McDougald v. Perry

716 So. 2d 783, 1998 WL 559028
CourtSupreme Court of Florida
DecidedSeptember 4, 1998
Docket91595
StatusPublished
Cited by20 cases

This text of 716 So. 2d 783 (McDougald v. Perry) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDougald v. Perry, 716 So. 2d 783, 1998 WL 559028 (Fla. 1998).

Opinion

716 So.2d 783 (1998)

Lawrence D. McDOUGALD, Petitioner,
v.
Henry D. PERRY and C & S Chemicals, Inc., Respondents.

No. 91595.

Supreme Court of Florida.

September 4, 1998.

*784 Hank B. Campbell and Christine C. Daly of Lane, Trohn, Bertrand & Vreeland, P.A., Lakeland, and Raymond Ehrlich and Scott D. Makar of Holland & Knight, Jacksonville, for Petitioner.

Douglas M. Fraley and Margie I. Fraley of Fraley and Fraley, P.A., Tampa, for Respondent.

WELLS, Justice.

We have for review Perry v. McDougald, 698 So.2d 1256 (Fla. 2d DCA 1997), which conflicts with Cheung v. Ryder Truck Rental, Inc., 595 So.2d 82 (Fla. 5th DCA 1992). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Lawrence McDougald sued Henry Perry and Perry's employer, C & S Chemical, Inc., (collectively referred to as respondents), for personal injuries sustained in an accident which occurred on July 26, 1990, on U.S. Highway 60 West, in Bartow, Florida. On July 26, McDougald was driving behind a tractor-trailer which was driven by Perry. The trailer was leased by C & S from Ryder Truck Rentals, Inc. As Perry drove over some railroad tracks, the 130-pound spare tire came out of its cradle underneath the trailer and fell to the ground. The trailer's rear tires then ran over the spare, causing the spare to bounce into the air and collide the windshield of McDougald's Jeep Wagoneer.

The spare tire was housed in an angled cradle underneath the trailer and was held in place by its own weight. Additionally, the tire was secured by a four to six-foot long chain with one-inch links, which was wrapped around the tire. Perry testified that he believed the chain to be the original chain that came with the trailer in 1969. Perry also stated that, as originally designed, the chain was secured to the body of the trailer by a latch device. At the time of the accident, however, the chain was attached to the body of the trailer with a nut and bolt.

Perry testified that he performed a pretrip inspection of the trailer on the day of the accident. This included an inspection of the chain, although Perry admitted that he did not check every link in the chain. After the accident, Perry noticed that the chain was dragging under the trailer. Perry opined that one of the links had stretched and slipped from the nut which secured it to the trailer.[1] The judge instructed the jury on the doctrine of res ipsa loquitur. The jury subsequently returned a verdict in McDougald's favor.

On appeal, the district court reversed with instructions that the trial court direct a verdict in respondents' favor. The district court concluded that the trial court erred by: (1) not directing a verdict on the issue of negligence; (2) instructing the jury on res ipsa loquitur; and (3) not directing a verdict on the issue of past and future loss of earning capacity. Perry v. McDougald, 698 So.2d 1256, 1258 (Fla. 2d DCA 1997). We granted McDougald's petition for review to resolve the conflict in the application of the doctrine of res ipsa loquitur.[2] For the reasons expressed herein, we quash the decision below and approve the Fifth District's application of res ipsa loquitur to the circumstances of a wayward automobile wheel accident.

This Court discussed the applicability of the doctrine of res ipsa loquitur in Marrero v. Goldsmith, 486 So.2d 530 (Fla.1986); City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla.1982); and Goodyear Tire & Rubber Co. v. Hughes Supply, *785 Inc., 358 So.2d 1339, 1341 (Fla.1978). In Marrero, we stated:

Res ipsa loquitur is a Latin phrase that translates "the thing speaks for itself." Prosser and Keaton, Law of Torts § 39 (5th ed.1984). It is a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. "[T]he doctrine of res ipsa loquitur is merely a rule of evidence. Under it an inference may arise in aid of the proof." Yarbrough v. Ball U-Drive System, 48 So.2d 82, 83 (Fla.1950). In Goodyear, a products liability case, we explained the doctrine as follows:
It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.
Goodyear, 358 So.2d at 1341-42, (footnotes omitted).

Marrero, 486 So.2d at 531.

In concluding that it was reversible error for the trial court to give the res ipsa loquitur instruction, the Second District determined that "McDougald failed to prove that this accident would not, in the ordinary course of events, have occurred without negligence by the defendants." McDougald, 698 So.2d at 1259 (citing Goodyear). The court explained that, "[t]he mere fact that an accident occurs does not support the application of the doctrine." Id. In support of the Second District's conclusion, respondents cite to Burns v. Otis Elevator Co., 550 So.2d 21 (Fla. 3d DCA 1989), in which the Third District stated:

To prevail at trial, plaintiff must still present sufficient evidence, beyond that of the accident itself, from which the jury may infer that the accident would not have occurred but for the defendants' breach of due care.

Id. at 22. Respondents assert that this language means that res ipsa loquitur did not apply in this case because "there was no expert or other testimony or evidence that the failure of the safety chain and the spare tire's exit onto the roadway would not ordinarily occur in the absence of [respondents'] negligence." Answer Brief of Respondents at 19.

The Second and Third Districts misread and interpret too narrowly what we stated in Goodyear. We did not say, as those courts conclude, that "the mere fact that an accident occurs does not support the application of the doctrine." Rather, we stated:

An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

Goodyear, 358 So.2d at 1342 (emphasis added). Goodyear and our other cases permit latitude in the application of this common-sense inference when the facts of an accident in and of themselves establish that but for the failure of reasonable care by the person or entity in control of the injury producing object or instrumentality the accident would not have occurred. On the other hand, our present statement is not to be considered an expansion of the doctrine's applicability. We continue our prior recognition that res ipsa loquitur applies only in "rare instances."

The following comments in section 328D of Restatement (Second) of Torts (1965) capture the essence of a proper analysis of this issue:

c. Type of event.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Morhardt v. Carnival Corp.
304 F. Supp. 3d 1290 (S.D. Florida, 2017)
Simon Dockswell v. Bethesda Memorial Hospital, Inc., etc.
210 So. 3d 1201 (Supreme Court of Florida, 2017)
MacClatchey v. HCA Health Services of Florida, Inc.
139 So. 3d 970 (District Court of Appeal of Florida, 2014)
Angela Hancock v. Wal-Mart Stores East, L.P.
487 F. App'x 545 (Eleventh Circuit, 2012)
Soltwisch v. Pasco County
33 So. 3d 85 (District Court of Appeal of Florida, 2010)
Nodurft v. Servico Centre Associates, Ltd.
884 So. 2d 395 (District Court of Appeal of Florida, 2004)
Bacó ex rel. Castillo de Jesús v. Almacén Ramón Rosa Delgado Inc.
151 P.R. Dec. 711 (Supreme Court of Puerto Rico, 2000)
C & S CHEMICALS, INC. v. McDougald
754 So. 2d 795 (District Court of Appeal of Florida, 2000)
Strahan v. Gauldin
756 So. 2d 158 (District Court of Appeal of Florida, 2000)
Russell v. American Eagle Airlines, Inc.
46 F. Supp. 2d 1330 (S.D. Florida, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
716 So. 2d 783, 1998 WL 559028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdougald-v-perry-fla-1998.