Sears, Roebuck & Co. v. McKenzie, 502 So. 2d 940 (Fla. 3d DCA 1987). · Go Syfert
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Sears, Roebuck & Co. v. McKenzie, 502 So. 2d 940 (Fla. 3d DCA 1987). Cases Citing This Book View Copy Cite
37 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Dominguez v. Publix Super Markets, Inc. (fladistctapp, 2016-03-02)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 18 distinct citers.
discussed Cited as authority (rule) Dominguez v. Publix Super Markets, Inc.
Fla. Dist. Ct. App. · 2016 · confidence medium
“A directed verdict is proper only when the record conclusively shows an absence of facts .or inferences from facts to support a jury’ verdict, viewing the evidence in a light most favorable to the nonmoving party.” Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA 1987) (citations omitted).
discussed Cited as authority (rule) Beltran v. Rodriguez
Fla. Dist. Ct. App. · 2010 · confidence medium
When seeking an additional jury instruction a party must show “that the instruction was necessary for the jury to properly resolve the issues in the case.” Giordano v. Ramirez, 503 So.2d 947, 949 (Fla. 3d DCA 1987) (citing Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA 1987); Schreidell v. Shoter, 500 So.2d 228, 231 (Fla. 3d DCA 1986)).
discussed Cited as authority (rule) Medina v. Peralta
Fla. Dist. Ct. App. · 2001 · confidence medium
“A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party.” Blaustein v. Commodore Cruise Line, Ltd., 627 So.2d 131 (Fla. 3d DCA 1993) (quoting Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA 1987)).
discussed Cited as authority (rule) Gonzalez v. Rose
Fla. Dist. Ct. App. · 2000 · confidence medium
See Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995) (adopting Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA 1988)); Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA 1987); Davis v. Lewis, 331 So.2d 320 (Fla. 1st DCA 1976).
discussed Cited as authority (rule) Blaustein v. Commodore Cruise Line, Ltd.
Fla. Dist. Ct. App. · 1993 · confidence medium
“A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party.” Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987); Packer v. Winston Towers One Hundred Ass’n, Inc., 377 So.2d 46 (Fla. 3d DCA 1979).
discussed Cited as authority (rule) Szilagyi v. North Florida Hotel Corp.
Fla. Dist. Ct. App. · 1992 · confidence medium
Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (3d DCA), rev. den., 511 So.2d 299 (Fla.1987); Bohannon v. Thomas, 592 So.2d 1246, 1247-48 (Fla. 4th DCA 1992) (appellate court will not set aside jury verdict merely because an instruction that might have been proper was not given; court must conclude that jury was misled by the instructions used); McCloud v. Sherman Mobile Concrete Co., 579 So.2d 773, 774 (Fla. 5th DCA 1991) (motion for new trial is properly denied where competent substantial evidence supports verdict, and ruling should not be disturbed except on a clear showing of an abus…
discussed Cited as authority (rule) Celotex Corp. v. Colon
Fla. Dist. Ct. App. · 1991 · confidence medium
Co., Inc. v. Dupont, 455 So.2d 1026 (Fla.1984); Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981); Lassitter v. International Union of Operating Eng’rs, 349 So.2d 622 (Fla.1976); West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 92 (Fla.1976); Ashley v. Ocean Roe Motel, Inc., 518 So.2d 943 (Fla. 3d DCA 1987), review denied, 528 So.2d 1181 (Fla.1988); Giordano v. Ramirez, 503 So.2d 947 (Fla. 3d DCA 1987); Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 198…
cited Cited as authority (rule) Canales v. Compania De Vapores Realma, SA
Fla. Dist. Ct. App. · 1990 · confidence medium
Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla. 1987); L.K.; LaTorre.
discussed Cited as authority (rule) Jones v. Smith (2×)
Fla. Dist. Ct. App. · 1989 · confidence medium
The failure to give a requested instruction constitutes reversible error only when the requested instruction “contain[s] an accurate statement of the law, ... the facts in the case supported] a giving of the instructions, and ... the instructions [are] necessary for the jury to properly resolve the issues in the case.” Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987).
discussed Cited as authority (rule) LK v. Water's Edge Ass'n
Fla. Dist. Ct. App. · 1988 · confidence medium
The failure to give a requested instruction constitutes reversible error only when the requested instruction "contain[s] an accurate statement of the law, ... the facts in the case support[ed] a giving of the instructions, and ... the instructions [are] necessary for the jury to properly resolve the issues in the case." Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla. 1987).
discussed Cited as authority (rule) Forte Towers, Inc. v. Lederer
Fla. Dist. Ct. App. · 1988 · confidence medium
We find that the trial court properly refused to enter a directed verdict “since a case should never be withheld from the jury unless, as a matter of law, no proper view of the evidence could possibly sustain a verdict in favor of the nonmoving party.” Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987).
discussed Cited as authority (rule) Giordano v. Ramirez (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 1987 · confidence medium
Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 942 (Fla. 3d DCA 1987); Schreidell v. Shoter, 500 So.2d 228, 231 (Fla. 3d DCA 1986).
cited Cited "see" Tri-Pak MacHinery, Inc. v. Hartshorn
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla. 1987).
cited Cited "see" Seitlin & Co. v. Phoenix Insurance Co.
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla.1987).
cited Cited "see" Seitlin & Co. v. Phoenix Ins. Co.
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla. 1987).
discussed Cited "see, e.g." Smith Terminal Warehouse Co. v. Fraga
Fla. Dist. Ct. App. · 2001 · signal: see also · confidence medium
See also Medina v. Peralta, 802 So.2d 376 (Fla. 3d DCA 2001) (“ ‘A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party.’ ” (quoting Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA 1987))).
cited Cited "see, e.g." Woods v. Winn Dixie Stores, Inc.
Fla. Dist. Ct. App. · 1993 · signal: see, e.g. · confidence low
See, e.g., Sears Roebuck & Company v. McKenzie, 502 So.2d 940 (Fla. 3d DCA), review denied, 511 So.2d 299 (Fla. 1987).
discussed Cited "see, e.g." Jones v. Robinson
Fla. Dist. Ct. App. · 1993 · signal: see also · confidence medium
It is axiomatic that a motion for directed verdict may be granted “only if there is no evidence or reasonable inferences to support the opposing position.” Stirling v. Sapp, 229 So.2d 850, 852 (Fla.1969) (original emphasis); Yanks v. Barnett, 563 So.2d 776, 777 (Fla. 3d DCA 1990), rev. denied, 576 So.2d 295 (Fla.1991); see also Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940, 941 (Fla. 3d DCA), rev. denied, 511 So.2d 299 (Fla.1987) (directed verdict proper only where record conclusively shows absence of facts or inferences supporting jury verdict, viewing evidence in light most favorable t…
SEARS, ROEBUCK & CO., and Keller Industries, Inc., Appellants,
v.
Alexander McKENZIE, Appellee.
85-2740.
District Court of Appeal of Florida, Third District.
Jan 20, 1987.
502 So. 2d 940
Barkdull, Hendry and Hubbart.
Cited by 32 opinions  |  Published

McCune, Hiaasen, Crum, Ferris & Gardner and Reed A. Bryan, Ft. Lauderdale, for appellants.

Levine, Busch, Schnepper & Stein, Hershoff & Levy and Jay M. Levy, for appellee.

Before BARKDULL, HENDRY and HUBBART, JJ.

HENDRY, Judge.

This is an appeal from final judgments in a personal injury action awarding damages to plaintiff Alexander McKenzie and taxing costs against defendants, Sears Roebuck & Co. (Sears) and Keller Industries, Inc. (Keller). We affirm based upon the following analysis.

Briefly stated, the facts are as follows. On October 16, 1982, McKenzie was painting a downspout on the premises of his employer, Anthony Leung, using a ladder[*941] that had been manufactured by Keller and sold by Sears to Mr. Leung. McKenzie sustained injuries when a rail of the ladder broke and he fell to the pavement. He sued both Sears and Keller for negligence and strict liability; a breach of warranty count was abandoned at trial.

McKenzie's action was predicated upon the theory that the right front side rail of the ladder was cracked when the ladder passed from the defendants' control. Sears and Keller denied this allegation and argued that McKenzie's injuries resulted from his own negligence in misusing the ladder[1] or in failing to inspect for or discover the crack in the rail.

At the conclusion of the trial, the jury returned a verdict in favor of McKenzie in the amount of $485,000.00, reduced by 15% due to his negligence. After final judgment was entered upon the verdict, defendants moved for entry of judgment in accordance with motions for a directed verdict made at trial, or in the alternative, for a new trial. These motions were denied and this appeal followed.

The defendants raise two points on appeal. First, they contend that the trial court erred in refusing to direct a verdict where there was a lack of substantial competent evidence to support the plaintiff's theory that the crack in the ladder was preexisting at the time of the accident.

A directed verdict is proper only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict, viewing the evidence in a light most favorable to the nonmoving party. Holmes v. Don Mealey Chevrolet, Inc., 468 So.2d 552 (Fla. 5th DCA 1985); Guy v. Kight, 431 So.2d 653 (Fla. 5th DCA 1983).

In the instant case, there was some evidence presented by the plaintiff to support the jury verdict on theories of strict liability and negligence, which, if believed by the jury, could sustain the verdict. See Hercules, Inc. v. Coto, 434 So.2d 4 (Fla. 3d DCA 1983) (in products liability suit brought by minor who was injured when a blasting cap which he found exploded, evidence sustained jury's verdict for plaintiff on theories of product liability and negligence).

According to the testimony of plaintiff's expert at trial, there was circumstantial evidence to support the inference that the crack existed prior to the accident:

We have circumstantial evidence, counsel, and sometimes engineers have to rely on circumstantial evidence. That crack that is there, that crack did not open up at the time of the final failure. The crack is still closed. I think we can reasonably conclude that there is a good chance that the crack was there before the failure occurred. Otherwise, the ladder would not have failed.

Moreover, the conclusion reached by plaintiff's expert was based upon all of the evidence presented: his investigation, his tests and plaintiff's testimony as to how the accident occurred.

Thus, the trial court properly refused to enter a directed verdict since a case should never be withheld from the jury unless, as a matter of law, no proper view of the evidence could possibly sustain a verdict in favor of the nonmoving party. Sun Life Insurance Co. v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976); see Brookbank v. Mathieu, 152 So.2d 526 (Fla. 3d DCA) (caution is especially called for in negligence cases, the function of the jury to weigh and evaluate the evidence being particularly important since reasonable persons often draw varied conclusions from the same evidence), cert. denied, 157 So.2d 817 (Fla. 1963).

Defendants' second point on appeal alleges that the trial court erred in denying their requested jury instruction defining "misuse" and in instructing the jury[*942] on the legal significance of "misuse" as a defense.[2]

The court refused to give the instruction since it was not a standard instruction, but rather was language taken from a case,[3] and was objected to by McKenzie. Instead, the court instructed the jury:

The second issue for your determination is whether Alexander McKenzie misused the ladder, and if so, whether such misuse was a legal cause of the injury or damage complained of.

The court further denied defendants the use of a special interrogatory verdict form in which the misuse definition was included, adopting instead plaintiff's verdict form which covered only contributory negligence. Question three, the sole question on the verdict form which related to plaintiff's fault, read:

Was Alexander McKenzie negligent in the use of the ladder, and if so, was such negligence a legal cause of his injury or damage.

Defendants contend that in the wording of this question, plaintiff's misuse of the ladder was combined with any other negligence on his part, and this question was therefore overly broad, inaccurate, and misleading. They argue that plaintiff's misuse should have been contained in a separate question, independent of any inquiry as to his contributory negligence, because plaintiff's misuse would be a complete defense, whereas his contributory negligence would merely have been set off against defendants' alleged negligence.

In order to demonstrate reversible error, defendants must establish that the requested instructions contained an accurate statement of the law, that the facts in the case supported a giving of the instructions, and that the instructions were necessary for the jury to properly resolve the issues in the case. Davis v. Charter Mortgage Co., 385 So.2d 1173, 1174 (Fla. 4th DCA 1980) (citing Davis v. Lewis, 331 So.2d 320 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla. 1977)). The standard for reviewing the failure to give a jury instruction is "whether ... there was a reasonable possibility that the jury could have been misled by the failure to give the instruction." Tilley v. Broward Hospital District, 458 So.2d 817, 818 (Fla. 4th DCA 1984). Moreover, reversal will not be granted where the subject of the instruction is covered in other charges given by the court or where failure to give the instruction is not shown to be prejudicial. Llompart v. Lavecchia, 374 So.2d 77, 80 (Fla. 3d DCA 1979).

Applying the above principles of law to the facts before us, we conclude that the jury was properly instructed on the "misuse" defense. The trial court's refusal to include defendants' requested jury instructions was not prejudicial to the outcome of the case, and thus, was not reversible error.

For the foregoing reasons and based upon the authorities cited, the final judgment and judgment taxing costs against the defendants are affirmed.

Affirmed.

HUBBART, J., concurs.

BARKDULL, Judge, dissenting.

I respectfully dissent. As I understand the record in this case, the plaintiff's complaint was that the ladder in question was defective at the time it was sold by Sears. I find no competent evidence that such was the case. The plaintiff's expert, whose testimony is quoted in the majority, bases his opinion upon mere conjecture or guess. A physical examination[1] of the ladder to this[*943] layman's eyes,[2] shows no evidence of defect or split in the wood in the siderail, which would have been in existence prior to the accident in question. There is no discoloration at the break or other evidence of a patent defect in the wood. With no competent evidence disclosing a defect at the time of the sale, it was error not to direct a verdict for the defendant; to hold otherwise is to make Sears an insurer.

1 Defendants argue that one explanation for the accident was that McKenzie misused the ladder by standing on the fifth step or paint shelf and his weight caused the rail to crack, causing him to fall to the pavement.
2 Defendants' requested jury instruction number 10 stated that:

MISUSE of a product consists of using the product in a manner not intended, knowing of the danger of such misuse. A knowing misuse relieves the manufacturer and seller of liability for any injuries caused by the accident.

3 Clark v. Boeing Co., 395 So.2d 1226, 1229 (Fla. 3d DCA 1981).
1 The ladder has been made available for examination by the court.
2 There is no need to resort to expert testimony when a condition is readily assertable by a layman. See Buchman v. Seaboard Coast Line R.R. Co., 381 So.2d 229, 230 (Fla. 1980); Florida Power Corp. v. Barron, 481 So.2d 1309, 1310 (Fla. 4th DCA 1986); Seaboard Coast Line R.R. Co. v. Kubalski, 323 So.2d 32, 33 (Fla. 4th DCA 1975); Millar v. Tropical Gables, Corp., 99 So.2d 589, 590 (Fla. 3d DCA 1958); Lugo v. Florida East Coast Ry. Co., 487 So.2d 321, 325 (Fla. 3d DCA 1986) (Barkdull, J., dissenting).