Small v. Tomasello, Inc.

District Court of Appeal of Florida

Small v. Tomasello, Inc.

356 So. 2d 869, 1978 Fla. App. LEXIS 15209

CourtDistrict Court of Appeal of Florida

DecidedMarch 21, 1978

DocketNo. 76-1276

StatusPublished

This text of 356 So. 2d 869 (Small v. Tomasello, Inc.) 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

Small v. Tomasello, Inc., 356 So. 2d 869, 1978 Fla. App. LEXIS 15209 (Fla. Ct. App. 1978).

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Opinion

SCHWARTZ, ALAN R., Associate Judge.

The appellants-homeowners’ terrazzo floor was allegedly cracked and damaged immediately upon the appellee-exterminator’s activity in drilling holes to inject poison in a concrete slab adjacent to the home. The only significant point on this appeal from a judgment entered after a jury verdict for the exterminator challenges the trial judge’s refusal to give the standard jury instruction, 4.6, on res ipsa loquitur. We have determined that the charge was properly declined and therefore affirm the judgment below on the basis of our conclusion that the circumstances of the incident in question do not reflect that “the occasion would not [in the ordinary course of events] have occurred in the absence of negligence, “Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221, 1223 (Fla. 4th DCA 1976), and that the res ipsa doctrine is therefore inapplicable. Cf. Stanolind Oil & Gas Co. v. Lambert, 222 S.W.2d 125, 126 (Tex.Civ.App.1949); V. N. Green & Co. v. Thomas, 205 Va. 903, 140 S.E.2d 635 (1965); Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969).

Affirmed.

ANSTEAD and MOORE, JJ., concur.

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SCHWARTZ, ALAN R., Associate Judge.

The appellants-homeowners’ terrazzo floor was allegedly cracked and damaged immediately upon the appellee-exterminator’s activity in drilling holes to inject poison in a concrete slab adjacent to the home. The only significant point on this appeal from a judgment entered after a jury verdict for the exterminator challenges the trial judge’s refusal to give the standard jury instruction, 4.6, on res ipsa loquitur. We have determined that the charge was properly declined and therefore affirm the judgment below on the basis of our conclusion that the circumstances of the incident in question do not reflect that “the occasion would not [in the ordinary course of events] have occurred in the absence of negligence, “Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 336 So.2d 1221, 1223 (Fla. 4th DCA 1976), and that the res ipsa doctrine is therefore inapplicable. Cf. Stanolind Oil & Gas Co. v. Lambert, 222 S.W.2d 125, 126 (Tex.Civ.App.1949); V. N. Green & Co. v. Thomas, 205 Va. 903, 140 S.E.2d 635 (1965); Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969).

Affirmed.

ANSTEAD and MOORE, JJ., concur.

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356 So. 2d 869, 1978 Fla. App. LEXIS 15209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-tomasello-inc-fladistctapp-1978.

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