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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...
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- Spring '08