author: THOMPSON, Judge.

text:
    COLONIAL INN and Old Republic Insurance Co., Appellants, v. Alfred DeGUIDO and Division of Workers’ Compensation, Appellees.
    No. BA-37.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1984.
    John F. McMath, Miami, for appellants.
    Stuart F. Suskin of Abrams, Suskin & Berglund, North Miami Beach, and Michael J. Rudicell, Division of Workers’ Compensation, Tallahassee, for appellees.
   THOMPSON, Judge.

The principal issue in this appeal is whether the deputy commissioner (deputy) properly calculated the amount of wage-loss benefits awarded claimant, DeGuido, for the months of July and August 1983. We reverse and remand.

DeGuido was injured in a compensable accident in July 1980. At the time in question, July and August 1983, the claimant was 63 years old and was receiving social security benefits.

The award of benefits is not contested and both parties agree that § 440.15(3)(b), Fla. Stat. (1980) sets forth the manner of calculating the amount of the wage-loss benefits payable. They disagree, however, on the impact that the social security benefits received by DeGuido should have on the calculations. The employer/carrier (E/C), and the Division of Workers’ Compensation urge that the proper calculation of the amount of benefits payable, as determined by § 440.15(3)(b)l, is subject to the 66% percent limitation therein, as well as to the social security offset of § 440.15(3)(b)4.

The monthly wage-loss benefit amount, calculated pursuant to § 440.-15(3)(b)l “shall not exceed an amount equal to 66⅜ percent of the employee’s average monthly wage at the time of injury.” The wage-loss benefit amount is then subject to further possible reduction pursuant to § 440.15(3)(b)4 which provides:

When the injured employee reaches age 62, wage-loss benefits shall be reduced by the total amount of social security retirement benefits which the employee is receiving, not to exceed 50 percent of the employee’s wage-loss benefits.

In other words, the wage-loss benefit amount as initially determined pursuant to the statute is reduced (if necessary) so that it is equal to 66⅜ percent of the claimant’s average monthly wage. Then, if the employee is receiving social security benefits, this wage-loss benefit amount is further reduced, or offset, by the amount of the social security benefits received, except that the amount of the offset cannot exceed 50 percent of the employee’s wage-loss benefits under § 440.15(3)(b)l.

Claimant argues that the 66⅜ percent limitation of § 440.15(3)(b)l is not applicable in situations where the employee is receiving social security benefits so that § 440.15(3)(b)4 is brought into play. Claimant’s interpretation of the application of the statute is unprecedented, but it was accepted by the deputy.

There is nothing contained in the statute which states or implies that the 66% percent limitation of § 440.15(3)(b)l and the 50 percent social security offset of § 440.15(3)(b)4 are mutually exclusive. A claimant’s wage-loss benefit amount is subject to the 66% percent limitation of § 440.-15(3)(b)l and is also further subject to the social security offset of § 440.15(3)(b)4 if the claimant is receiving social security benefits. This issue is reversed and remanded to the deputy so that the amount of wage-loss benefits may be calculated and awarded in a manner consistent with this opinion.

The deputy awarded an attorney’s fee based more on the time spent by claimant’s attorney than the benefits obtained. A substantial portion of the time spent involved the question of the proper calculation of claimant’s wage-loss benefit. In view of the reversal of the deputy’s order on this issue, the attorney’s fee awarded is reversed and this cause is remanded for determination of an attorney’s fee without consideration of the time spent on calculation of wage-loss benefits.

REVERSED and REMANDED.

ERVIN, C.J., and BOOTH, J., concur.


source: Caselaw Access Project

author: SHIVERS, Judge. NIMMONS, Judge,

license: Public Domain

text:
    Alex Washington WIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. AV-476.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.

      Michael E. Allen, Public Defender; Carl S.McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee; Barbara Ann Butler, Jacksonville, for appellee.
   SHIVERS, Judge.

Appellant Wiggins seeks review of his conviction on charges of conspiracy to traffic in cannabis and trafficking in cannabis. Finding no merit in the allegations of error raised by the appellant, we affirm the judgment and sentences below.

Wiggins was caught in a “reverse sting” operation in which he and his alleged co-conspirators acted as intermediaries between marijuana “smugglers,” who were in fact undercover law enforcement agents, and potential buyers. In return the co-conspirator “brokers” were to receive a commission on any marijuana sales. The undercover agents testified at trial that Wiggins and his alleged co-conspirators contacted groups of interested customers in Florida and other states and caused them to travel to Jacksonville with the intention of purchasing portions of the “smugglers’ ” merchandise. The testimony also revealed that in anticipation of arranging sales the co-conspirators conducted negotiations with the buyers and the undercover agents in numerous meetings and telephone conversations. On two occasions the agents provided sample bales of cannabis for inspection by prospective buyers. One such sample was actually sold with the proceeds of the sale divided between the undercover agents and the co-conspirators as per the commission arrangement. Three planned deliveries of large quantities of cannabis were eventually carried out, at which time Wiggins and the other co-conspirators were arrested. At no time did Wiggins or any of his co-conspirators have possession of the marijuana or knowledge of its storage location. At trial the prosecution relied solely upon delivery as the basis of their alleged involvement in trafficking activity, abandoning all allegations of possession of cannabis.

On appeal, Wiggins asserts that the trial court erred in failing to grant his motion for judgment of acquittal on the charge of conspiracy to traffic in cannabis where the evidence did not establish the elements of the offense as to appellant in that, (1) appellant was merely a broker, and (2) an essential element of the crime was performed by law enforcement agents.

The criminal liability of persons acting as drug “brokers” charged with conspiracy to traffic has been addressed recently in two cases, Orantes v. State, 452 So.2d 68 (Fla. 1st DCA 1984), and Harris v. State, 450 So.2d 512 (Fla. 4th DCA 1984). The Harris court agreed with the instant trial judge’s instructions that all those who intentionally entered into an agreement with others to cause trafficking to be committed, either by them or one of them, or by some other person, may be guilty of conspiracy to traffic and concluded that “a person who successfully brokers an illegal drug transaction by actively procuring the purchasers to the transaction would appear to be subject to prosecution as one who has agreed with others ‘to cause trafficking to be committed.’ ” Id. at 514. In Orantes, this court rejected the appellant’s contention that his role as drug broker made him a mere go-between in a transaction involving others. 452 So.2d at 70-71.

In the instant case, the State adduced evidence from which a jury could reasonably find that Wiggins was actively involved in meetings and phone conversations aiding the negotiations; that he was responsible for the introduction of potential buyers into the scheme, and that he was to receive a commission for his services and did, in fact, receive a commission from the sale of a sample bale. Drawing every inference in favor of the State, the record is sufficient to support a finding that Wiggins intentionally entered into an agreement with his fellow brokers to cause trafficking to be committed. The trial court, therefore, properly denied the motion for judgment of acquittal on this point.

The appellant further argues that judgment of acquittal was mandated by the involvement of law enforcement officers in the trafficking scheme, in reliance upon the Florida Supreme Court’s ruling in King v. State that:

where two or more persons conspire with another who is, unknown to them, a government agent acting in the line of duty, to commit an offense under an agreement and an intention that an essential ingredient of the offense is to be performed by, and only by, such government agent, such persons may not legally be convicted of a conspiracy, (emphasis supplied) 104 So.2d 730, 733 (Fla. 1958).

See also State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981); State v. Cristodero, 426 So.2d 977 (Fla. 4th DCA 1982); Priest v. State, 450 So.2d 318 (Fla. 1st DCA 1984); State v. Bass, 451 So.2d 986 (Fla. 2d DCA 1984).

In the instant case, the substantive offense charged was trafficking in cannabis by delivery. Delivery is defined as the actual, constructive, or attempted transfer from one person to another of a controlled substance. § 893.02(4), Florida Statutes. The appellant contends that the undercover agents in supplying the cannabis, maintaining it at a location unknown to the appellant and actually executing the physical transfer performed an essential element necessary to such delivery. We find, however, that although the agents made the actual physical transfer the State’s evidence could still reasonably warrant a finding of constructive delivery so as to support the conspiracy charge. The evidence permitted a finding that the co-conspirators did agree among themselves to cause the deliveries to occur and that the deliveries did in fact occur by virtue of the activities of the “brokers” undertaken in furtherance of this agreement. Under the circumstances presented there was no error in denial of the motion for judgment of acquittal.

The final issue raised by Wiggins is whether the trial court erred in permitting the introduction of hearsay statements of his alleged co-conspirators as evidence on the charged trafficking offenses. A hearsay statement of a defendant’s alleged co-conspirators is admissible against the defendant if the statement was made during the pendency of the conspiracy and in furtherance thereof, provided that there is evidence of the conspiracy independent of the hearsay testimony. The requirement of independent evidence is a condition of admissibility. Boyd v. State, 389 So.2d 642, 644 (Fla. 2d DCA 1980). Accord Briklod v. State, 365 So.2d 1023 (Fla. 1978); Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA 1981). This principle was adopted in the Florida Evidence Code at § 90.803(18), Florida Statutes (1979). Review of the record in the instant case confirms that independent evidence of the existence of the conspiracy was adduced at trial, thereby establishing a predicate for the admission of hearsay statements.

Finding no merit in the appellant’s contentions of error, we affirm the judgment and sentences rendered below.

WENTWORTH, J., concurs.

NIMMONS, J., specially concurs.

NIMMONS, Judge,

specially concurring.

I write only to clarify my view regarding the applicability of the King rule to the conspiracy charge.

In order to determine the applicability of the King rule, one looks to the crime conspired to be committed, in this instance delivery of cannabis. It is then necessary to determine whether the defendant/conspirators could have performed the elements of a delivery or whether, instead, the undercover officers were the only ones who could effectuate delivery. Although only one person, in this instance a law enforcement officer, might effect the actual physical delivery, others who neither saw nor touched the drugs might still be convicted of the delivery as principals. See State v. Dent, 322 So.2d 543 (Fla. 1975); Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978); Stephenson v. State, 371 So.2d 554 (Fla. 2nd DCA 1979). I believe that the Florida Supreme Court’s decision in King was not intended to reach the type situation which we have in the case at bar.


author: ERVIN, Chief Judge.

text:
    CELTICS MOBILE HOME MANUFACTURING and CNA Insurance Company, Appellants, v. Michael BUTLER, Appellee.
    No. AX-105.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.

      Richard R. Crooke of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Richard I. Cervelli, Naples, for appellee.
   ERVIN, Chief Judge.

The employer/carrier (E/C) seeks review of a workers’ compensation order awarding the claimant attorney’s fees pursuant to the bad faith sanctions of Section 440.-34(2)(b), Florida Statutes. The deputy commissioner (DC) attributed the finding of bad faith to delinquency in the payments of total temporary disability (TTD) compensation to the claimant, and failure of the E/C to render proper medical care expeditiously. We conclude that the DC erred in finding bad faith as a basis for the award, and therefore reverse.

Claimant suffered a compensable knee injury in 1980, for which the E/C paid TTD and medical benefits. Claimant’s initial TTD payment was delayed two to three months and subsequent payments were invariably several weeks delinquent. On March 8, 1981, claimant was released to work, having attained maximum medical improvement (MMI). He was not rehired by the employer, although he held two other jobs from August 1980 through February 1981, and from March 1981 until February 1982. Both jobs were terminated by the employers due to his disability. He was unable to hold a job and suffered continued problems with his knee. In February 1982, claimant’s family physician recommended that claimant undergo an arthroscopic examination, and in March claimant, without previously contacting the E/C, first retained an attorney to assist him in securing benefits and the recommended treatment. On March 8, 1982, the attorney sent a letter to the E/C, requesting an arthroscopic examination, and on March 24, 1982 requested a reinstatement of TTD benefits as of March 1, 1982. The E/C authorized an independent examination of claimant’s knee on April 6, 1982, although it did not then grant an arthroscopic examination. It also reinstated TTD payments, effective as of March 15, 1982. In April 1982, claimant was evaluated by an orthopedic specialist, who confirmed MMI and recommended no further treatment. Based upon this opinion, the E/C terminated TTD as of May 30, 1982.

Claims were subsequently filed in June and November of 1982 for TTD benefits from March 1, 1982 through March 15, 1982, wage-loss benefits for the months of July through October and December of 1982, the payment of unauthorized medical expenses, vocational rehabilitation, transportation, costs, penalties and attorney’s fees. Subsequently, at a pre-trial conference in August 1982, the DC observed the claimant’s knee to be swollen and suggested that the E/C authorize another examination. This exam, performed in September 1982, also failed to result in a recommendation of the arthroscopic procedure. Finally, in January 1983, an orthopedist did recommend that the procedure be performed. The examination was then timely authorized by the E/C but delayed in performance due to problems not associated with the E/C. When the procedure was finally conducted, it revealed a need for surgical repairs to the interior of the knee. Based upon this evidence, the DC entered an order awarding claimant TPD benefits from June 1 through July 31, 1982; TTD benefits beginning after his unemployment benefits ceased and continuing until claimant reaches MMI, and medical expenses, previously incurred and continuing as the nature of his injury requires. This order was not appealed. A later order was entered, awarding attorney fees on a bad faith theory due to the E/C’s delay in paying TTD benefits and in authorizing an additional orthopedist’s evaluation of claimant’s knee during the summer of 1982.

In interpreting the bad faith attorney’s fees sanctions of Chapter 440, Florida Statutes, we have rejected limitation of the remedy’s application to instances of active concealment, misrepresentation, or continued course of dishonest dealings by the E/C, holding instead that it also applies where there has been a delay or denial of benefits without a showing of active effort and initiative by the E/C to determine fairly and expeditiously its obligation to place benefits in the hands of the injured worker. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). See also Exceptional Children’s Home and Nursery, Inc. v. Fortuna, 414 So.2d 1130 (Fla. 1st DCA 1982); Brevard County Mental Health Center v. Adams, 431 So.2d 167 (Fla. 1st DCA 1982). As to the delay in authorizing an additional orthopedist’s evaluation as a basis for the award of fees in the instant case, we observe that the E/C promptly provided for examination by appropriate specialists when evidence of claimant’s possible entitlement to additional benefits was presented. The E/C’s reliance on the opinion of orthopedic specialists was certainly reasonable, and the arthroscopic procedure was authorized immediately upon receipt of an orthopedic specialist’s recommendation of that procedure. In so doing, the E/C met its burden of investigation for the purpose of fairly and expeditiously determining its obligation to provide claimant with the requested medical benefits. Under the circumstances presented here, there was no bad faith in the E/C’s reliance upon the opinions of appropriate medical specialists, and it was neither required to accept the conflicting opinion of a non-specialist nor, as the DC suggests, to provide a field adjuster to observe the claimant’s condition.

The DC’s award of fees was also predicated upon a finding of bad faith in the delayed initiation and subsequent continual delinquency of TTD benefits in 1982. After discovering insufficient evidence in the record on appeal, we ordered the DC to supplement the record with support for his finding. The DC responded by providing a transcript of claimant’s testimony at the first merit hearing. We have reviewed that testimony and find no competent, substantial evidence to support a finding that the delinquency occurred in 1982. Instead, claimant’s testimony reveals that the carrier delayed the first several TTD payments due in 1980. Such action by an E/C may well constitute bad faith under proper circumstances. Here, however, the bad faith actions related to a TTD claim which had been settled and for which all associated benefits had been paid prior to the intervention of claimant’s attorney, and were not a contributing factor to the need for such intervention. The E/C’s earlier bad faith cannot now form a basis for an award of fees for the successful prosecution of an unrelated claim. Cf. McDonalds Corp. v. Doty, 431 So.2d 291 (Fla. 1st DCA 1983).

The record before us lacks competent, substantial evidence of any bad faith in relation to the claim adjudicated by the DC. A finding to the contrary constitutes a departure from the essential requirements of the law and a clear abuse of the discretion vested in the DC. See Acevedo v. Ampco Products Company, 407 So.2d 376 (Fla. 1st DCA 1981).

REVERSED.

JOANOS and NIMMONS, JJ„ concur.

      . Following this order, the recommended surgery was performed and claimant was released on June 27, 1983, with a 10% permanent impairment of his right lower extremity.


text:
    Kevin Michael John MILLETT, Appellant, v. STATE of Florida, Appellee.
    No. AX-377.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.

      Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Appellant Millett appeals from his conviction and sentence of four years for child abuse, urging that the trial court erred for the following reasons: (1) in denying appellant’s right to a fair trial by commenting to the jury on his credibility as a witness; (2) in failing to apprise appellant that in exchange for a guideline sentence he had relinquished his protection against ex post facto laws; and (3) in deviating from the recommended guideline sentence without stating in writing clear and convincing reasons justifying the deviation. We affirm as to the first two issues raised and reverse the last.

At the time of the offense, appellant was living with his girlfriend, then separated from her husband, and the girlfriend’s 17-month old daughter, the victim. The morning of September 6, 1982, the mother left appellant and her daughter at her house, for the purpose of seeking a job. Appellant testified at trial that while the mother was gone, the infant began spitting up bananas, and after unsuccessfully telling the infant to stop, he “smacked” the child off the cushions and onto a dresser. The infant suffered a near mortal head injury and possible permanent physical injuries following the incident.

During cross-examination of appellant, the state sought to pinpoint the time of the offense. The following then transpired:

Q. She had a bottle, and she had a banana.
A. Earlier, she had had a bottle, and we had just got done eating lunch. I can’t remember what we had for lunch.
Q. What time of the morning was it?
A. What time that we are (sic) or—
Q. What time of the morning was it when she was eating the bananas or eating the piece of banana?
A. I guess 12:00 o’clock. I’m not really sure about the time.
Q. What time of the morning was it when you had breakfast?
A. About 10:30 or 11:00 o’clock.
Q. All right, sir. You gave her a piece of banana, and what else did you give her for lunch?
A. I can’t remember what we had — We had just eaten breakfast.
Q. Now, you are confusing, which is it, had you just eaten lunch—
MR. TERRELL: Objection, it’s argumentative.
THE COURT: Well, I think the witness has given double statements. So, ask him again to clarify it.

(e.s.) Shortly thereafter, counsel for the state sought to clarify the location of the parties prior to the offense. The following then occurred:

Q. All right. And I take it she was in her room at the time?
A. Right.
Q. And where were you at the time?
A. In the bedroom.
Q. You were in your bedroom or her bedroom?
A. In her bedroom. I went in there. She has a tendency—
MR. TERRELL: Objection to the question. It is unclear as to what time he’s talking about.
THE COURT: Well, I don’t think it’s from anything the prosecutor is doing. I think it’s the response of the witness, and I don’t know how you cure that. That’s your client.
MR. TERRELL: I request the prosecutor ask and specify where he’s referring to.
THE COURT: I think he has. He’s trying to get him to specify. It’s Cross Examination, and I’m overruling your objection.

(e.s.) Thereafter, counsel for the state sought to pinpoint the severity and the intent with which appellant had struck the child by asking appellant to demonstrate the striking. The following then transpired:

Q. All right. You indicated that you got upset, and you smacked her, and you were aggravated. And on your Direct testimony you said, “I guess I smacked harder than that.” Demonstrate to the Jury just how hard you struck her?
A. I don’t even remember how hard I did hit her. I just struck out.
Q. Go ahead. You just struck out in anger?
A. Struck out, but not to do — to do any kind of harm like this to her—
Q. That’s not my question.
MR. TERRELL: I object. Let the witness answer the question.
THE COURT: He was not answering the question. He was interjecting an unresponsive answer.

(e.s.) On re-cross, the judge sustained as argumentative a defense objection to a prosecution question which implied that appellant was unconcerned by what he had done to the victim. Thereafter, appellant testified that he had been in the victim’s bedroom a “couple of minutes” before striking her and the following exchange ensued:

A. A couple of minutes.
Q. And you gave her two minutes to stop spitting out the banana before you smacked her up against the dresser drawers?
A. I was picking up—
Q. That you gave her two minutes—
MR. TERRELL: Let the witness answer the question.
MR. WILLIAMS: Your Honor, he was unresponsive.
MR. TERRELL: He was trying to tell us what he was doing during the time—
THE COURT: That’s right, that was not responsive to the question, still, Mr. Terrell.

(e.s.)

Following a lunch recess, the defense moved for a mistrial on the ground that the judge, during the four above quoted exchanges, had “commented” upon appellant’s “credibility” before the jury. Appellant did not move for a curative instruction. Appellant’s counsel stated:

With all due respect to the Court, I need to make an objection. Move for a mistrial as to the Court’s comments during my client’s testimony relating — on the weight of that — believability of that evidence.
THE COURT: What comments are we talking about?
MR. TERRELL: The Court’s comments relating to his responsiveness to the prosecutor’s questions, and—
THE COURT: I think the Court has the perfect right to delineate in the record the nature of the problem, and the Court commented only on what your client was doing, that he was not being responsive to the question, and that does not give you grounds for a mistrial. That’s what Courts are for.
MR. TERRELL: Your Honor, I have noted my objection. I was, in fact, myself confused by the questions being asked. THE COURT: I can’t help it if you are confused. That doesn’t mean I have to be confused with you. We don’t run in the same track. I can’t help that.

Appellant argues that the trial judge violated Section 90.106, Florida Statutes, providing: “A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” In Ehrhardt, Florida Evidence § 106.1, p. 22, it is stated:

During a jury trial, the judge occupies a dominant position. Any remarks and comments that the judge makes are listened to closely by the jury and are given great weight. Because of the credibility that the comments are given and because they would likely overshadow the testimony of the witnesses themselves and of counsel, Section 90.106 recognizes that a judge is prohibited from commenting on the weight of the evidence, or the credibility of the witness, and from summing up the evidence to the jury. If such comment and summing up were permitted, impartiality of the trial would be destroyed.

(footnotes omitted)

During cross-examination of appellant, the judge’s comments “could have been interpreted by a jury as a comment on appellant’s veracity and therefore influenced their deliberations.” Gordon v. State, 449 So.2d 1302, 1304 (Fla. 4th DCA 1984). We agree that the trial judge, during the four aforementioned exchanges, “commented” on appellant’s credibility before the jury. The only remaining question is whether the motion for mistrial should have been granted.

Appellee relying on Ferguson v. State, 417 So.2d 639 (Fla.1982), responds that an appellant who fails to accompany his unsuccessful motion for a mistrial with a motion for a curative instruction is not entitled to a reversal of his conviction. Here, following a lunch recess, counsel first moved for a mistrial as to the court’s comments earlier made during appellant’s testimony. The judge overruled the objection and did not grant the mistrial. Appellant, however, never moved for a curative instruction. As the Florida Supreme Court has observed in Ferguson v. State, “[Ejven if the comment is objectionable on some obvious ground, the proper procedure is to request an instruction from the court that the jury disregard the remarks.” Id. at 641 (e.s.). Appellee urges that appellant’s failure to request such an instruction should prevent a reversal of his conviction.

Although the proper procedure normally would have been for appellant’s counsel to move for a curative instruction, we do not regard his failure to do so, under the circumstances presented, as now barring his right to urge the point as error. The ordinary situation in which the rule requiring a motion for curative instructions occurs when the prosecutor — not the trial judge — makes the offending comments. In the case at bar the court on four occasions made statements in the presence of the jury relating to the responsiveness of defendant’s answers, which may have caused the jury to question his credibility. Once the trial judge overruled appellant’s objection to the “comments”, and later the motion for mistrial, we consider that it would have been a futile gesture for counsel to request a curative instruction, because the trial judge clearly believed he had acted properly. The Third District Court of Appeal, referring to a prosecutor’s improper comments, states that “the proper procedure to follow where improper remarks are made that are not by their very existence of such an inflammatory nature as to deny a fair trial is to object and to move for corrective instructions.” (e.s.) Mabery v. State, 303 So.2d 369, 370 (Fla. 3d DCA 1974); see also Williams v. State, 443 So.2d 1053 (Fla. 1st DCA 1984). In our view, the very existence of the judge’s comments were of such character that they might potentially have affected the defendant’s right to a fair trial, so that the motion for a corrective instruction would simply have been superfluous. Appellant’s objection was made “sufficiently specific to apprise the trial court of the potential error,” and it was not incumbent upon him to move for a corrective instruction under such circumstances. Perdomo v. State, 439 So.2d 314, 315 (Fla. 3d DCA 1983).

It remains to be seen, however, whether the error, given the facts of the case, can be deemed harmless. In our view it was. The offense charged, i.e., aggravated child abuse in violation of Section 827.-03, Florida Statutes, was clearly established by the evidence. Appellant never denied striking the child. Indeed, there was no other cause offered for the victim’s near-fatal injuries. The attending physician testified that the nature of the injury sustained would have required force above and beyond that which would have occurred accidentally by falling from a bed or chair, or while playing and striking the head on an object. A fall from eight or ten feet onto her head could have resulted in the injury. One means by which a violation of section 827.03 may occur is by the commission of an aggravated battery. Since an aggravated battery in turn is committed by one who “[ijntentionally or knowingly causes great bodily harm,” Section 784.-045(l)(a), Florida Statutes, there was overwhelming proof of the crime’s perpetration.

When faced with a situation in which harmless error may apply, our task is to determine whether “the error committed was so prejudicial as to vitiate the entire trial.” Cobb v. State, 376 So.2d 230, 232 (Fla.1979); accord State v. Murray, 443 So.2d 955, 956 (Fla.1984). Indeed, in another context, the harmless error has been applied to excuse even judicial comments made in the presence of the jury. Provence v. State, 337 So.2d 783, 785-86 (Fla.1976).

Although we apply the harmless error rule, given the overwhelming nature of the evidence presented against defendant, we must caution that another ease with less evidentiary force may require reversal. As was observed in Hamilton v. State, 109 So.2d 422, 424-25 (Fla. 3d DCA 1959):

The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled.

Regarding the asserted error as to appellant’s relinquishing his protection against ex post facto laws on the ground that the record is silent as to whether he was advised, after selecting guideline sentencing, that he would not be eligible for consideration of parole, we respond that this case is controlled by Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), holding that because the rule and legislation authorizing the guidelines require only a showing that a defendant “affirmatively select” guideline sentencing, there is no necessity for such selection to be equatable with the term “knowingly and intelligently.” Moore, like the instant case, involved a defendant’s request for guideline sentencing following trial by jury, and not as part of a plea bargain. We therefore affirm as to Point II.

We agree with appellant’s position raised under Point III—that the guideline sentence imposed should be reversed because the trial court failed to state clearly and convincingly in writing its reasons for deviating from the recommended range. See Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984).

AFFIRMED in part, REVERSED in part, and the sentence is VACATED and the case REMANDED for resentencing.

MILLS and ZEHMER, JJ., concur.


author: MILLS, Judge.

text:
    John Lewis BEVEL, Appellant, v. STATE of Florida, Appellee.
    No. AZ-354.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.

      John Lewis Bevel, pro se.
    No appearance for appellee.
   MILLS, Judge.

Bevel appeals from the summary denial of his motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In that motion, he argued that: 1) he had been denied due process in that he was not taken before a magistrate within 24 hours of his arrest; 2) his constitutional rights were violated by the State’s comment on his refusal to testify before the grand jury; 3) the State failed to give him proper Miranda warnings; and 4) evidence against him was obtained by an illegal search and seizure. We affirm.

When all the grounds for postcon-viction relief either were or could have been raised on direct appeal, summary denial of the motion will be upheld. Alday v. State, 431 So.2d 714 (Fla. 1st DCA 1983). Bevel’s conviction was affirmed by this Court, without opinion, in Bevel v. State, 450 So.2d 490 (Fla. 1st DCA 1984). The issue on appeal was whether “the state’s seizure of physical evidence, the obtaining of appellant’s statements, its refusal to take him promptly before a magistrate, and its comment on appellant’s refusal to testify at the grand jury proceedings” violated his constitutional rights so as to warrant a new trial. Therefore, Bevel has already raised on direct appeal the grounds for postconviction relief stated herein and summary denial of his motion was proper.

We affirm.

SHIVERS and WENTWORTH, JJ., concur.


author: SHIVERS, Judge.

text:
    William RUNYON, Appellant, v. STATE of Florida, Appellee.
    No. BA-315.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.

      William Runyon, pro se., for appellant.
    No appearance for. appellee.
   SHIVERS, Judge.

Appellant appeals the trial court’s denial of his RCrP 3.850 motion for post-conviction relief. In his motion, appellant alleged that his conviction was obtained by a coerced plea and that he was denied effective assistance of counsel. The trial court denied appellant’s motion, attaching a copy of the transcript of the plea and sentencing hearing to its order. We affirm.

First, the transcript of the plea hearing attached to the trial court’s order affirmatively refutes appellant’s allegation that his plea of guilty was coerced. This transcript shows that appellant’s plea was entered voluntarily and intelligently. In particular, this transcript shows that appellant stated that no one had threatened, coerced, or intimidated him in any way in order to get him to plead guilty. See generally Frazier v. State, 447 So.2d 959 (Fla. 1st DCA 1984); Rogers v. State, 362 So.2d 1031 (Fla. 3d DCA 1978).

Next, we find that appellant failed to demonstrate that defense counsel’s advice to plead guilty was “outside the wide range of professionally competent assistance.” Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). A decision to plead guilty is a tactical one, State v. Pinto, 273 So.2d 408, 411 (Fla. 3d DCA), cert. dismissed, 283 So.2d 367 (Fla.1973), and in light of the charge that was not filed against appellant in exchange for appellant’s plea, we do not find the decision to plead guilty in this case to be unreasonable. See Strickland, supra, 104 S.Ct. at 2066.

Accordingly, the order on appeal is AFFIRMED.

MILLS and WENTWORTH, JJ., concur.


author: ERVIN, Chief Judge. ZEHMER, Judge,

text:
    In the Interest of C.T.G., a child.
    No. AU-42.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    Christina A. Zawisza and Mary K. Williams of Jacksonville Area Legal Aid, Inc., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for Department of Health and Rehabilitative Services, appellee.
   ERVIN, Chief Judge.

This is an appeal from the trial court’s order failing to require Health and Rehabilitative Services (HRS) to enter into a performance agreement with the natural mother prior to ordering the child permanently committed. We reverse.

The child was born on July 17, 1977, while his mother was hospitalized in the state hospital, and on August 15, 1977, the child was adjudicated to be a dependent child and remained in foster care until May of 1980. On May 29, 1980, the court entered an order denying a petition for permanent commitment and permitted the mother custody of the child, on the ground that the mother had made significant progress in stabilizing her living situation. However on October 10, 1980, upon a finding that the child was deprived and neglected without parental care, the child was adjudicated dependent and committed to the temporary care and custody of HRS. On April 6, 1981, a permanent plan was filed and an order entered on September 21, 1981, transferring the child to his great aunt and great uncle. This arrangement was unsuccessful, and on March 30, 1982, the child was again placed with HRS for foster home placement with a request for a current home study on the mother. The study revealed that the mother had a history of psychotic problems and mental instability, had been admitted to mental hospitals on several occasions, was then living with her boyfriend, and was pregnant and due in October of 1982. The report also revealed that the mother was currently unemployed due to her pregnancy. On September 30, 1982, despite the failure of HRS to participate in the execution of a performance agreement, HRS filed a petition for permanent commitment of the child for the purpose of subsequent adoption, on the ground that the mother suffered from a long history of emotional instability and had been unable to stablize her life for the purpose of providing care for the child. The mother moved to stay permanent commitment proceedings pending compliance of HRS with the requirements of Section 409.-168(3)(a), Florida Statutes, regarding the preparation of performance agreements.

On May 16, 1983, the trial court entered an order denying the mother’s motion to stay the proceedings and for a review of the permanent plan. The trial court determined that the mother had actual knowledge of HRS’s plan to place the child with relatives, or pursue permanent commitment plans since October 19, 1980, and had thus waived her right to review the permanent plan or to stay permanent proceedings. The trial court, however, also stated that the reason that a performance agreement was not required was strictly limited to the facts of the case, noting that the language of section 409.168 is mandatory and must be complied with unless a parent will not or cannot enter into a performance agreement.

The issue before this court is whether Section 409.168(3)(a), Florida Statutes, requires that a performance agreement be prepared before permanent commitment proceedings are instituted. In 1980 the Florida Legislature amended section 409.-168 “to provide a new tool in aid of limiting recourse to foster care and to ‘protect and promote every child’s right to the security and stability of a permanent family home.’ ” In the Interest of A.B., 444 So.2d 981, 990 (Fla. 1st DCA 1983). The legislative intent in creating the performance agreement procedure is clearly set out in section 409.168(1), as follows:

The Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically and they were found eligible for adoption. It is the intent of the Legislature that permanent placements with their biological or adoptive families be achieved as soon as possible for every child in foster care and that no child remain in foster care longer than 1 year. It is the intent of the Legislature, therefore, to help ensure a permanent home for children in foster care by requiring a performance agreement and a periodic review and report to the court on their status.

(e.s.) The purpose of the performance agreement is to

record the actions to be taken by the parties involved in order to quickly assure the safe return of the child to his parents or, if such return is untenable, the permanent commitment of the child to the department or licensed child-placing agency for the purpose of finding a permanent adoptive home.

Section 409.168(3)(a)l. It is apparent that these newly enacted provisions “require an affirmative effort to identify to the natural parent the problems or conditions in the home that account for the child having been removed and kept in foster care; to assist the parent in making a personal commitment, [and] to remedy those specific conditions”. In the Interest of A.B., 444 So.2d at 991 (e.s.).

Section 409.168(3)(a), effective October 1, 1980, mandates the preparation of a performance agreement when the child has been placed in foster care by the appropriate social service agency. The only exception to the preparation of a performance agreement between HRS and the parent(s) is provided for when “the natural parents will not or cannot participate in preparation of a performance agreement.” (e.s.) Section 409.168(3)(a)3. In this case, the child was placed in a foster home on October 10, 1980 and a permanent plan was filed on October 31, 1980. It is undisputed that at no time was a performance agreement prepared or executed, or that the mother would not or could not participate in the preparation of a performance agreement. Conceding that the language of section 409.168, regarding a performance agreement is mandatory, the trial court concluded that under the circumstances, a performance agreement was not required. This conclusion was clearly at variance with the legislative intent.

Based on the aforementioned underlying purposes and intent of section 409.168, the preparation of a performance agreement between the parent and HRS is “central to the strategy for securing each child a permanent home with his legally recognized parent”, In the Interest of A.B., at 991, and should be mandated in every case when a child is placed in foster care. The statute requires that the mother’s rights as a natural parent should be safeguarded to the extent of giving her the opportunity of participating in the performance agreement process as set forth in Section 409.168.

Reversed and remanded for further consistent proceedings.

ZEHMER, J., specially concurring with written opinion.

BOOTH, J., dissents.

ZEHMER, Judge,

concurring specially.

I concur, although somewhat reluctantly, in the decision to reverse. The rather extraordinary facts we are dealing with strongly suggest that, regardless of what we hold, this case will ultimately result in the permanent commitment of this unfortunate child. For this reason, the temptation is great to let the appealed judgment stand, but I am convinced that the majority opinion is a correct interpretation of the law and that to hold otherwise would create bad precedent leading to substantial erosion of the laudatory purposes underlying the 1980 legislation requiring performance agreements.

      .§ 409.168(3)(a)l, 2, and 3 is as follows:
      (3)(a) In each case in which the custody of a child has been vested either voluntarily or involuntarily in the social service agency and the child has been placed in foster care, a performance agreement shall be prepared within 30 days after the placement and shall be submitted to the court.
      1. The purpose of a performance agreement shall he to record the actions to be taken by the parties involved in order to quickly assure the safe return of the child to his parents or, if such return is untenable, the permanent commitment of the child to the department or licensed child-placing agency for the purpose of finding a permanent adoptive home.
      2. If the preparation of a performance agreement, in conference with the natural parents, cannot be accomplished within 30 days, for good cause shown, the court may grant an extension not to exceed 30 days.
      3.In the event the natural parents will not or cannot participate in preparation of a performance agreement, the social service agency shall submit a full explanation of the circumstances, and a plan for the permanent placement of the child, to the court within the time as provided for a performance agreement. The plan shall include, but need not be limited to, the specific services to be provided by the social service agency, the goals and plans for the child, and the time frame for accomplishing the provisions of the plan and for accomplishing permanence for the child. The plan shall take the place of the performance agreement and shall meet all requirements provided for the performance agreement. The parent who has not participated in the development of a performance agreement may seek review of the plan developed by the social service agency prior to the initial 6 months’ judicial review.


author: WIGGINTON, Judge.

text:
    In the Interest of A.G.N., Jr., A Child.
    No. AX-147.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    Rehearing Denied Jan. 3, 1985.
    Daniel T. O’Connell, Gainesville, for appellants.
    John P. O’Neal of O’Neal & O’Neal, Gainesville, for appellee.
   WIGGINTON, Judge.

This cause is before us to review the trial court’s final “Order of Commitment for Subsequent Adoption,” wherein it adjudged A.G.N., Jr., to be a dependent child under chapter 39, Florida Statutes, and ordered the child to be permanently committed to the care, custody and control of Christian Family Services, Inc., for subsequent adoption. The crux of the issue before us is whether A.G.N., Jr., is a dependent child as defined by section 39.01(9). Cognizant of the outstanding purposes of chapter 39, those being the preservation and strengthening of the child’s family ties, and the safeguarding of the child’s welfare, section 39.001, we carefully and conscientiously scrutinized the record before us only to conclude that the trial court did not abuse its discretion in finding A.G.N., Jr., to have been abandoned and neglected by his natural parents as those terms are defined by section 39.01(1) and (26), and consequently, to be a dependent child. We conclude, as did the trial court, that the surrender, consent and waiver of notice forms executed by the parents in favor of Christian Family Services, Inc., were knowingly, freely and voluntarily given, and concur in the trial court’s determination that A.G.N., Jr., be removed from his parents’ custody.

AFFIRMED.

JOAN OS and NIMMONS, JJ., concur.


author: ZEHMER, Judge. MILLS, Judge,

text:
    Clara GANT, individually and as parent and next friend to Monica Gant, a minor, Appellant, v. LUCY HO’S BAMBOO GARDEN, INC., d/b/a Lucy Ho’s Restaurant, Appellee.
    No. AY-356.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    Donald M. Hinkle, of Green, Fonvielle & Hinkle, Tallahassee, for appellant.

      Michael T. Callahan, of Brooks, Callahan & Phillips, Tallahassee, for appellee.
   ZEHMER, Judge.

Clara Gant and her eight-year-old daughter, Monica, sued Lucy Ho’s Bamboo Garden, Inc., appellee, in a personal injury action, alleging that Lucy Ho’s breached its implied warranty that the egg rolls furnished by it to Monica would be free from impurities likely to cause injury. Cliett v. Lauderdale Biltmore Corp., 39 So.2d 476 (Fla.1949). Appellant claims the lower court erred in directing a verdict for appel-lee on the grounds (1) that the evidence was insufficient to support the cause of action, and (2) the evidence presented at trial was insufficient to support an award of $5,000 so as to bring the case within the jurisdictional limits of the circuit court. We reverse.

Discussing the second issue first, the complaint alleged that as a result of ingesting food contaminated with shigella, a bacterium which invades the intestinal tract, Monica suffered bodily injury which caused pain and discomfort, disability, mental anguish, loss of capacity for the enjoyment of life, and required medical care and treatment. The complaint alleged that Clara Gant incurred medical expenses on Monica’s behalf and suffered loss of companionship and services of the minor child. It was also alleged that the damages claimed were permanent or continuing in nature and exceeded $5,000. In granting the directed verdict for lack of jurisdiction in the circuit court, the trial judge ruled that the evidence adduced at trial was not sufficient as a matter of law to support damages of $5,000. The trial court, however, explicitly declined to find that plaintiff’s complaint was not filed in good faith.

It is well established that the test for determining this jurisdictional question is whether the amount put into controversy by the complaint is claimed in good faith. P.T.S. of Gainesville, Inc. v. Olivetti Corp. of America, 334 So.2d 324 (Fla. 1st DCA 1976). Even though the trial judge expressed his belief that he would have to overturn any award of damages for $5,000, he did not find — and we conclude the record would not support any finding — that the plaintiff was not acting in good faith in filing her complaint.

Regarding the sufficiency of the evidence issue, the trial court granted a directed verdict because the plaintiff had failed to prove that the egg rolls sold by appellee were contaminated and caused Monica’s illness. The trial court apparently accepted appellee’s argument that the only evidence of causation was the testimony of plaintiff’s expert witness, Dr. Macaluso. Appel-lee argues that Dr. Macaluso’s testimony that the egg rolls were the carrier of the shigella bacteria which caused Monica’s illness was incompetent and insufficient to prove this essential element because it amounted to a conclusion or opinion based on facts and inferences not supported by evidence in the record. .

The evidence, viewed most favorably to plaintiff, established the following circumstances. Monica went to Governor’s Square Mall with her mother and sister on a Friday afternoon after school. Sometime between 4:30 p.m. and 6 p.m., Monica consumed an egg roll purchased from appel-lee’s restaurant at Governor’s Square. Her sister also purchased an egg roll but ate only half of it, and Monica ate the remainder. Monica ate no more food that evening. Around 11 p.m., Monica awoke» with stomach cramps, severe diarrhea, and a fever which continued to Saturday. Her sister also became ill that evening with the same symptoms, but to a markedly lesser degree. By Saturday evening, Monica’s condition had deteriorated so badly that her mother took her and her sister to the emergency room of the hospital. Monica’s illness was diagnosed as caused by a bacterial organism, shigella sonnei, which attacks the intestinal tract. Monica had attended school that Friday and eaten lunch in the school cafeteria, but none of her classmates partaking of the school food became ill from food poisoning. Monica’s mother purchased food at another restaurant in the mall that evening and did not become ill.

The expert testimony established that shigella is usually transmitted from the fecal material of an infected person or carrier. It can be food-borne if food is handled by a carrier. It also can be directly transmitted as a result of exposure to a carrier or by “fecal hand-to-mouth” as the result of careless personal hygiene. Dr. Macaluso testified that the symptoms vary in severity with the amount of organism ingested and the weight, age, and general health of the patient. Based on the medical history revealed in the hospital records and as testified to by Monica and her mother, he characterized Monica’s case as severe and opined that she had ingested a great deal of the organism. He further testified that a large dose is likely to come from food because the organism would reproduce in the food medium when kept at a temperature below that required to neutralize or kill the bacteria. The incubation period could vary from six to fifty hours, and a larger dose or amount of the organism is likely to cause a quicker and more severe onset of symptoms. Because Monica manifested severe symptoms so quickly, Dr. Macaluso opined, it was most probable that the last food she ate, the egg rolls, caused her illness. He conceded on cross-examination, however, that contraction of the illness from personal contact could cause as severe a case as from food-borne bacteria and that there was no way, based on the severity of the illness, to distinguish whether personal contact or food-borne bacteria had caused Monica’s illness. He agreed that shigella bacteria could not live in food raised to 350° Fahrenheit.

The manager of appellee’s restaurant located on Apalachee Parkway testified concerning the standard method of preparing egg rolls. The ingredients are chopped and wrapped by hand, and the completed roll is partially cooked in a deep-fat fryer at 350° for approximately five minutes. When necessary, the rolls are removed from a cooler and deep-fat fried for another three to four minutes. The egg rolls are then placed in a warmer which is supposed to be set at 140°. The rolls are served by using metal tongs. There was also evidence that the employee bathroom at appellee’s restaurant had a posted sign cautioning employees to wash their hands. The sign was written in English, but many of the employees did not speak that language. The manager who testified was not present at the mall restaurant on the date here involved and did not directly supervise or have personal knowledge of the actual conditions and conduct of the employees on that date.

It is elementary that an appellate court, in reviewing the propriety of a directed verdict, must view the facts and inferences to be drawn therefrom in the light most favorable to the party against whom the judgment was granted. 2 Fla. Jur.2d, Appellate Review, § 326. A trial court is authorized to grant a directed verdict only if there is no evidence or reasonable inference from the evidence which will support the nonmoving party’s position. Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1979). In reviewing the sufficiency of the evidence, it must be remembered that “a mere possibility of causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Id. at 781. But the court in Greene also points out that Florida courts have recognized that, even though the issue of causation is beyond the common knowledge of laymen, it is not always necessary to prove legal causation by expert testimony if other competent evidence demonstrates causation, citing Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974), and Alton Box Board Co. v. Pantya, 236 So.2d 452 (Fla. 1st DCA 1970). It has been held in a food poisoning case that although the only means of definitely ascertaining the precise cause of illness is to chemically analyze the food and plaintiff’s stools, the failure to present such evidence does not leave the plaintiff’s case legally insufficient in the presence of circumstancial evidence that some of the defendant’s customers consumed a shrimp salad alleged to have been deleterious while other customers in the group partook of different food and only those having ingested the shrimp salad became ill. Ogden v. Rosedale Inn, 189 So. 162 (La.App.1939). In that case, the court stated:

The theory of plaintiffs case is that the shrimp salad which they ate at the defendant’s restaurant was not fit for human consumption and that it is the direct cause of their illness. They have attempted to establish this as a fact by the process of elimination, exhibiting that, of the six people partaking of lunch at the defendant’s restaurant, only four of them (the plaintiffs) ate shrimp salad and that they are the ones who suffered from food poisoning.
Dr. La Bruyere, Mrs. Ogden’s physician, states that it is his belief that his patient was affected with food poisoning and that, according to the history of the case, it is very probable that the shrimp salad she ate was the direct cause of her illness. Plaintiffs further show that all of them, with the exception of Mr. Berthelot and Mrs. Hanlon, ate different food on the evening after their visit to the defendant’s restaurant and they point to this fact as a circumstance tending to prove that the shrimp salad is the underlying cause of their ailment.
⅜ ⅜ ⅝ ⅜: ⅜!
While we agree with counsel that the plaintiffs had the burden of establishing that they were poisoned as a result of eating shrimp salad at the defendant’s restaurant, we think that the evidence is sufficient to authorize the finding that their ailments are attributable to the shrimp salad and that the food served to them by the defendant was deleterious. The proof in the record clearly demonstrates that the plaintiffs were afflicted with food poisoning. All of them suffered with nausea, vomiting spells and diarrhea. These symptoms plainly indicate the presence of bacteria in the intestines. Moreover, it is very probable that the shrimp salad was the underlying cause of plaintiffs’ illness. It is shown that all of them became sick about the same time and that the two other persons with them who did not eat shrimp were not affected.
Counsel for defendant seems to be of the belief that it was necessary for plaintiffs to prove beyond all doubt that the shrimp salad was the underlying cause of their illness and that it was encumbent upon them to have had a chemical analysis taken either of the food -or of their stools in order that it might be positively established that the shrimp were unfit for human consumption. Counsel is mistaken. The law does not require exact proof, but only that the claim be shown with reasonable certainty.

189 So.2d at 163-64.

Similarly, we hold that the evidence in this case was sufficient to make a jury issue on whether the appellee’s egg rolls consumed by Monica were the cause of her illness. There was no showing that lack of proper personal hygiene practices by Monica likely caused her ingestion of the bacteria. The expert testimony, together with the circumstances that Monica, after eating three times the quantity of egg rolls as did her sister, became seriously ill and her sister also became ill, but to a notably lesser degree, while the mother ate entirely different food and did not become ill at all, supports reasonable inferences that the egg rolls — the single common factor to which both Monica and her sister were exposed — were the most probable carrier of the shigella bacteria which caused Monica’s illness.

The testimony of appellee’s manager concerning the usual procedure for cooking the food at a temperature of 350° and storing it at a temperature of 140° cannot be said as a matter of law to irrefutably negate the probability that the egg rolls were the carrier of the shigella bacteria. He was not present to supervise food preparation on the day in question and could only testify to the usual or customary practice. The jury was free to accept or reject his testimony as refuting the plaintiff’s claim.

Accordingly, the judgment is reversed and the ease is remanded for a new trial.

ERVIN, C.J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurring in part and dissenting in part:

I concur in part and dissent in part.

I agree with the majority that the trial court erred in directing a verdict for Lucy Ho for lack of jurisdiction and I would reverse on this issue.

I disagree with the majority that the trial court erred in directing a verdict for Lucy Ho because the evidence was insufficient to prove that the egg rolls were contaminated and I would affirm on this issue.

The unrefuted evidence is that the egg rolls were fried at 350 degrees which killed the bacteria and then kept at 140 degrees at which the bacteria could not live. Causation was not shown. A directed verdict is proper where evidence or an essential element is lacking. Georgia-Pacific Corporation v. Squires Development, 387 So.2d 986 (Fla. 4th DCA 1980).

Dr. Macaluso’s opinion was based on his presumption that Monica’s illness was caused by the last ingested food. His opinion was merely a conclusion inferred from a fact not supported by the evidence. It was pure speculation to conclude that the eggroll caused the illness. The Gants did not contradict Lucy Ho’s evidence that the 350 degree cooking would have killed the bacteria. Nothing implicates the eggroll except that it was the last thing eaten. There was no evidence on which the jury could have found for the Gants. Arkin Construction Company v. Simpkins, 99 So.2d 557 (Fla.1957), establishes that “the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value_ The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion.”

Dr. Macaluso based his conclusion that Lucy Ho’s eggroll caused Monica’s illness on his inference from the severity of the illness and its rapid onset that the illness was food borne. Nothing in the record supports a food borne illness over one contracted by personal contact or self-infliction. In fact, the expert testified that the latter type could be just as severe. As the court said in Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978):

A mere possibility of causation is not enough, and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The 1939 Louisiana case is not applicable to the facts of this case because it did not have unrefuted evidence as this case does that the food was fried at a temperature that killed the bacteria and kept at a temperature at which the bacteria could not live.


author: PER CURIAM.

text:
    MIAMI ELEVATOR CO./FLORIDA POWER CORPORATION and GAB Business Services, Inc., Appellants, v. Steve JONES, Rainflow of Tampa Bay & CNA Insurance Company of Florida, Appellees.
    No. BA-410.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.

      Kurt Preston Hampp, St. Petersburg, for appellants.
    Lawrence H. Samaha, Tampa, for appel-lees.
   ON MOTION FOR EMERGENCY RELIEF

PER CURIAM.

Claimant/appellee has filed a motion seeking an order remanding (relinquishing jurisdiction of) this case to the deputy commissioner so that he might consider the claim for emergency relief. Because we deem such an order unnecessary, we deny the motion.

Claimant’s motion asserts that prior to the hearing which resulted in the present appeal, each of the carriers were paying one half of claimant’s temporary total disability benefits and medical benefits. However, when the final order was entered finding appellant GAB/Florida Power to be solely liable, both carriers ceased payment of the temporary benefits. The motion further asserts that CNA has offered to pay one half of the benefits if GAB will also pay one half. GAB resists such payment, asserting that if it is successful in this appeal, it will not be reimbursed for its overpayments by CNA.

Because we find that the deputy commissioner has jurisdiction to determine the claim for emergency relief, we do not reach the merits of claimant’s entitlement except to note that any overpayment made by GAB pursuant to an order of the deputy would be subject to the reimbursement terms of § 440.42(3). The appeal in this case is from an order determining a controversy as to which of two carriers is liable. The claim for emergency relief is a separate claim which ripened after the entry of the final order giving rise to this appeal. Thus, it is a claim which may generate a separate final order which itself would be appealable. See Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982); Hunt v. International Minerals, 410 So.2d 640 (Fla. 1st DCA 1982). Therefore, the motion for emergency relief filed in this court is denied without prejudice to claimant’s right to renew the claim before the deputy commissioner.

MILLS, SHIVERS and WENTWORTH, JJ., concur.


author: NESBITT, Judge. DANIEL S. PEARSON, Judge,

text:
    Vance VAUGHN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2515.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant appeals his conviction of robbery and displaying a firearm during the course of a robbery. We affirm.

The victim’s testimony established that •the defendant approached the victim, pointed a gun at the victim, demanded his money, and that the victim turned over his money to the defendant. Although the defense put on no evidence, through argument the defense attempted to convince the jury that what had actually occurred on the street was a drug transaction, whereby the victim, Mr. Crabbe, had given money to the defendant for the purpose of buying marijuana for him. The jury obviously rejected the defense’s argument when it found the defendant guilty of robbery and possession of a firearm during the course of a felony.

The sole issue presented is whether fundamental error occurred because of the trial court’s failure to instruct the jury on the specific intent element of robbery. There is no doubt that the intent to permanently deprive another of property is an element of robbery. See Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983); Bell v. State, 394 So.2d 979 (Fla. 1981). We find, however, that the court’s failure to specifically instruct the jury on this element did not amount to fundamental- error requiring reversal in this case.

In pertinent part, the trial court instructed the jury:

It is the crime of robbery for any person to take money or other property of any value whatsoever from the person or custody of another by force, violence, or assault, or putting in fear. The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that: the defendant did take from the person or immediate custody of Geoffrey Crabbe the money as described. The property was taken against the will of Mr. Crabbe. The taking was by means of force, violence, or assault, or by putting Mr. Crabbe in fear.
The taking must be by the use of force, or violence, or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so he does not resist.

What is important is that sufficient instructions be given so as to provide adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before it. State v. Bryan, 287 So.2d 73 (Fla.1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974). We find that once the jury concluded, as it obviously did under the instructions given, that the defendant had taken money from the person or custody of Mr. Crabbe against his will, by force, violence, assault or putting in fear, it is totally inconceivable and beyond all comprehension that the jury could have failed to find from the evidence that the defendant had every intent to permanently deprive the victim of the possession, use and enjoyment of the property. See Gains v. State, 417 So.2d 719, 725 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983). Therefore, it cannot be said that the defendant’s right to due process— that is, an essentially fair trial — was compromised in any way by the trial court’s failure to instruct the jury on intent to permanently deprive the victim of property. See Williams v. State, 400 So.2d 54(Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983).

Accordingly, finding that no fundamental error occurred, the judgment of conviction is affirmed.

DANIEL S. PEARSON, Judge,

concurring.

The defense that the money was given to the defendant as part of a drug transaction implicitly concedes the ‘’intent to permanently deprive” element and asks the jury to determine only whether the victim parted with his property voluntarily or was relieved of it through the defendant’s as-saultive conduct. Therefore, I agree that the unobjected-to failure to instruct the jury on the intent to permanently deprive element is no more fundamental error here than it is when the defense is mistaken identity. See, e.g., Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984) (on rehearing).

      . Defense counsel did not object to the instructions as given. Therefore, we need only consider whether the instructions given amounted to fundamental error or, in other words, amounted to a denial of due process. See Castor v. State, 365 So.2d 701 (Fla.1978); Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed,2d 998 (1983).

      . We note that the court instructed the jury that the charge of robbery included the lesser offense of larceny. Concerning the lesser-included offense of larceny, the court instructed the jury that an essential element of larceny was the intent to permanently deprive the owner of possession, use, and enjoyment of his property. See Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974) (a challenged instruction, or portion thereof, must be considered with the whole instruction or other instructions bearing on the same subject in determining whether the law was fairly presented or whether the instruction might have misled the jury).


text:
    Luciano MORRA, Eugene Holzhauer and Southland Insurance Company, Appellants, v. The STATE of Florida, For the Use and Benefit of MONROE COUNTY, Appellee.
    Nos. 83-270, 83-1440.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Randolph Q. Ferguson, Miami, for appellants.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Lucien C. Proby, Jr., County Atty. and James R. Keller, Asst. County Atty., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

A defendant on bond who inconvenienced the court, a jury venire, and witnesses by not appearing on the date of trial, but who was surrendered by the surety to the custody of authorities within thirty days of the trial date and was subsequently tried and convicted, has not “thwarted the proper prosecution of the defendant” as that term is used in sections 903.26(5)(c) and 903.-28(2), Florida Statutes (1983). See Allied Bonding Agency, Inc. v. State, 358 So.2d 246 (Fla. 4th DCA 1978) (not every disappearance of a defendant thwarts prosecution even though it causes delay). Here a timely motion to vacate the forfeiture was made by defendant’s counsel prior to the entry of a forfeiture judgment. The trial court reserved ruling on that motion and, after the judgment of forfeiture was entered, denied a subsequent motion to vacate filed by the surety, ruling that the defendant’s failure to appear constituted a thwarting of the prosecution as a matter of law. We disagree. On remand the trial court may, in the exercise of discretion, consider circumstances other than the delay or the subsequent conviction in ruling on the motion to vacate judgment of forfeiture and discharge surety.

Reversed and remanded for further proceedings.


author: HENDRY, Judge.

text:
    T.J.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2240.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant, a juvenile, appeals from an adjudication of delinquency arising from a determination that he was guilty of burglary, in violation of section 810.02, Florida Statutes (1983).

The evidence at the adjudicatory hearing revealed that the alleged burglary took place at the Moores’ home, which had a fenced-in yard. Donald Moore was home on the afternoon the incident occurred and heard noises of breaking glass. When he looked out of the house he saw one person but could not see his face. He then heard someone go to the back door, knock on it and pull on the door’s handle. He heard more glass breaking and called the police. He then yelled, “Hey, who is that?” and the intruder left.

The Moores’ neighbor testified thereafter and stated that on the same afternoon he observed two boys go up to “the back of the door” of the Moores’ home. He also said that he saw them “messing around with the windows.” The appellant was then identified as one of the “boys.” The witness, when asked to tell the court exactly what he saw the appellant doing, stated, “he was trying to get them [windows] out.” On cross-examination, the witness said he had seen two boys at the window and that he saw the “other boy” with the window. On re-direct examination the witness indicated that when the “other boy” was touching the window, the appellant was standing behind him.

Next to take the witness stand was the investigating officer. The officer testified that the appellant freely and voluntarily made the statement that he was at the Moores’ home because A.T., the “other boy,” “asked him to go there and assist in the burglary.” The state then rested. The appellant moved for a judgment of acquittal, which motion was denied. The appellant was thereafter adjudicated delinquent as charged.

On appeal appellant argues that this set of facts is identical to those in G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981), wherein the evidence sustaining the conviction of aiding and abetting in the attempted commission of burglary was found to be legally insufficient. In G.C., the juvenile knew of his companion’s intent to commit a burglary and followed him to the crime scene, but stood 15 feet back and watched his companion remove the jalousie window of an apartment. This court held that the juvenile’s mere presence at the scene with the knowledge that a crime was to be committed was insufficient to establish aiding and abetting.

The state asserts that the appellant’s admission proved, at the very least, his intent to assist his friend in the commission of the crime. That the appellant acted overtly to aid in the commission of the crime, the state argues, was shown by proof of appellant’s initial trespass onto the Moores’ property, coupled with the witness’s observation of appellant “messing around with the windows” at the back of the Moores’ home. The state suggests that a factual inference arose that the appellant had previously attempted to remove the window when observed by the witness prior to the witness’s observation of the other boy “with the window.” We agree with the state’s assertions and affirm the adjudication of delinquency.

For one to be convicted as an aider and abettor it must be demonstrated not only that he assisted, but that he intended to participate in the perpetration of the crime in question. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933). Stated in another way, there are two essential conditions which must be met to result in the status of aider and abettor. An aider and abettor is one who has the intent that the crime be committed and who, by acts or words, assists or encourages another in the actual commission of the crime. Ryals v. State, supra; Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978). While we are well aware of the long line of cases which establish that mere presence at the scene of the crime does not exclude the reasonable hypothesis that the defendant had no knowledge of the crime until it actually occurred and thus, did not intend to assist in its commission, and those which establish that mere presence at the crime scene and mere knowledge of the crime to be committed, without more, does not eliminate the hypothesis that the defendant stopped and refused to act or participate in the commission of the crime, and thus, did not assist, we conclude that this juvenile offender went beyond merely being present at the crime scene with knowledge of the crime to be committed. Here, the appellant admitted that he was at the crime scene to assist his companion in the burglary and he was seen at the back of the home “messing around with the windows.” Given this set of circumstances, we believe that the two elements necessary to establish appellant’s guilt as an aider and abettor have been satisfied. Ryals v. State, supra; Chaudoin v. State, supra.

When a defendant moves for a judgment of acquittal he admits all facts in the evidence adduced and every conclusion favorable to the state reasonably inferable therefrom. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976). Applying to the instant case the rule that a motion for judgment of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted under which a jury could legally find a verdict of guilty, Lynch v. State, 293 So.2d 44, 45 (Fla.1974), we accordingly affirm the order under review.

Affirmed.

      . § 810.02(1) provides, in pertinent part: “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein....

      . § 810.011(1), Fla.Stat. (1983), provides that "Structure” means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.
      The "curtilage” has been defined as the area surrounding any building. Sealey v. State, 379 So.2d 430 (Fla. 2d DCA 1980); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978).

      . E.g., Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla. 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968); and Gilday v. State, 168 So.2d 205 (Fla. 3d DCA 1964), wherein the defendants actually drove or accompanied the perpetrator to or from the scene of the crime.

      . E.g., Collins v. State, 438 So.2d 1036 (Fla. 2d DCA 1983); Miller v. State, 420 So.2d 631 (Fla. 2d DCA 1982); G.C. v. State, supra; J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); R.W.G. v. State, 395 So.2d 1279 (Fla. 2d DCA 1981).

      . We note that proof of the stealthful entry into the curtilage of a building has been found sufficient to constitute the offense of burglary of a structure located on the premises. Tobler v. State, 371 So.2d 1043 (Fla. 1st DCA), cert. denied, 376 So.2d 76 (Fla.1979); DeGeorge v. State, 358 So.2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978).


author: HUBBART, Judge.

text:
    GREAT LAKES DREDGING AND DOCK COMPANY, Appellant, v. SEA GULL OPERATING CORPORATION, Appellee.
    No. 83-2243.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.

      Gerald E. Rosser, Miami, for appellant.
    Markus, Winter & Feldman and Stuart Markus and Sheldon I. Pivnik, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   HUBBART, Judge.

This is an interlocutory appeal from a non-final order granting summary judgment on the issue of liability in favor of the plaintiff in an action for damages sounding in strict liability for ultra-hazardous or abnormally dangerous activity. We have jurisdiction to entertain this interlocutory appeal. Art. V, § 4(b)(1), Fla. Const.; Fla.R. App.P. 9.130(a)(3)(C)(iv).

The issue presented for review is whether the owner of a large rock-crushing machine, used to restore a public beach in a resort area, is strictly liable under the doctrine of Rylands v. Fletcher, L.R., 3 H.L. 330 (1868), to the owner of a nearby hotel for financial losses due to guest cancellations caused directly by the continuous, intense and disturbing noise emanating from the rock-crushing machine. Because (a) no complaint is made that the rock-crushing machine poses any physical danger of harm, much less an ultrahazardous or abnormal danger, to persons or property in the area, and (b) the financial losses suffered by the plaintiff were, in any event, outside the scope of any conceivable abnormal risk of harm posed by the machine, we conclude that the doctrine of Rylands v. Fletcher is wholly inapplicable to this case. We accordingly reverse the order under review and remand for further proceedings.

I

The material facts of this case are not in dispute. The plaintiff Sea Gull Operating Corporation [“Sea Gull”] owns and operates a beach front hotel in south Miami Beach, Florida, known as the Sea Gull Hotel. The defendant Great Lakes Dredging and Dock Company [“Great Lakes”] owns a large rock-crushing machine which measures twenty-four feet square at the base and stands between forty-five and forty-eight feet tall.

On or about June 25,1981, the defendant Great Lakes placed this rock-crushing machine on a state-owned portion of the public beach adjacent to the Sea Gull Hotel, approximately 650 feet from the corner of the hotel. The machine was placed there pursuant to a contract which the defendant Great Lakes had with the United States Corps of Army Engineers as part of a large-scale beach restoration project covering the beach area located south of 21st Street on Miami Beach. The machine apparently crushes rock and sand which is pumped into it by pipeline from offshore, pulverizes the material to make it finer, and then deposits the sand on the beach.

Aside from its alleged unsightliness, the plaintiff Sea Gull’s chief complaint against this machine is that it is excessively noisy. No claim is made that the machine poses a physical danger to life or limb of any person in the area, and no claim is made that the noise or vibrations caused by the machine pose a physical danger to the structure of any building or property in the area. The complaint is that the machine creates a continuous and intense noise which is so disturbing to the plaintiffs hotel guests that these guests have can-celled their hotel reservations in large numbers, resulting in over $100,000 loss of business to the plaintiff.

The plaintiff Sea Gull sought an injunction against the placement of the rock-crushing machine near its hotel, in an action which it brought in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court denied this injunction, after an evidentiary hearing, without prejudice to a possible claim for damages. The plaintiff Sea Gull then amended its complaint to state a cause of action for damages sounding in strict liability for ultrahazardous or abnormally dangerous activity. The defendant Great Lakes filed a general denial answer and set up certain affirmative defenses not relevant here.

Based on the testimony adduced at the injunction hearing, plus a supporting affidavit, the plaintiff Sea Gull moved for a summary judgment on the issue of liability. The basis of the motion was that the undisputed material facts in the record showed that the defendant Great Lakes was liable to the plaintiff under the Rylands v. Fletcher doctrine of strict liability for ultrahazardous or abnormally dangerous activity. The trial court heard and granted the motion; the defendant Great Lakes appeals.

II

In accord with a growing body of jurisdictions in this country, Florida courts have adopted the doctrine of strict liability for ultrahazardous or abnormally dangerous activity as established by Rylands v. Fletcher, supra, and reformulated by the Restatement of Torts §§ 519, 520 (1938), and Restatement (Second) of Torts (Tent. Draft No. 10,1964). Hutchinson v. Capelletti Brothers, 397 So.2d 952 (Fla. 4th DCA 1981); Cities Service Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975); see also Pensacola Gas Co. v. Pebley, 25 Fla. 381, 5 So. 593 (1889). In the leading case of Cities Service Co. v. State, supra, the Second District Court of Appeal of Florida, speaking through Judge Grimes, traces the history of the Rylands v. Fletcher doctrine, concludes that it is the law of Florida, and adopts the doctrine as reformulated by the American Law Institute, to wit:

“The American Law Institute has considered this question in §§ 519 and 520 of the Restatement of the Law of Torts (1938).
These sections state:
‘§ 519. MISCARRIAGE OF ULTRA-HAZARDOUS ACTIVITIES CAREFULLY CARRIED ON.
Except as stated in §§ 521-4, one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahaz-ardous, although the utmost care is exercised to prevent the harm.
‘§ 520. DEFINITION OF ULTRA-HAZARDOUS ACTIVITY.
An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and
(b) is not a matter of common usage.’ Recognizing the evolving nature of the law in this area, the American Law Institute published Tentative Draft No. 10 in 1964 in which certain changes were recommended for §§ 519 and 520. Thus, in § 519 and § 520 the substitution of the words ‘abnormally dangerous’ is suggested in place of the word ‘ultrahazardous.’ In § 520, the following factors are said to be pertinent in determining whether an activity is abnormally dangerous:
‘(a) Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others;
(b) Whether the harm which may result from it is likely to be great;
(c) Whether the risk cannot be eliminated by the exercise of reasonable care;
(d) Whether the activity is not a matter of common usage;
(e) Whether the activity is inappropriate to the place where it is carried on; and
(f) The value of the activity to the community.’ ”

312 So.2d at 802 (footnote omitted).

Central to this doctrine, however, is a finding that the ultrahazardous or abnormally dangerous activity poses some physical, rather than economic, danger to persons or property in the area, which danger must be of a certain magnitude and nature. “For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one.” Restatement (Second) of Torts § 520 comment f (1976) (emphasis added). Liability for engaging in such activity, in turn, “is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous,” Restatement (Second) of Torts § 519(2) (1976); stated differently, “[t]he rule of strict liability ... applies only to harm that is within the scope of the abnormal risk that is the basis of the liability.” Restatement (Second) of Torts § 519 comment e (1976). For example, the noise caused by non-negligent blasting activity, which frightens mink on a nearby mink farm to such an extent that they kill their young, does not render the blasting party liable for the loss of the mink; the damage suffered here is not the kind of harm that is within the scope of the abnormal risk posed by blasting activity. Foster v. Preston Mill Co., 44 Wash.2d 440, 268 P.2d 645 (1954); Restatement (Second) of Torts § 519 comment e, illustration 1 (1976).

Ill

Turning to the instant case, we have no difficulty in concluding that the doctrine of Rylands v. Fletcher imposing strict liability for ultrahazardous or abnormally dangerous activity, has no application in this case, and, that, accordingly, the order granting partial summary judgment for the plaintiff Sea Gull must be reversed. We reach this conclusion for two reasons.

First, there is utterly no showing in this record that the rock-crushing machine poses any physical danger to any person or property in the immediate area where it is situated on the beach, much less that the danger posed is ultrahazardous or abnormally dangerous. Indeed, the plaintiff Sea Gull’s sole complaint with this machine is that it is excessively noisy. This being so, it is plain that the operation of the rock-crushing machine was not in any sense an ultrahazardous or abnormally dangerous activity within the meaning of the Rylands v. Fletcher doctrine.

Second, to the extent that the rock-crush- • ing machine might conceivably be said to be engaged in ultrahazardous or abnormally dangerous activity [in that the machine could perhaps spew out loose rocks, topple over, cause physical tremors in the ground, or otherwise physically injure persons or property in the area], it is plain that the damages suffered by the plaintiff Sea Gull were entirely outside the abnormal risk of physical harm which this machine could possibly create. The rock-crushing machine did not, in fact, spew out loose rocks, topple over, or cause physical tremors in the ground; indeed, it caused no physical damage whatever to persons or property in the area. All it did was create an excessive and irritating noise which caused the plaintiff Sea Gull’s hotel guests to check out in large numbers, resulting in a loss of business to the said plaintiff. Like the killing of the young mink in Foster v. Preston Mill Co., supra, the damages suffered by the plaintiff Sea Gull were entirely outside the abnormal risk of physical harm posed by the defendant’s alleged ultrahazardous or abnormally dangerous activity. This being so, there can be no recovery for these damages under the Rylands v. Fletcher doctrine.

This is not to say, however, that the plaintiff Sea Gull has no remedy for its financial losses in this case. It may very well be that a cause of action sounding in nuisance lies for the damages suffered herein due to the machine’s excessive noise. See Baum v. Coronado Condominium Association, 376 So.2d 914 (Fla. 3d DCA 1979), and authorities collected; Annot., 24 A.L.R.2d 194 § 24 (1952), and authorities collected. Upon remand, the plaintiff Sea Gull shall therefore be permitted, if it so desires, to amend its complaint to state a cause of action for nuisance.

The order under review is reversed and the cause is remanded to the trial court for further proceedings.


text:
    Jorge RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2456.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Juan Ramirez, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Rodriguez appeals a revocation of probation which was based on a finding that he committed an attempted burglary. We agree with appellant that the evidence was insufficient to prove an attempted burglary because: (a) the state failed to show the intent to commit an offense within Ms. Schraader’s home; and (b) the court erred in deriving that intent from section 810.07, Florida Statutes (1981), which does not operate in the case of an attempted burglary where there is no entry. State v. Waters, 436 So.2d 66, 69-70 (Fla.1983). However, it was clearly established that the defendant entered the property and, even in the face of Ms. Schraader’s warnings that she would call the police, attempted entry through the front door, the back door, and a window. Therefore, there was sufficient competent evidence to support a finding that Rodriguez committed the offense of trespass in violation of sections 810.08(1), (2)(b) and 810.011(1), Florida Statutes (1981). Consequently, the revocation of probation is sustainable. Finding Rodriguez’ arguments about the illegality of the sentence to be without merit, the judgment and sentence are affirmed.

      . The cited statutory provisions read as follows, with emphasis supplied: 810.08 Trespass in structure or conveyance.—
      (1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.
      (2)(b) If there is a human being in the structure or conveyance at the time the offender trespassed, attempted to trespass, or was in the structure or conveyance, the trespass in a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      810.011 Definitions. — As used in this chapter:
      (1) "Structure” means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.

      Rodriguez’ uninvited and unauthorized entry onto the curtilage, the land around the dwelling, and his refusal to leave after warning, clearly constitute a trespass under the statutes.


author: BARKDULL, Judge.

text:
    George FELDAN, Appellant, v. David E. GOODMAN and Rachel Goodman; Albert Feldan and Bess Feldan, Appellees.
    No. 84-392.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.

      King, Wayner, Leavy & Rabin and Peter Leavy, South Miami, for appellant.
    Goodman, Pleeter & Webber and Neil J. Roult, Hollywood, Stinson, Lyons & Schuette and Wm. Lance Gerlin and Jeffrey B. Lathe, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   BARKDULL, Judge.

Appellant seeks review of two orders of the trial court which dismissed with prejudice, as to all appellees, the petitioner’s petition for revocation of order discharging executors to reopen administration of estate, for trust accounting, and other relief.

In late 1971 a testamentary trust, created under a will, was established with the appellant as life beneficiary of that trust. The trust was funded from the residuary estate assets. On January 16, 1973, after the executors and the appellant had waived a final accounting, the trial court entered an order of discharge of the executors. On or about April 29, 1983, the appellant filed in the probate court a petition styled “petition for revocation of order discharging executors to reopen administration of estate, for trust accounting, and other relief.” The basis of the petition was allegations of malfeasance, conflict of interest and fraud on the part of the executors and on the part of the appellees Albert and Bess Feldan as trustees. The appellees moved to dismiss the petition alleging lack of subject matter jurisdiction and personal jurisdiction, and that the action is barred by the statute of limitations as the action was not brought within one year from date of discharge of the executors. Sections 95.031(2) and 95.11(3), Florida Statutes and Section 734.23 (now section 733.901), Florida Statutes. After hearing on the motions the trial court entered the two orders appealed herein dismissing the petition, as to all the appellees, with prejudice.

The appellant contends that the trial court erred in entering the orders appealed on the grounds, first that his petition alleged facts which would necessitate further administration of the estate under Section 734.26, Florida Statutes (1971) and Florida Rules of Probate and Guardianship Procedures 5.460 and second, the trial court should have preserved the appellant’s right to proceed against the trustees on the trust related causes in the proper tribunal rather than dismissing the trust related causes of action with prejudice.

The fraud alleged as to the estate proceeding was the failure to account for assets of the estate and a misappropriation of funds of the estate without the knowledge of the principal beneficiary of the testamentary trust. Therefore this action should have been considered in the original probate proceeding. See Dacus v. Blackwell, 90 So.2d 324 (Fla.1956).

The dismissal of the petition seeking an accounting from the trustees may have been appropriate but the dismissal should have been without prejudice thereby permitting the petitioner to file an independent complaint pursuant to section 737.205 of the Florida Statutes. Therefore we modify this dismissal to make it without prejudice. The orders under review as they relate to that portion of the petition directed to the executors, be and the same is hereby reversed and the matter is returned to the trial court, probate division, for further proceedings. The portion of the order under review relating to the trustees of the testamentary trust be and the same is affirmed as above modified.

Reversed in part, affirmed in part as modified.

      . Section 737.303(4) Florida Statutes provides for an annual accounting to be rendered by the trustees.

      . If, from the evidence, it is shown that the petitioner was aware at the time he waived his right to a final accounting of the alleged defalcation claim in his petition against the executor, then he should not be accorded relief. See and compare Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960).