Notwithstanding strahans own inability to reach a

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: missile [**3] that allegedly struck Gauldin. Notwithstanding Strahan's own inability to reach a conclusion as to the cause of the accident, the Strahans argue that Gauldin's testimony in a discovery deposition constituted direct evidence of negligence that should have prevented the trial court from instructing the jury on res ipsa loquitur. At trial, Gauldin testified that his back was to Strahan's loading activity and that he was facing the opposite direction when he was struck. In an earlier deposition, however, Gauldin testified, "No, I saw what happened, he slipped up in the back of the greasy truck, fell down and that is what shoved the juke box out." He also testified that because he did not appreciate the extent of his injuries, he did not inspect the truck bed at the time of the accident. We do not believe that Gauldin's speculation that the accident occurred through Strahan's negligence rendered the res ipsa loquitur instruction improper in this case. Basic common sense tells us that juke boxes do not normally fly out of stationary pickup trucks absent some negligence on the part of the one in control or an intervening act of God. Justice Wells set forth the status of res [**4] ipsa loquitur in Florida jurisprudence in McDougald v. Perry, 716 So. 2d 783 (Fla. 1998). n1 McDougald suffered injuries when a 130 pound spare tire came out of its cradle as Perry drove his tractor trailer over railroad tracks. The opinion recognizes that some actions do not require experts to tell a jury that events do not usually occur in the absence of negligence. The court reached the inclusion that the spare tire escaping from the cradle and crashing into McDougald "is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire." 716 So. 2d 783, 786. We likewise conclude that a juke 8 box falling from the bed of the pickup truck during the process of loading, and causing injury to a nearby pedestrian, is not the type of accident which, on the basis of common experience and as a matter of general knowledg...
View Full Document

This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.

Ask a homework question - tutors are online