Bennett M. Lifter, Inc. v. Varnado

480 So. 2d 1336, 63 A.L.R. 4th 871
CourtDistrict Court of Appeal of Florida
DecidedNovember 26, 1985
Docket84-251
StatusPublished
Cited by26 cases

This text of 480 So. 2d 1336 (Bennett M. Lifter, Inc. v. Varnado) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bennett M. Lifter, Inc. v. Varnado, 480 So. 2d 1336, 63 A.L.R. 4th 871 (Fla. Ct. App. 1985).

Opinion

480 So.2d 1336 (1985)

BENNETT M. LIFTER, INC., Appellant,
v.
Louis Coleman VARNADO, a Minor, by and through His Mother and Next Friend Andrea VARNADO, and Andrea Varnado, Individually, Appellees.

No. 84-251.

District Court of Appeal of Florida, Third District.

November 26, 1985.

*1337 Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.

Joe N. Unger, Proenza & White, Miami, for appellees.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

FERGUSON, Judge.

This appeal takes us again into the murky waters of proximate causation. The main issue is whether the question of proximate cause should have been taken away from the jury and decided as a matter of law.

Louis Varnado, a four-year-old child, sustained serious bodily burns from boiling water carried in a pot by his grandmother when he collided with her. The grandmother was carrying water from the kitchen to the bathroom of the house which Louis' mother leased from defendant, Bennett M. Lifter, Inc. At the time of the accident on Saturday, March 28, 1981, the electric hot water heater at the Varnado house had been inoperable for three days.

Although the grandmother, Mrs. Wilson, reported the problem to an employee of the defendant, no one was dispatched by the defendant to repair the heater between Wednesday afternoon and Saturday. During those three days Mrs. Wilson boiled pots of water on the stove and carried them the six to seven feet from the kitchen to the bathroom for purposes of personal cleanliness and hygiene of the household members.

On the day of the accident, Louis' mother, Andrea Varnado, and her mother, Mrs. Wilson, were filling the bathtub with hot water so that Mrs. Varnado could take the baths prescribed by her doctor. Mrs. Varnado had already boiled three pots of water on the kitchen stove, and transported them to the bathroom. While in the bathroom with Louis at her side, she realized that she did not need a fourth pot and instructed Louis to tell his grandmother that they had enough. The accident occurred as the child left the bathroom on the way to the kitchen to deliver the message.

The evidence showed further that the hot water heater, which had become inoperable on three or four occasions over the prior six months, had been repaired by the defendant only by replacing fuses or instructing the plaintiffs to replace the fuses. Plaintiffs' expert, an electrical engineer, in describing defendant's conduct, opined that "I don't think reasonable care was exercised." He diagnosed the problem as defective electrical wiring which could have been found and corrected by "[e]ven an apprentice electrician."

In their complaint the minor, through his mother, and the mother, individually, alleged that (1) defendant carelessly and negligently repaired the defective heater, leaving plaintiffs without hot water and requiring that heated water be carried from the kitchen to the bathtub with foreseeable risks of harm, and (2) defendant violated section 17-23, Metropolitan Dade County Code by failing to provide an adequate supply of hot water which proximately led to Louis' injuries. Defendant's pretrial motion for summary judgment was denied.

In the course of trial defendant challenged several of the jury instructions requested by plaintiffs and accepted by the court. After the jury had heard all of the evidence defendant made a motion for a directed verdict which was denied. The jury returned verdicts in favor of the plaintiffs fixing Louis' damages at $750,000 and his mother's at $25,000.

As points on appeal defendant contends first that it was entitled to a judgment as a matter of law because (1) it breached no duty requiring it to conform to a certain standard of conduct for the protection of others including the plaintiffs, and (2) the alleged breach of duty was not the proximate cause of the accident. On the proximate cause issue defendant argues that accidents such as the one sub judice are unusual and cannot reasonably be said to occur as a natural and probable consequence of a temporarily inoperable hot water heater. Instead, defendant argues, it *1338 was Mrs. Varnado's own acts which were the direct cause of the accident, i.e., her act of boiling water rather than merely heating it, and her act of instructing Louis to go to the specific area where she knew Louis' grandmother might be carrying boiling water.

As grounds for a new trial defendant contends that the trial court committed the following prejudicial reversible errors during trial: (1) the court permitted defendant to read portions of section 17-23, Metropolitan Dade County Code to the jury and instructed the jury that a violation of the ordinance was evidence of negligence; (2) the court instructed the jury on "concurring cause" where the facts of the case served as a basis only for an instruction on legal cause, as supplemented with an instruction on "intervening cause"; (3) the court refused to comply with the jury's request that the instructions defining legal cause be reread; and (4) the standard jury instruction by which the trial court defined the negligence issue to be determined by the jury was an inaccurate statement of Florida substantive law and was prejudicial to defendant.

Addressing first defendant's contention regarding lack of a duty, we affirm the trial court's implicit determination that the minimum housing standards set forth in section 17-23, Metropolitan Dade County Code imposed a duty upon the landlord to provide hot running water in every basin, bathtub or shower. Although the question whether a plaintiff is within the class which the ordinance was intended to protect is a question of fact, it cannot be disputed here that plaintiffs, as tenants, were within the protected class. The remaining questions are whether the injury suffered by the plaintiff was of the type which the ordinance was intended to prevent, and whether violation of the code was the proximate cause. See de Jesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla. 1973); Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA), cert. denied, 348 So.2d 946 (Fla. 1977).

"[I]n personal injury cases where liability is grounded in a statute or ordinance violation, questions of whether a plaintiff comes within the class of persons intended to be protected by the statute or ordinance and whether the injury is of the kind generally intended to be prevented have been dealt with in terms of proximate cause and, as such, are subject to the determinations of the triers of fact." Enis v. Ba-Call Building Corp., 639 F.2d 359, 362 (7th Cir.1980) (citing Shehy v. Bober, 78 Ill. App.3d 1061, 1067, 34 Ill.Dec. 405, 410, 398 N.E.2d 80, 85 (1979)). The court properly left the matter to the trier of fact when it instructed the jury that violation of the code could be considered as evidence of negligence. See de Jesus; Grand Union Co. v. Rocker, 454 So.2d 14 (Fla. 3d DCA 1984).

We consider briefly the issues of proximate cause and foreseeability. In Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983), proximate causation was examined exhaustively. In that case it was alleged that the defendant negligently maintained a bicycle path, which caused a minor bicyclist to veer off the path to avoid a spill and cross an adjoining grassy treelined area onto a street where he was struck by an oncoming vehicle.

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Bluebook (online)
480 So. 2d 1336, 63 A.L.R. 4th 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-m-lifter-inc-v-varnado-fladistctapp-1985.