla. 3d DCA), cert, denied, 365 So. 2d 710 (Fla.1978). It is reversible error to direct a verdict where there is some substantial evidence tending to prove the plaintiffs case. Memorial Park, Inc.…
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Authorities Cited
- Jeno F. Paulucci v. Fla. Power Corp., 286 So. 2d 241 (Fla. 4th DCA 1973)
- Mathis v. Adolphus L. Lambert, 274 So. 2d 601 (Fla. 3d DCA 1973)
- Lovings v. Seaboard Coastline R.R. Co., 340 So. 2d 1279 (Fla. 3d DCA 1977)