Quina v. Harrell

District Court of Appeal of Florida

Quina v. Harrell

338 So. 2d 238, 1976 Fla. App. LEXIS 15606

CourtDistrict Court of Appeal of Florida

DecidedOctober 6, 1976

DocketNo. X-8

StatusPublished

This text of 338 So. 2d 238 (Quina v. Harrell) 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.

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Quina v. Harrell, 338 So. 2d 238, 1976 Fla. App. LEXIS 15606 (Fla. Ct. App. 1976).

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Opinion

SMITH, Judge.

Appellant Danette S. Quina, a minor, was injured when her long hair became entangled in the drive chain of a go-cart she operated at appellee’s track. In the ensuing action by Danette and her father for money damages, appellee pleaded affirmatively the defense of assumption of risk as well as that of contributory negligence. On consideration of appellee’s motion for directed verdict, the trial court refused to withdraw the issue of assumption of risk from the jury’s consideration; and the court charged the jury, if Danette assumed the risk, it would entirely bar her recovery. The jury returned a verdict for defendant and a judgment was entered on the verdict.

While the trial court’s charge on assumption of the risk was contrary to our later decision in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla.App.1st, 1975), cert, pending, we would not reverse for that error alone because appellants’ objection to the charge was not specific, as required by Young v. Phillips Petroleum Co., 333 So.2d 87 (Fla.App.1st, 1976). Neither was the objection accompanied by a requested charge which appellants conceived would be appropriate, if the issue were to be submitted at all. But we find that there is no evidence in the record from which the jury could properly have found that Danette “more or less deliberately” and willingly exposed herself to the specific risk which resulted in her injury. The issue of assumption of risk should not have been submitted to the jury for any purpose. Byers v. Gunn, 81 So.2d 723 (Fla.1955). See also Brady v. Kane, 111 So.2d 472 (Fla.App.3d, 1959); Bartholf v. Baker, 71 So.2d 480 (Fla. 1954); City of Jacksonville Beach v. Jones, 101 Fla. 96, 133 So. 562 (1931). Contra, Crosier v. Joseph Abraham Ford Co., 150 So.2d 499 (Fla.App.3d, 1963), cert. den. 155 So.2d 693 (Fla.1963).

REVERSED.

McCORD, Acting C. J., and MILLS, J., concur.

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SMITH, Judge.

Appellant Danette S. Quina, a minor, was injured when her long hair became entangled in the drive chain of a go-cart she operated at appellee’s track. In the ensuing action by Danette and her father for money damages, appellee pleaded affirmatively the defense of assumption of risk as well as that of contributory negligence. On consideration of appellee’s motion for directed verdict, the trial court refused to withdraw the issue of assumption of risk from the jury’s consideration; and the court charged the jury, if Danette assumed the risk, it would entirely bar her recovery. The jury returned a verdict for defendant and a judgment was entered on the verdict.

While the trial court’s charge on assumption of the risk was contrary to our later decision in Parker v. Maule Industries, Inc., 321 So.2d 106 (Fla.App.1st, 1975), cert, pending, we would not reverse for that error alone because appellants’ objection to the charge was not specific, as required by Young v. Phillips Petroleum Co., 333 So.2d 87 (Fla.App.1st, 1976). Neither was the objection accompanied by a requested charge which appellants conceived would be appropriate, if the issue were to be submitted at all. But we find that there is no evidence in the record from which the jury could properly have found that Danette “more or less deliberately” and willingly exposed herself to the specific risk which resulted in her injury. The issue of assumption of risk should not have been submitted to the jury for any purpose. Byers v. Gunn, 81 So.2d 723 (Fla.1955). See also Brady v. Kane, 111 So.2d 472 (Fla.App.3d, 1959); Bartholf v. Baker, 71 So.2d 480 (Fla. 1954); City of Jacksonville Beach v. Jones, 101 Fla. 96, 133 So. 562 (1931). Contra, Crosier v. Joseph Abraham Ford Co., 150 So.2d 499 (Fla.App.3d, 1963), cert. den. 155 So.2d 693 (Fla.1963).

REVERSED.

McCORD, Acting C. J., and MILLS, J., concur.

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338 So. 2d 238, 1976 Fla. App. LEXIS 15606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quina-v-harrell-fladistctapp-1976.

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