Oct. 19, 1995.
Garry W. Miracle of
Law Offices of J.A. Setchel, Tampa, for appellant.
Jay Cohen and
Matthew D. Klein of Klein, Tannen & Cohen, P.A., Hollywood,
Cooper Hotel Services, Inc., challenges a final judgment
entered in favor of the appellee, Tobie MacFarland, in this
negligence action. Cooper Hotel contends the trial court
erred in denying its motions for directed verdict and for
judgment notwithstanding the verdict. We agree and reverse.
In May 1993,
MacFarland sued Cooper Hotel for injuries she sustained when
she slipped and fell in a bathtub while a guest at a Holiday
Inn owned by Cooper Hotel. At trial, MacFarland testified
that on the date in question, she turned on the shower in her
hotel room bathtub, stepped into it, and proceeded to wash
the front of her body. She explained that as she turned to
wash the back of her body, she fell. She described the tub on
that occasion as being "as slick as anything [she had]
ever felt." Later in the proceeding, MacFarland
introduced evidence showing that Cooper Hotel installed
smooth-bottomed bathtub units in its Holiday Inn, though its
own specifications for the hotel called for textured-bottomed
At the close of all
of the evidence, Cooper Hotel moved for a directed verdict.
That motion was denied. Thereafter, the jury returned a
verdict in the amount of $80,000, finding Cooper Hotel 50%
negligent for MacFarland's injuries. Consistent with the
jury's finding of MacFarland's 50% comparative
negligence, a final judgment in the amount of $40,000 was
entered against Cooper Hotel. Upon the denial of its motion
for judgment notwithstanding the verdict, Cooper Hotel filed
a timely notice of appeal.
Cooper Hotel now
argues that the evidence adduced at trial failed to establish
that it breached a duty of care it owed to MacFarland. For
that reason, Cooper Hotel contends MacFarland failed to prove
her case of negligence and that there was, thus, insufficient
evidence to support the jury's verdict.
In considering a
motion for directed verdict, "all inferences of fact
should be construed most strictly in favor of the nonmoving
party." Chrysler Airtemp v. Stevens, 346 So.2d
1236, 1238 (Fla. 2d DCA 1977). See also R. Bodden Coin-Op
Laundry, Inc. v. Brandychase Condominium Ass'n, 557
So.2d 663 (Fla. 2d DCA 1990). The same is true with respect
to a motion for judgment notwithstanding the verdict.
Stirling v. Sapp, 229 So.2d 850, 852 (Fla.1969); and
cases cited therein. In fact, "[t]he rules governing a
posttrial motion for judgment in accordance with a previous
motion for directed verdict are the same as a motion for
directed verdict at the close of the evidence," in that
all evidence adduced at trial must be considered. Greene
v. Flewelling, 366 So.2d 777, 779 (Fla. 2d DCA 1978).
See also McCain v. Florida Power Corp., 593 So.2d
500 (Fla.1992). "Motions for judgment notwithstanding
the verdict, like motions for directed verdict, should be
resolved with extreme caution." Stirling, 229 So.2d at
852. See also Chrysler Airtemp; Belden v. Lynch, 126
So.2d 578 (Fla. 2d DCA 1961). A "trial judge [however]
is authorized to grant such motion[s] [where] there is no
evidence or reasonable inferences to support the opposing
position." Stirling, 229 So.2d at 852. In the instant
case, there was no evidence or reasonable inferences to
support MacFarland's claim of negligence.
To sustain a cause
of action for negligence, the burden of proof is on the
plaintiff to establish that: (1) the defendant had a duty to
protect the plaintiff; (2) the defendant breached that duty;
and (3) the defendant's breach was the proximate cause of
the plaintiff's injuries and resulting damages. See
Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123
(Fla. 2d DCA 1976). To establish a breach, the plaintiff must
show that the defendant failed to maintain its property in a
reasonably safe condition, or that it failed to warn the
plaintiff of a concealed peril of which it either knew or
should have known and which could not have been discovered by
the plaintiff through the exercise of ordinary care.
Spadafora v. Carlo, 569 So.2d 1329, 1330 (Fla. 2d
DCA 1990). "Negligence [however] may not be inferred
from the mere happening of an accident alone." Belden,
126 So.2d at 581. See also East Bay Raceway v.
Parham, 497 So.2d 719, 720 (Fla. 2d DCA 1986). Where the
facts of a case are undisputed and the evidence ultimately
leads to but one conclusion, the question of negligence
becomes one of law for the trial court. Stirling, 229 So.2d
In the instant
case, the undisputed facts are that MacFarland fell and was
injured in her hotel room bathtub; that Cooper Hotel's
specifications for the construction of the hotel called for
textured-bottomed tubs; and that inquiries made by hotel
architects as to tubs that would meet specifications,
resulted in the installation of smooth-bottomed tubs. The
record shows that in response to the architects'
inquiries, the manufacturer in fact recommended the
smooth-bottomed tubs at issue, contending that the materials
out of which they were made met all non-slip and other safety
requirements, yet had the additional benefit of being easy to
clean. The manufacturer also indicated that such units were
the bathtubs of choice of several major hotel chains with the
same safety concerns as Cooper Hotel. The evidence further
showed that more than 300,000 showers had been taken without
incident in the bathtubs at the Holiday Inn involved herein;
that MacFarland, herself, had previously showered in safety
in such tubs upon an earlier stay at
the same Holiday Inn; and that the only two other reported
incidents bearing any remote connection with the bathtubs on
the same Holiday Inn premises ...