Bryant v. FiadiniBryant v. Fiadini
Greene & Cooper and Joan M. Bolotin, Pyszka & Kessler, Miami, for appellees.
Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
BARKDULL, Judge.
The appellants, plaintiffs in the trial court, and their four small children1 together with the wife‘s brother and mother-in-law were (on November 29, 1974) occupying a one bedroom apartment in Hialeah, Florida, located on the ground floor of a building built in 1925 and owned by the appellee Fiandini, defendant in the trial court. A diagram representing the layout of the apartment is included as footnote 2.2 The apartment had two doors, as shown in the layout; the door opposite the kitchen was locked. The mother and brother-in-law were using the living room for sleeping quarters; the plaintiffs were using the bedroom along with their four children. A portable heater3 was in operation in the
After exiting the building in approximately three or four minutes, the local fire units arrived, at which time the plaintiffs and their relatives along with one of their children, were standing about outside the building. Upon learning that the remaining children were still in the apartment, firemen attempted to rescue them. They successfully removed two children and were about to remove the last child through the window, but unfortunately by the time the child was removed he (or she) had expired due to heat and smoke inhalation.
Thereafter the plaintiffs instituted an action sounding in negligence against the defendants. The defendants filed an answer, which raised the issue of comparative negligence of the plaintiffs. At time of trial, the plaintiffs introduced into evidence the Metropolitan Fire Code and, at the time of the charge conference, they requested a charge that a violation of this Code would constitute negligence per se. At the time of the charge conference, the defendants withdrew the defense of comparative negligence and requested and received a ruling from the trial judge that no instruction on comparative negligence would be given. The jury returned a verdict for the defendants. This appeal ensued.
The points on appeal are: the trial court erred in permitting the withdrawal of the comparative negligence defense and in refusing to instruct on comparative negligence, and in refusing to instruct that a violation of the fire code constituted negligence per se. We affirm.
A defendant has a right to waive any defense. Compare: Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981); Thomas N. Carlton Estate, Inc. v. Keller, 52 So.2d 131 (Fla. 1951); Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945); 22 Fla.Jur.2d, Estoppel and Waiver, § 87;
“It appears from a consideration of the entire record, however, that the judgment should not be reversed because of the erroneous charges because the rule is well settled that where evidence in a law case discloses no liability, there can be no recovery and a verdict for the defendant in such cases must stand.”
This is particularly true in the instant case where defense counsel argued to the jury that if it returned a plaintiff‘s verdict it should award them 100% of the damages.
We find no error in refusing to charge on the fire code. First, because by its terms it is not applicable to an apartment constructed in 1925. Second, even if it was applicable, the apartment had one operable exit which was all that was required in an apartment of the size occupied
It was within the province of the jury to find that the negligence of the adults was the sole proximate cause of the injuries of the children. Groves v. Leo, 367 So.2d 1031 (Fla. 4th DCA 1979); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla. 1977); Loftin v. Wilson, 67 So.2d 185 (Fla. 1953). It was also within the province of the jury to find that the defendants were not guilty of any negligence. Groves v. Leo, supra; Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); Jones v. Atlantic Coast Line Railroad Company, supra.
Therefore, the final judgment rendered on the verdict be and the same is hereby affirmed.
Affirmed.