CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2001 WL 456392
...Lauri Waldman Ross of Lauri Waldman Ross, P.A., Miami, and John T. Kennedy, Stuart, for appellee. TAYLOR, J. In this appeal from judgment on a slip and fall verdict against the owners of a gas station, the issue is whether the trial court erred in instructing the jury that a violation of section 526.141, Florida Statutes (1997), is negligence per se....
...In his amended complaint, appellee alleged that Chevron knew or should have known of the unsafe gas spill and failed to clean it up or warn him of the spill. During the jury charge conference, appellee requested the following jury instruction regarding section 526.141: Florida Statute 526.141, regarding self-service gasoline stations, reads, in pertinent part, as to Subsection 2, "A self-service gasoline station shall be that portion of the property where flammable and combustible liquids used as motor vehicle fuels are stored and...
...Chevron complained that appellee first raised the issue of a statutory violation at the charging conference, and that his late introduction of this issue into the proceedings deprived Chevron of its ability to defend against allegations of a violation of the unique duty imposed by section 526.141. Chevron further argued that the jury instruction, as worded, incorrectly stated that a violation of section 526.141 is negligence per se....
...The jury found Chevron 80% negligent and appellee 20% negligent. It awarded appellee damages for medical expenses and for past and future pain and suffering. At the hearing on Chevron's motion for a new trial, the trial court again rejected Chevron's argument that the jury instruction incorrectly stated that a section 526.141 violation is negligence per se....
...icular type of injury, also constituting negligence per se; (3) violation of any other kind of statute, constituting mere prima facie evidence of negligence. Grand Union Co. v. Rocker,
454 So.2d 14, 15 (Fla. 3d DCA 1984). The statutory provisions of section
526.141 are designed to protect customers of a self-service gasoline station from spills of flammable fluids....
...dispensing of flammable and combustible fluids. The attendant is responsible for preventing persons from dispensing flammable and combustible motor fuels into unapproved portable containers and for handling accidental spills and fire extinguishers. Section 526.141 appears to fall within the third category of statutes outlined in deJesus....
...See Rocker,
454 So.2d at 15 (holding that a building code requirement that ramps not exceed a specific slope and that they have either a "non-slip" or "broomed concrete" surface is designed to protect the public in general rather than a particular class of individuals). Thus, under deJesus, a violation of section
526.141 is merely evidence of negligence, rather than negligence per se. As *1220 such, an instruction that a section
526.141 violation is negligence is erroneous....
...1st DCA 1994)(a building code requiring handrails for stairs was merely evidence of negligence); Jupiter Inlet Corp. v. Brocard,
546 So.2d 1 (Fla. 4th DCA 1988)(OSHA regulations fall into third deJesus category). Moreover, appellee did not suffer the type of injury section
526.141 was designed to prevent....
...ss he demonstrates that he suffered the type of injury the statute was designed to prevent, and that violation of the statute was the proximate cause of his injury. Walker v. Butler,
461 So.2d 249, 250 (Fla. 1st DCA 1984). The safety requirements of section
526.141 suggest that the type of injury the statute was designed to prevent is injury or damage from fire....
...must be within one hundred feet of the pumps that dispense "flammable and combustible liquids." It is undisputed that appellee was not injured by fire from the gas spill; he was injured after slipping and falling down on it. There is no language in section
526.141 that suggests a legislative purpose to protect against slip and falls. Absent such intent, appellee cannot sustain a cause of action based on violation of the statute. See e.g., Walker,
461 So.2d at 249 (section
526.141(5), which requires self-serve gas stations to provide service for handicapped individuals, does not contain language remotely suggesting a legislative purpose to protect against embarrassment, and, therefore, handicapped plaintiff tha...
...'s right to a fair trial"). During closing argument, counsel for appellee urged the jury to find Chevron negligent *1221 because there was no attendant, apart from the cashier, within 100 feet of the dispensing area to perform the duties required by section 526.141....
...endant. So when you get to the first question on this verdict form, I would respectfully submit that you should answer this question yes. Although we do not agree with appellant's position that appellee's failure to specifically plead a violation of section 526.141 precluded the court from giving any jury instructions on the statutory violation, we conclude that the late introduction of this issue into the trial proceedings, coupled with the erroneous instruction and appellee's closing argument, may have prejudiced appellant....
...Because there is a reasonable possibility that the instruction misled the jury and contributed to its verdict for appellee, we are unable to conclude that it was harmless. In sum, we find that the trial court committed reversible error by instructing the jury that a violation of the section 526.141 is negligence per se....
...On that basis I join in the majority opinion. NOTES [1] There were two attendants on duty at the time of this accident: the cashier and the store manager, who was doing paperwork in the back office. The station's maintenance and cleanup employee had not arrived for the day. [2] Section 526.141 provides in pertinent part: Self-service gasoline stations; attendants; regulations. (1) This section authorizes the establishment of self-service gasoline stations....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 17
...Based upon the foregoing facts, we are unable within the confines of well settled principles to conclude that Shop & Go was either negligent or responsible for Ferry's monstrous conduct under a claim of negligence *917 per se resulting from its failure to comply with section 526.141, Florida Statutes (1983)....
...they may be expected to happen again." Cone v. Inter County Telephone & Telegraph Co.,
40 So.2d 148, 149 (Fla. 1949). We agree with the appellant that permitting Ferry to fill his pail with gasoline, unsupervised by the Shop & Go employees, offended section
526.141, Florida Statutes (1983)....
...from that act, and it is possible that had Ferry unintentionally sloshed the gasoline while carrying the pail, causing an undesigned conflagration resulting in injuries, Shop & Go could be exposed to liability. In that circumstance, the violation of section 526.141 might warrant invocation of the negligence per se doctrine....
...The pre-violent conduct of Ferry on the night in question, including the purchase of gasoline, in fact put Shop & Go's employee, Archer, on notice of a likelihood of harm to others, and prompted her to exclaim that Ferry was "up to something." Additionally, the plaintiffs have pleaded a breach of section 526.141, Florida Statutes, in the dispensing of gasoline in an open container....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 28 U.C.C. Rep. Serv. (West) 63
...I think the court erred in granting directed verdicts on both counts. As to both theories, the trial judge was of the opinion that since the sale involved only gasoline and did not include the container, which Hurd supplied, there were no issues of fact to be resolved by a jury. Section 526.141, Florida Statutes (1975), requires that self-service gasoline stations keep an attendant on duty during all operating hours....
...(2) Goods to be merchantable must be at least such as: * * * * * * *88 (e) Are adequately contained, packaged, and labeled as the agreement may require; and * * * * * * The "agreement" pertaining to packaging of flammable materials is, I think, defined in Section 526.141 and requires that when gasoline is not pumped directly into a motor vehicle, it may only be placed in a specifically approved container; otherwise, the product may not be sold....
...The purchaser could not have obtained the gasoline unless it was placed in some type of container, and, as a result of the delivery of the goods to the plaintiff in a defective condition, a breach of an implied warranty occurred. Even in the absence of Section
526.141, I think the provisions of Section
672.314 are susceptible to the interpretation that a breach of implied warranty transpires if goods, which are the object of the sale, cannot be delivered without a container, and the seller knowingly permits the goods to be delivered in a defective container....
...aused the injury. I think that deJesus v. Seaboard Coastline Railroad,
281 So.2d 198 (Fla. 1973) is dispositive of this point. deJesus discussed three categories of statutes and the evidentiary significance of each. Appellants essentially argue that Section
526.141 is designed to protect a particular class of persons from its inability to protect itself....
...ty to take precautions to protect a particular class of persons from a particular injury or type of injury. Id. at 201. However, such violations must proximately cause the injury to the plaintiff, or the defendant will not be liable. I consider that Section 526.141 was at most intended to protect against a particular type of injury and was not intended to protect against the inability of a class of persons to protect itself....
