Michael P. BABINE, Appellant,
GILLEY'S BRONCO SHOP, INC., Appellee.
Stephen H. Echsner of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.
David A. Sapp of Bell, Hahn & Schuster, Pensacola, for appellee.
Appellant appeals the trial court's entry of final summary judgment in favor of appellee (Gilley's). We affirm.
Appellant brought suit against Gilley's and Kevin's West, Inc., a nightclub, seeking
damages for injuries he sustained when he was thrown from an "El Toro" mechanical bull owned and operated by Kevin's and manufactured by Gilley's. The mechanical bull in question was originally sold by Gilley's to another party who later sold the bull to Kevin's. The mechanical bull was manufactured for the purpose of being a training device for rodeo cowboys.
Prior to riding the bull at Kevin's, appellant signed a form releasing Kevin's from all liability for injuries that might occur from riding the bull. Kevin's placed mattresses around the bull to cushion the fall of riders, but evidence shows that the mattresses were not adequately pushed together when appellant rode the bull. Appellant was thrown off during his ride, hit his head on the floor at a place where the mattresses gapped and sustained serious injuries. The trial court earlier granted Kevin's motion for summary judgment on the basis of the release form and this Court per curiam affirmed that decision. Babine v. Kevin's West, Inc., 412 So.2d 473 (Fla. 1st DCA 1982).
The instant case involves only appellant's suit against appellee Gilley's, in which appellant sought recovery on the following grounds: (1) the mechanical bull was defective because the manufacturer did not supply adequate landing gear to the purchaser and (2) since the bull is inherently dangerous, the doctrine of strict liability should apply against Gilley's. In his order on summary judgment, the trial judge found as follows:
Based upon such record, the Court finds that there are no justiciable issues of fact to be decided by the trier of fact in that it is indisputable in the record that the "El Toro" operated as designed without defect and as such was not inherently dangerous, barring a claim under a strict liability or breach of warranty complaint.
Without latent or hidden defect, Defendant had no duty to warn of potential hazards. Regardless, Plaintiff had knowledge of the actual hazards superior to that of the Defendant who knew nothing of the "El Toro's" location or padding in use at the time of the accident. It is also indisputably evident from the facts that in mounting and riding the "El Toro" that the plaintiff assumed the risks that were open and obvious and acknowledged by him prior to the ride.
Gilley's Bronco Shop, Inc., is not responsible for the negligence of Kevin's West, Inc.
In his order granting rehearing affirming summary judgment, the trial judge elaborated further, as follows:
There is no evidence in the record of this case to show that the EL TORO'S design proximately caused Plaintiff's injury. The design required a landing pad and the defendant warned all purchasers of that requirement. Nothing has been offered showing that the recommended pad was not adequate to ensure reasonably acceptable safe operation of the EL TORO.
The EL TORO is not unreasonably dangerous because of its design as there is no competent evidence in the record to show that the product failed to perform as safely as expected when used as designed, and as intended, with the recommended pad. The manufacturer could not reasonably foresee that the product would be operated without the recommended pad.
The risk of danger does not outweigh the benefits for which the product was designed--to train rodeo performers. There is no evidence in this record to suggest that Gilley's had reason to believe this product was to be used in a bar. The only evidence in the record suggesting that the danger outweighs the utility is when the utility of the EL TORO is measured as it was used in Kevin's West's bar which is not the design purpose, nor the intended purpose, nor the known or reasonably expected use of this EL TORO. Regardless, there is nothing in the ...