VICTOR DAVID ORFALY, APPELLANT,
v.
RAYMOND JEFFRIES AND FIREMAN'S FUND INSURANCE COMPANY, ETC., APPELLEES
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The court held that an oral request for a comparative negligence charge was sufficient to properly raise the issue, allowing for retrospective application of Hoffman v. Jones.
The plaintiff in the trial court made only an oral request for a comparative negligence charge. This occurred between two key Florida Supreme Court de…
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PER CURIAM.
Following a review of the petition for rehearing in this cause, the opinion filed heretofore in this cause on December 21, 1973 be and the same is hereby withdrawn. Substituted in place thereof is the following opinion.
The question to be determined on this appeal is whether or not the plaintiff in the trial court “appropriately and properly” raised the applicability of a comparative negligence charge. The matter in the trial court occurred between the date the Fourth District Court of Appeal rendered its decision in Jones v. Hoffman, Fla.App.1973, 272 So. 2d 529, and the date the Supreme Court of Florida rendered its decision in Hoffman v. Jones, Fla.1973, 280 So. 2d 431.
It is conceded that no written comparative negligence charge was submitted by the plaintiff in accordance with Rule 1.470(b), F.R.C.P., 30 F.S.A., and that only an oral request to the court to entertain such was made.
Following a review of the Supreme Court opinion in Thornton v. Elliott, Fla. 1973, 288 So. 2d 254, and this court’s opinion in Butler v. Woolco Department Store, Fla.App.1973, 284 So. 2d 434, and the opinion of the First District Court of Appeal in Rittenbery v. Eddins, Fla.App.1973, 272 So. 2d 840, we conclude that the request for a comparative negligence charge was “appropriately and properly” made during the trial, which would bring the matter within the retrospective application of Hoffman v. Jones, Fla.1973, 280 So. 2d 431.
Therefore, the final judgment here under review be and the same is hereby reversed, with instructions to grant the plaintiff a new trial.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Morowitz v. Vistaview Apts., Ltd., 613 So. 2d 493 (Fla. 3d DCA 1993)…dge has ruled on merits of oral request), review denied, 496 So. 2d 143 (Fla.1986); Corbett v. Dade County Bd. of Pub. Instruction, 372 So. 2d 971, 974-975 n. 3 (Fla. 3d DCA 1979) (same), cert. denied, 383 So. 2d 1192 (Fla.1980); Orfaly v. Jeffries, 290 So. 2d 575, 576 (Fla. 3d DCA 1974) (oral request sufficient to bring within retroactive application of newly adopted comparative negligence doctrine). In this case, the exigencies of an ongoing trial, as well as counsel’s inability to predict which instructio…
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Seymour Premer v. State, 300 So. 2d 737 (Fla. 3d DCA 1974)…reserved for review on appeal and, under the Supreme Court decision in Hoffman v. Jones, supra, this entitles the plaintiff to a new trial. See also: Butler v. Woolco Department Store, Fla.App.1973, 284 So. 2d 434; Orfaly v. Jeffries, Fla. App.1974, 290 So. 2d 575; Jones v. Flowers, Fla.App.1974, 293 So. 2d 765. Reversed and remanded for new trial.…
Authorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Jones v. Hoffman, 272 So. 2d 529 (Fla. 4th DCA 1973)
- Melita Anne Thornton v. Elliott, 288 So. 2d 254 (Fla. 1973)
- Evangeline Butler v. Woolco Dep't Store, 284 So. 2d 434 (Fla. 3d DCA 1973)
- Rittenbery v. Eddins, 272 So. 2d 840 (Fla. 1st DCA 1973)