author: HUBBART, Judge.

text:
    Jerome STAHL, as personal representative of the Estate of Andrew Stahl, a minor, deceased, for the benefit of Jerome Stahl and Georgia Stahl, as natural parents and survivors of Andrew Stahl, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 81-1497.
    District Court of Appeal of Florida, Third District.
    June 7, 1983.
    Rehearing Denied Oct. 4, 1983.

      Greene & Cooper and Marc Cooper and Sharon L. Wolfe, Donald J. Post, Miami, for appellant.
    Virgin, Whittle & Garbis and Jack M. Sobel, Miami, for appellee.
    Before HUBBART and DANIEL S. PEARSON, JJ., and EZELL, BOYCE F., Jr., (Ret.) Associate Judge.
   HUBBART, Judge.

This is an appeal from a final summary judgment for the defendant in a wrongful death action. The trial court concluded that the defendant’s negligence, if any, was not as a matter of law the proximate cause of the minor decedent’s death herein. We disagree and reverse.

I

The facts of this case, for summary judgment purposes, are as follows. On or about January 20, 1980, Andrew Stahl, a 13-year-old boy, was riding his bicycle to Palmetto Junior High School on a bicycle path built by the defendant Metropolitan Dade County on the north side of S.W. 128 Street in Dade County, Florida. Children like Andrew regularly used the path to ride their bicycles to school, a fact well-known to the defendant Dade County. The path was made of asphalt and was approximately five feet wide; it had been built in 1971 and thereafter received no maintenance. Because of the aforesaid lack of maintenance, the path became very bumpy in places where tree roots began growing underneath. Andrew, on his way to school, sought to avoid one such poorly maintained area which was bumpy and difficult to ride over with a bicycle. He, accordingly, drove off the path onto a parallel grassy area about five feet in width which had trees growing in it, and into the adjoining street where he was immediately struck and killed by an oncoming car. There is testimony that upon entering the grassy area Andrew would have struck one of the trees had he not headed into the street.

Jerome Stahl, Andrew’s father and the personal representative of Andrew’s estate, brought a wrongful death action below against the defendant Metropolitan Dade County alleging negligence in the maintenance of the bicycle path. The defendant, after discovery, developed the above facts, and moved for a summary judgment on the sole ground that “the uncontroverted facts contained in the record indicate that any alleged negligent act or omission of this [defendant was not the proximate cause of the accident sued upon,” [R. 220], relying on Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980). The trial court agreed and entered final summary judgment based on the authority of the Pope ease. The plaintiff appeals.

II

It is the established law of this state that to maintain a cause of action sounding in negligence, as here, the plaintiff must establish three elements. These elements are stated in the cases in slightly varying language and have no particular canonical form; they amount in substance, however, to the following:

(1) The existence of a duty recognized by law requiring the defendant to conform to a certain standard of conduct for the protection of others including the plaintiff;
(2) A failure on the part of the defendant to perform that duty; and
(3) An injury or damage to the plaintiff proximately caused by such failure.

In the instant case, all agree that for summary judgment purposes the first two elements of the plaintiff’s negligence (wrongful death) action are shown on this record, which is to say that genuine issues of material fact are presented as to these elements thereby precluding summary judgment thereon. Holl v. Talcott, 191 So.2d 40 (Fla.1965). It is solely the third element of “proximate cause” which is in dispute in this case. The defendant contended below, and the trial court agreed, that on this record the defendant’s alleged negligent act or omission in failing to maintain the bicycle path in a reasonably safe condition was not, as a matter of law, the “proximate cause” of the death of the plaintiff’s decedent when he was struck by an oncoming car in the adjoining street after having departed from said path. We are therefore required to consult the applicable Florida law on “proximate cause” in negligence actions as applied to the facts presented herein. We do so, however, with a certain degree of caution mindful that “[tjhere is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” W. Prosser, Handbook of the Law of Torts § 41, at 236 (4th ed. 1971).

A

It seems clear at the outset that the “proximate cause” element of a negligence action embraces, at the very least, a causation-in-fact test, that is, the defendant’s negligence must be a cause-in-fact of the plaintiff’s claimed injuries. In this respect, á negligence action is no different from any other tort action as clearly there can be no liability for any tort unless it be shown that the defendant’s act or omission was a cause-in-fact of the plaintiff’s claimed injuries. To be sure, such a showing, without more, is insufficient to establish the “proximate cause” element of a negligence action, but it is plainly a sine qua non ingredient thereof. See e.g., W. Prosser, Handbook of the Law of Torts § 41 (4th ed. 1971).

The Florida courts, in accord with most other jurisdictions, have historically followed the so-called “but for” causation-in-fact test, that is, “to constitute proximate cause there must be such a natural, direct, and continuous sequence between the negligence act [or omission] and the [plaintiff’s] injury that it can reasonably be said that but for the [negligent] act [or omission] the injury would not have occurred.” Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 230 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961), relying on Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, 470 (1915). This has proven to be a fair, easily understood and serviceable test of actual causation in negligence actions, which test is currently in use as part of the Florida Standard Jury charges on this subject in the trial of negligence cases. Fla.Std.Jury Instr. (Civil) 5.1a.

As pointed out by Prosser, however, there is one limited type of case where the “but for” test fails and has not been employed:

“Restricted to the question of causation alone, and regarded merely as a rule of exclusion, the ‘but for’ rule serves to explain the greater number of cases; but there is one type of situation in which it fails. If two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. Two motorcycles simultaneously pass the plaintiff’s horse, which is frightened and runs away; either one alone would have caused the fright. A stabs C with a knife, and B fractures C’s skull with a rock; either wound would be fatal, and C dies from the effects of both. The defendant sets a fire, which merges with a fire from some other source; the combined fires burn the plaintiff’s property, but either one would have done it alone. In such cases it is quite clear that each cause has in fact played so important a part in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all.”
W. Prosser, Handbook of the Law of Torts § 41, at 239 (4th ed. 1971) (footnotes omitted).

This court has, in effect, agreed with this analysis. Brandeis v. Felcher, 211 So.2d 606, 607-08 (Fla. 3d DCA), cert. denied, 219 So.2d 706 (Fla.1968). In these so-called “concurrent cause” cases [where each of the concurrent causes alone could have produced-in-fact the plaintiff’s injury], the Florida courts have abandoned sub silentio the “but for” test and have employed instead a “substantial factor” test for the obvious reason that adherence to the “but for” test in this limited type of case leads to anomalous and unacceptable results. Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441, 445 (Fla.1974); Loftin v. Wilson, 67 So.2d 185, 191 (Fla.1953); General Telephone Co. of Fla. v. Choate, 409 So.2d 1101 (Fla. 2d DCA), review denied, 418 So.2d 1278 (Fla.1982). The “substantial factor” test is stated and explained in Loftin as follows:

“Whether or not the accident would have occurred under the circumstances notwithstanding some act or omission on the part of the railroad company is questionable. Prosser on Torts, p. 322. Of course, the fact of causation is never capable of mathematical proof, since no man can say with absolute certainty what would have occurred if another had acted otherwise. Defendant’s conduct in an action for personal injuries is considered a cause of the event if it was a material and substantial factor in bringing it about. Whether it is such a substantial factor is for the jury to determine, unless the issue is so clear that reasonable men could not differ. Prosser on Torts, p. 324; 2 Restatement of Torts, p. 1159, Sec. 431.” Loftin v. Wilson, 67 So.2d 185, 191 (Fla.1953) (emphasis added).

This test, in turn, is also currently in use as part of the Florida Standard Jury charges on this subject in the trial of negligence cases. Fla.Std. Jury Inst. (Civil) 5.1b. Properly viewed, then, Florida follows the “but for” causation-in-fact test in negligence cases, as modified by the limited “substantial factor” exception applicable only in those concurring cause cases where each of the said concurring causes could have alone produced the plaintiff’s injury.

B

The “proximate cause” element of a negligence action embraces more, however, than the aforesaid “but for” causation-in-fact test as modified by the “substantial factor” exception. Florida courts, in accord with courts throughout the country, have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant’s negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant’s negligence. Plainly, the courts here have found no proximate cause in such cases based solely on fairness and policy considerations, rather than actual causation grounds.

In this connection, no single test fitting all cases has yet been adopted, see generally Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961), but the test most often employed by the courts is the so-called “foreseeability” test. Indeed, it has been said that “[t]he key to proximate cause is foreseeability.” Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977). This test has a multi-faceted content and is stated or applied in a myriad of Florida cases in widely varying contexts, at times without even using the term “foreseeable.” See e.g., 38 Fla.Jur.2d Negligence §§ 30, 33-37, 42-48 (1982), and cases collected therein. The test is virtually impossible to capture in a single formula and plainly has no canonical form. The following leading Florida cases, however, appear to summarize in substance the test as understood under our established law.

“Not every negligent act of omission or commission gives rise to a cause of action for injuries sustained by another. It is only when injury to a person ... has resulted directly and in ordinary natural sequence from a negligent act without the intervention of any independent efficient cause, or is such as ordinarily and naturally should have been regarded as a probable, not a mere possible, result of the negligent act, that such injured person is entitled to recover damages as compensation for his loss. Conversely, when the loss is not a direct result of the negligent act complained of, or does not follow in natural ordinary sequence from such act but is merely a possible, as distinguished from a natural and probable, result of the negligence, recovery will not be allowed. Seaboard Air Line Ry. Co. v. Mullin, 70 Fla. 450, 70 So. 467, L.R.A. 1916D, 982, Ann.Cas.1918A, 576. ‘Natural and probable’ consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. ‘Possible’ consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act. See 38 Am.Jur. 712, Negligence, Sec. 61.”
Cone v. InterCounty Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla.1949). “The Florida courts, as well as a great majority of other jurisdictions, have incorporated into their definitions of proximate cause certain modifying factors or tests which have been formulated to help determine whether proximate cause or legal cause is present in a particular case. The principal tests are the following: (a) ‘Foreseeability’, by which, even though the defendant has been negligent there can be no recovery for an injury that was not a reasonably foreseeable consequence of his negligence, although ... the particular injury or the manner in which the hazard operated need not have been clearly foreseeable....” Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 229 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961) (footnotes omitted).

Plainly, the “foreseeability” test finds a particularly consistent application in that large group of eases where, as claimed here, a plaintiff’s injury is eaused-in-fact by the defendant’s negligence and, in addition thereto, by other “intervening causes” independent of said negligence. W. Prosser, Handbook of the Law of Torts § 44 (4th ed. 1971). “It is noted that the Florida Supreme Court has applied the foreseeability test to the independent intervening cause [cases] and has reasoned that the intervention of independent intervening causes does not break the causal connection if the intervention of such forces was itself probable or foreseeable.” Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227, 230 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961) (footnote omitted). In this connection, the Florida Supreme Court has recently restated and explained the “foreseeability” test in the context of an “intervening cause” case as follows:

“While the holding of the courts below that McNealy’s conduct was the sole cause may be seen as correct from the standpoint of physical causation, the question of whether to absolve a negligent actor of liability is more a question of responsibility. W. Prosser, Law of Torts, § 44 (4th Ed.1971); L. Green, Rationale of Proximate Cause, 14270 (1927); Comment, 1960 Duke L.J. 88 (1960). If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an inter-veiling cause is foreseeable is [ordinarily] for the trier of fact. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Exchange Bank of St. Augustine v. Florida Nat’l Bank of Jacksonville, 292 So.2d 361 (Fla.1974); Cruz v. Hundley, 371 So.2d 698 (Fla. 3d DCA 1979); Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972) cert. denied 275 So.2d 14 (Fla.1973); Savarese v. Hill, 128 So.2d 775 (Fla. 3d DCA 1961).
Another way of stating the question whether the intervening cause was foreseeable is to ask whether the harm that occurred was within the scope of the danger attributable to the defendant’s negligent conduct. A person who creates a dangerous situation may be deemed negligent because he violates a duty of care. The dangerous situation so created may result in a particular type of harm. The question whether the harm that occurs was within the scope of the risk created by the defendant’s conduct may be answered in a number of ways.
First, the legislature may specify the type of harm for which a tortfeasor is liable. See Vining v. Avis Rent-A-Car, above; Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976) cert. denied 348 So.2d 946 (Fla.1977). Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct. See Homan v. County of Dade, 248 So.2d 235 (Fla. 3d DCA 1971). Finally, there is the type of harm that has so frequently resulted from the same type of negligence that ‘ “in the field of human experience” the same type of result may be expected again.’ Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla.1961) (emphasis in original).”
Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522-23 (Fla.1980) (emphasis added).

The “foreseeability” test, in turn, is currently in use as part of Florida Standard Jury charges on this subject in the trial of negligence cases. Fla.Std. Jury Instr. (Civil) 5.1c.

The question here, it should be emphasized, is not whether the plaintiff’s injury was caused-in-fact by the defendant’s negligence, but instead whether said injury, given actual causation, was a foreseeable consequence of the danger created by the defendant’s negligent act or omission. Here the courts deal with fairness and policy considerations, either stated or unstated, so as to relieve defendants in appropriate cases of liability for highly unusual, extraordinary, or bizarre consequences. As was candidly stated in Mozer v. Semenza, 177 So.2d 880, 883 (Fla. 3d DCA 1965):

“It is notorious that proximate cause is in most cases what the courts will it to be and that it is at best a theory under which the courts ... shield from liability those that the courts find should not in reason and logic be responsible for a given result.”

Given the debatable nature of proximate cause issues in most such cases, it is not surprising that the courts have held that such issues are generally for juries to decide using their common sense upon appropriate instructions, although occasionally, when reasonable people cannot differ, the issue has been said to be one of law for the court. Helman v. Seaboard Coast Line R.R., 349 So.2d 1187, 1189 (Fla.1977); Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA), cert. denied, 304 So.2d 450 (Fla.1974).

Ill

Turning now to the instant ease, we have no difficulty in concluding that genuine issues of material fact are presented on this record as to the element of “proximate cause” herein. The trial court was, accordingly, in error in concluding that as a matter of law this element was successfully negated on this record.

A

Plainly, the defendant Dade County’s negligence in failing to properly maintain the bicycle path in question at the point where Andrew Stahl, the plaintiffs decedent, departed from the path was a cause-in-fact of the said decedent’s death. Utilizing the “but for” test of actual causation, it is clear that “but for” the defendant’s negligence herein, Andrew would not have been forced off the bicycle path, would not have been propelled onto an adjoining grassy area where menacing trees were located, would not have driven onto the adjoining street to avoid hitting the said trees, and would not have been struck and killed by an oncoming car. “But for” the defendant’s negligence in the maintenance of the bicycle path, this tragic sequence of events would never have occurred. At the very least, a genuine issue of material fact is presented making a summary judgment inappropriate here.

It should be noted that this is not a “concurring cause” case where each of several causes could alone have produced-in-fact the death of the plaintiff’s decedent. The negligent maintenance of the bicycle path, the act of the plaintiff’s decedent in driving into the street, and the act of the oncoming car in striking the plaintiff’s decedent could not, acting individually and independently of one another, have struck and killed the said plaintiff’s decedent; all of these forces combined in sequence to lead to the decedent’s death and all arguably are a cause-in-fact to the said death under the “but for” test. In short, the “substantial factor” exception is inapplicable here. See Seaboard Air Line Ry. v. Watson, 94 Fla. 571, 113 So. 716 (1927) (syllabus by ct., no. 10).

B

Given, then, a proper showing of causation-in-fact in this case, we move on to determine whether the car/bicyele collision herein was a reasonably foreseeable consequence of the defendant’s alleged negligent maintenance of the bicycle path herein. Here, too, we think that genuine issues of material fact are presented by this record. We think that a reasonable jury on these facts could find that the negligent maintenance of the bicycle path would likely force a young bicyclist such as Andrew Stahl off the path to avoid a spill, across an adjoining grassy area and onto the street where he might be hit by a car. Stated differently, we do not, as a matter of law, see this as a highly unusual, extraordinary or bizarre occurrence flowing from the negligent omission herein. From our common experience, we know that a bicyclist has a certain momentum as he travels along a bicycle path. Upon discovery of a hazardous condition on the path he, very likely, may be forced to detour off the path onto whatever adjoins the path without being able to stop. Where, as here, the adjoining strip is a grassy area approximately five feet in width with menacing trees growing therein, he may very well be forced to drive into the adjoining street to avoid hitting the trees and is likely thereafter to be hit and killed by an oncoming car. True, the child’s action in this case in driving into the street and the oncoming car’s action in striking the child represent intervening causes-in-fact of the child’s death in this case. Neither of these causes, however, can be said to be unforeseeable as a matter of law because plainly they could be reasonably expected from the defendant’s initial negligence herein. At any rate, we think this is a question of fact for the jury on this record and was not a proper basis for entering a summary judgment.

1

By this discussion, we do not wish to imply that the child herein could not be found comparatively negligent by the jury in this tragic accident. Perhaps the child was going too fast, perhaps he was not keeping a proper lookout, perhaps he was driving the bicycle in a careless manner. All these actions might very well have contributed to the accident herein and, if so, could reduce the amount of the sustained damages herein. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). These acts of comparative negligence, however, cannot be seen as unforeseeable intervening causes and therefore cannot bar the negligence action herein on no “proximate cause” grounds. Surely our common experience tells us that bicyclists, especially children, ride on bicycle paths in these arguably unsafe ways resulting in accidents. We, accordingly, cannot say as a matter of law that the child’s acts of comparative negligence, if any, were highly unusual, extraordinary, bizarre or beyond any fair assessment of the scope of danger created by the defendant’s negligence.

2

It is urged, however, that our decision in Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980), requires the entry of a summary judgment for the defendant herein on the proximate cause issue. We cannot agree.

In Pope, we held that the defendant’s negligence, if any, in allowing certain vehicles to block a pedestrian’s passage alongside the shoulder of a road did not, as a matter of law, proximately cause the plaintiff’s pedestrian’s injuries sustained when the plaintiff pedestrian left the said shoulder to avoid the parked vehicles, went onto the adjoining road and was struck by an oncoming car. We concluded, in effect, that it was not a reasonably foreseeable consequence of the defendant’s negligence that the plaintiff pedestrian would react in such an unusual manner. The plaintiff pedestrian plainly had no momentum problem as she travelled on foot alongside the road and could have easily come to a complete stop upon encountering the subject vehicles on the shoulder; in fact, that is what one, as a matter of law, would reasonably expect. Her decision thereafter to step onto the road without looking, whereupon she was hit by a car, was an unexpected, highly unusual event, and therefore an unforeseeable intervening cause for which the defendant was not responsible. There was causation-in-faet in that case, but the result was considered too extraordinary and too unforeseeable to be considered a proximate cause of the defendant’s negligence.

The instant case, we think, presents a significantly different fact pattern. We deal here with a bicyclist who, unlike a pedestrian, has certain momentum problems as he traverses a bicycle path. He cannot be expected to stop on a dime as a pedestrian can. Upon encountering a hazard along his way, the bicyclist, as here, may very well have to detour quickly onto an adjoining street without being able to stop. Not so a pedestrian. For that reason, Pope cannot control the result here.

3

Beyond that, we think the bicyclist here is more like the motorist in McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969), cert. discharged, 232 So.2d 789 (Fla.1970). In that case a defendant negligently parked his car in such a manner that it partially protruded onto the street blocking in part a lane of traffic. An oncoming motorist was thereafter forced to detour around the defendant’s car and in so doing struck a plaintiff pedestrian. We concluded that it was a jury question as to whether the plaintiff pedestrian’s injuries were proximately caused by the defendant’s negligent act in parking his car. A car has certain momentum problems when in motion and cannot be expected to stop instantly; it was, therefore, held foreseeable from the defendant’s negligence in parking his car that an oncoming motorist would be forced to detour around the defendant’s car without stopping and might, in so doing, injure a crossing pedestrian. By analogy, a bicyclist is the same here for proximate cause purposes as a motorist. Both have momentum problems when in motion and both may be expected, as a reasonably foreseeable consequence of a hazard being placed in their path, to be forced by the hazard to detour from their path without stopping after which an accident may immediately ensue. As there was proximate cause shown in McCabe, so we think that proximate cause is also shown here.

4

A different case, however, would be presented if the child herein had chosen to bicycle in the adjoining street rather than traverse the subject bicycle path on the asserted basis that the path was so poorly maintained as to be unusable as a bicycle path, and thereafter had been hit and killed by the oncoming motorist. We agree with Judge Cowart in his concurring opinion in Puhalski v. Brevard County, 428 So.2d 375 (Fla. 5th DCA 1983), that in such a case there would be no liability as a matter of law because the county would be under no duty, as claimed, to provide a bicycle path at that location which was usable to the bicycling public. The claim would fail, then, as Judge Cowart correctly points out, on no duty or no negligence grounds, rather than no proximate cause grounds.

The instant case is significantly different. The plaintiff’s claim here is not that Dade County breached its duty in failing to provide a usable bicycle path; the claim is that Dade County failed to maintain what was otherwise a perfectly usable path. Although Dade County did not have to provide a usable bicycle path at all, at least not at this location, once having done so it had a duty to properly maintain the path so as not to create, as here, unreasonable risks of harm to bicyclists using the path. As all concede, at least for summary judgment purposes, that duty was breached by Dade County in this case.

IV

In sum, then, we conclude that the “proximate cause” element of the plaintiff’s negligence action herein was not negated on this record as a matter of law. The summary judgment under review is therefore reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

ON MOTION FOR CLARIFICATION

The plaintiff Jerome Stahl has filed a motion for clarification in which he urges that the cost judgment in this case should also be reversed in view of our reversal of the final summary judgment herein. We entirely agree and accordingly reverse the cost judgment assessed below against the plaintiff Jerome Stahl. See § 57.041, Fla. Stat. (1981).

The defendant Dade County has also filed a motion for rehearing in which it takes issue with certain of the facts as stated in the court’s opinion. We have again reviewed the record in this case and conclude that the evidence adduced during discovery tends to support, and certainly does not preclude a jury from reasonably inferring, the facts which are relied on in the court’s opinion. For summary judgment purposes, then, this is the statement of facts which we are bound by on this appeal; the fact that there may be, as urged, conflicting evidence and inferences in this record cannot change this result. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Moreover, the contrary facts and inferences pointed to in the record by the defendant, although relevant on the proximate cause issue, tend more appropriately to show that the plaintiffs decedent was comparatively negligent in this case in that (a) he may well have been previously aware of the poor condition of the bicycle path complained of in this case, but “assumed the risk” and rode on the path anyway, and (b) he may well have traveled a quarter of a block in the street before being struck by the oncoming car. Even if these facts be true, the jury could still find for the plaintiff on the proximate cause issue by concluding that the plaintiff’s decedent was comparatively negligent, but that such negligence in a minor child was entirely foreseeable and thus not an independent, intervening cause of the accident. We are therefore not convinced that we have misread the record in any sense in deciding this case. The motion for rehearing is denied.

      . The above formulation largely tracks the language of the following cases: Clark v. Boeing Co., 395 So.2d 1226, 1228 (Fla. 3d DCA 1981); Blackton Building Supply Co. v. Garesche, 383 So.2d 250, 251 (Fla. 5th DCA 1980); Welsh v. Metropolitan Dade County, 366 So.2d 518, 521 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla.1979); Angell v. F. Avanzini Lumber Co., 363 So.2d 571, 572 (Fla. 2d DCA 1978); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121, 123 (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977); Smiley v. Court, 243 So.2d 643, 646 (Fla. 4th DCA 1971). The first element, however, has been modified to conform to the language found in Simon v. Tampa Electric Co., 202 So.2d 209, 213 (Fla. 2d DCA 1967), following W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 30 (4th ed. 1971). As a whole, the stated formulation is in substantial accord with RESTATEMENT (2d) OF TORTS § 281 (1965) and W. PROSSER, supra at § 30.

      .The Florida cases often use the terms “but for” and “without which” interchangeably in formulating the “but for” test, but the meaning here is precisely the same, with “but for” being the preferred terminology. Sardell v. Malanio, 202 So.2d 746, 747 (Fla.1967) (“but for”); Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26, 27 (1939) (“without which”); Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, 470 (1915) (“without which”); General Telephone Co. of Fla. v. Choate, 409 So.2d 1101 (Fla. 2d DCA), review denied, 418 So.2d 1278 (Fla.1982) (“but for”); Bryant v. School Board of Duval County, 399 So.2d 417, 420 (Fla. 1st DCA 1981), aff’d in part, rev’d in part, sub. nom., Rupp v. Bryant, 417 So.2d 658 (Fla.1982) (“without which”); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978) (“but for”); General Telephone Co. of Fia. v. Mahr, 153 So.2d 13, 16-17 (Fla. 2d DCA 1963), cert. dismissed, 163 So.2d 285 (Fla.1964) (“without which”); Smith v. City Products Corp., 147 So.2d 590 (Fla. 1st DCA 1963), cert. dismissed, 155 So.2d 696 (Fla.1963) (“without which”); Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA 1961) (“without which”).

      . Fla.Std. Jury Instr. (Civil) 5.1a states:
      “a. Legal cause generally:

      Negligence is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the negligence, the [loss] [injury] [or] [damage] would not have occurred.”

      . “The Florida Supreme Court seems to have modified the traditional ‘but for’ test to the more modern ‘substantial factor’ test in cases with separate concurrent causes of the injury.” 409 So.2d at 1104 n. 2.

      . Fla.Std. Jury Instr. (Civil) 5.1b states:
      “b. Concurring cause:

      In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be the only cause. Negligence may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such [loss] [injury] [or] [damage].”
      It should be noted, however, that this instruction is not limited to cases where the “but for” test arguably fails as the instruction is plainly applicable as well to a broader class of concurring cause cases. See e.g., Goodman v. Becker, 430 So.2d 560 (Fla. 3d DCA 1983).

      . For a representative sampling of Florida cases applying the “foreseeability” test to intervening cause cases, see: Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976); National Airlines, Inc. v. Edwards, 336 So.2d 545 (Fla.1976); Overby v. Wille, 411 So.2d 1331 (Fla. 4th DCA), review denied, 419 So.2d 1201 (Fla.1982); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977); Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972), cert. denied, 275 So.2d 14 (Fla.1973); Mozer v. Semenza, 177 So.2d 880 (Fla. 3d DCA 1965); General Telephone Co. of Fla., Inc. v. Mahr, 153 So.2d 13 (Fla. 2d DCA 1963), cert. dismissed, 163 So.2d 285 (Fla.1964); Pope v. Pinkerton-Hays Lumber Co. 120 So.2d 227 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961).

      . Fla.Std. Jury Instr. (Civil) 5.1c states:
      “c. Intervening cause:

      * Do not use the bracketed ñrst sentence if this charge is preceded by the charge on concurring cause:

        * [In order to be regarded as a legal cause of [loss] [injury] [or] [damage], negligence need not be its only cause.] Negligence may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] some other cause occurring after the negligence occurs if [such other cause was itself reasonably foreseeable and the negligence contributes substantially to producing such [loss] [injury] [or] [damage] [or] the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the negligence and the negligence contributes substantially to producing it].”

      . “Finally, the question of whether defendant’s negligence was the proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question.” 349 So.2d at 1189 and authorities collected.

      . This does not mean, however, that Fla.Std. Jury Instr. (Civil) 5.1b should be omitted from the court’s jury charge in this case as the instruction may very well be appropriate for other reasons. See note 5 supra.

      . Prosser takes a contrary view on such cases and cites considerable authority to support his position. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 44 at 274 (4th ed. 1971). Our holding here would seem to be a decided minority view. See also Pope v. Cruise Boat Co., 380 So.2d 1154 (Schwartz, J., concurring). It may also be dicta as the court appears to conclude that no negligence was shown in the case in any event; indeed, this was the sole basis on which Judge Schwartz concurred with the majority.


source: Caselaw Access Project

author: FERGUSON, Judge. SCHWARTZ, Chief Judge

license: Public Domain

text:
    Demetrius Octavius GREEN, a minor, By and Through his Guardian of the Property, Edward P. SWAN, Esq., Appellant, v. ED RICKE AND SONS, INC., a Florida corporation, Appellee.
    No. 82-1314.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Oct. 13, 1983.

      Feldman, Abramson, Smith, Magidson & Levy and Donald Feldman, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard Sherman, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, a three-year old child, initially brought suit against Metropolitan Dade County and Florida Gas Company for injuries received when he fell into a deep puddle of boiling water which was discharged from a faulty water heater. That suit was settled. This action was then instituted against the general contractor, Ed Ricke and Sons, Inc. which installed the water heaters, and its insurer United States Fidelity and Guaranty Company, on grounds that the defect which caused the leakage was due to negligent installation.

On a pretrial motion the court entered an order in limine requiring that no party, attorney, witness, or anyone else make known to the jury that there was a prior lawsuit and/or settlement between the plaintiffs and other defendants arising out of the subject accident. Appellee denies the allegations that it violated the order, but contends that even if the allegations were true, the violative statements were innocuous and certainly not so prejudicial as to taint a five-day trial. We consider a few of those violations:

Q. [counsel for appellee] It is during that initial suit that you gave your deposition twice?
A. [Mr. Hargis] Yes.

On another occasion a witness was questioned:

Q. [counsel for appellee] Sir, who first retained you to review some building plans, a contract between HUD and—
Plaintiff’s counsel: Excuse me one second before we go any further.

At a side-bar conference, appellee’s counsel conceded that he was eliciting from the witness the fact that he was retained as an expert by a prior defendant. The court sustained appellant’s objection and admonished appellee’s counsel for a second time. Nonetheless, appellee had put before the jury both the fact of a prior lawsuit and the fact that the county, through its agency HUD, was involved.

In closing argument the prejudice was completed:

By counsel for appellee: Now, there’s going to be some other person responsible. I would like for you to ask them some questions. I would like for you to ask him [w]hy Dade County is not a Defendant in this litigation.
* * * ⅜8 * *
Who’s blaming everybody? Mr. Feldman. Who should be here? Dade County.
Mr. Wicker has told you that....
Marr Plumbing is not here now because Mr. Marr died....
If the housing authority [county] was [sic] here for the design of the project, they would be saying the same thing we are, but they wouldn’t be saying the same thing if they were here [for] maintenance.

The cumulative errors complained of here were, as described by Judge Pearson specially concurring in Sharp v. Lewis, 367 So.2d 714, 715 (Fla. 3d DCA 1979), of the “machine gun” variety — a series of errors that well may have taken place over a long period of time but which, when viewed from afar, provide a clear “design”. These kinds of errors may be reversible, he opined, even though dispersed throughout a long trial, if they are so strategic in their nature and placement that their cumulative effect upon the jury can be measured. See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Groebner v. State, 342 So.2d 94 (Fla. 3d DCA 1977). The “empty chair” arguments in this case violated not only the pretrial order, but also the spirit of Section 768.041(3), Florida Statutes (1981), which provides:

The fact of ... a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

In Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982), we found error, where appellees had brought to the jury’s attention on numerous occasions the fact that certain persons no longer present in the lawsuit had previously been defendants, in violation of Section 768.041(3), even though neither the fact of settlement nor the terms of the agreement were mentioned. By less flagrant but just as effective means, the same was accomplished here. Dade County was not a party to the lawsuit because it had been released, and it was improper to make its absence a feature of the trial.

Appellee’s second response is that the errors were waived owing to the nature of appellant’s objection and motion for mistrial. Appellant’s last motion for mistrial was made during closing argument. With the court’s permission, counsel was permitted to elucidate the grounds for the motion after the jury had retired:

Mr. Feldman: Your honor, comes now the Plaintiff and moves that this Honorable Court grant a mistrial and reserve ruling thereon until the jury completes their deliberations.
The grounds of the mistrial being that Your Honor has admonished counsel that there be no reference to a lawsuit against Dade County....
The Court: As far as I’m concerned, the empty chair Defendant is a proper argument....

Motion denied.

Specifically, appellee argues that, by asking the court to “reserve ruling [on the motion for mistrial] until the jury completes their deliberations”, appellant’s counsel had, in the same breath, both made, then waived, the error. We disagree. Appellant merely invoked the court to do what it was already empowered to do in the face of a motion for mistrial — permit the jury to completely discharge its functions before declaring a mistrial. Cf. Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA), rev. denied, 392 So.2d 1373 (Fla.1980); Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975); Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965). We see no reason why it should make a difference on the question of waiver whether the trial court has reserved ruling at the suggestion of the party moving for a mistrial, rather than at its own instance.

More to the point, there could not have been a waiver where, as was the case here, the motion to reserve ruling was unequivocally denied and the motion for mistrial was considered on its merits at the same time and also denied.

Reversed and remanded for a new trial.

SCHWARTZ, Chief Judge

(dissenting).

While I agree that defendant’s final argument was improper, I believe that the majority’s conclusion that the issue was preserved for appellate review is completely wrong. No matter what it was called, a “motion for mistrial,” coupled with a request that ruling be postponed until after the verdict so that counsel can tell if he won or lost, is not a motion for mistrial, which requires that the trial be stopped before verdict and begun again, at all; it is a contingent announcement that, if it turns out that the jury finds against him, counsel will move for a new trial on the asserted ground — which is what he did. In turn, the trial judge’s disposition of that non-existent “motion” was simply an advisory statement that if the jury so finds and plaintiff’s counsel so moves, he would deny the motion — which is what he did, too. In sum, there is no such thing as a reserved motion for mistrial, which is a classic contradiction in terms. The plaintiff therefore did not conform with the requirement that a “real” motion for mistrial be made below to raise such a question on appeal. E.g., H.I. Holding Co. v. Dade County, 129 So.2d 693 (Fla. 3d DCA 1961), cert. denied, 133 So.2d 646 (Fla.1961).

Viewed from a broader perspective, the very reasons for requiring contemporaneous and assertive preservation of error are (a) to obviate the necessity of a new trial (and perhaps another appeal) which would be required if the alleged error is presented only after the first one had already been completed, Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); and (b) to preclude an attorney from sandbagging the court and his opponent by postponing his motion on the basis of how he believes the trial is going, and, even more, by how it comes out. State v. Cumbie, 380 So.2d 1031 (FIa.1980); Murray-Ohio Manufacturing Co. v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980). The presentation and acceptance of the present contention on appeal, with the result that a new trial must be conducted, runs directly contrary to each of these purposes. It is therefore clear that the motion, statement, or whatever made by plaintiff’s counsel did not preserve the issue for review, Earl Hollis, Inc. v. Fraser Mortgage Co., 403 So.2d 1038 (Fla. 4th DCA 1981), and that the issue is controlled by the host of cases which hold that a non-fundamental error in final argument is deemed to be waived when, as here, it is effectively presented for the first time in a post-verdict motion for new trial. Sears, Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983), and cases cited. In this case, when the waiver was actually an express, rather than only an implied one, it is all the more clear that affirmance is required.

      . On this point, which is purely academic, we analogize from the cited cases which involve motions for directed verdict. If a trial court reserves ruling on a motion for mistrial until after a jury verdict, and then grants a new trial on the grounds asserted in the motion for mistrial, that new trial order is reviewable on appeal. If it is determined by the reviewing court that the trial court erred in granting a new trial and that the jury verdict should stand, all concerned would have been spared the time and expenses of a second trial.
      A stronger argument could be made that a movant for a mistrial has waived the error complained of where the court, on the mov-ant’s motion, reserves ruling on the motion for mistrial until after a jury verdict, then denies it. The effect is, it might be argued, as if the motion had been made and then withdrawn. Unless the court has committed itself to granting the motion for mistrial, see Dysart v. Hunt, 383 So.2d at 260 n. 1, the request to reserve ruling is a gamble at best.

      . We respectfully disagree with the majority holding in Earl Hollis, Inc. v. Fraser Mortgage Co., 403 So.2d 1038 (Fla. 4th DCA 1981) to the extent that it would require a different result, and agree with the dissenting opinion of Chief Judge Letts.

      . At oral argument, counsel readily and forthrightly conceded that he acted as he did because he simply did not want a mistrial (this was the second actual trial of this case within the week; the first one had really mistried), much preferring (and expecting) to receive a jury verdict in his favor without trying the case still again. While this candor is indeed commendable, the fact remains that trying cases requires that chances be taken and decisions be made. Indeed, the accepted definition of a waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). By his own admission, counsel did exactly that by knowingly giving up his right to a mistrial to gain the hoped-for advantage of a verdict for his client in the present one. The plaintiff should be held to the consequences of his reasoned, if ultimately incorrect, decision in that regard. Finally, the rule against taking two bites at the apple applies just as much when two obvious sets of teeth marks in the Macintosh are voluntarily displayed, as when little nibbles are kept from our view.

      . It is on this basis that the Dysart, Freeman and Ditlow cases, cited by the court, are totally inapplicable. Each of them involves a question, such as the sufficiency of the evidence to support a verdict, which would be settled, one way or the other, by a single verdict or a single appeal. In those situations, it is appropriate for the trial court, as a matter of proper judicial administration, to reserve ruling to see if the jury will itself resolve the issue. This practice has no pertinence whatever to what is or should be a motion for mistrial, which by definition requires a new proceeding if not timely asserted and ruled upon — just as the majority has mandated here.

      . While, for obvious reasons, I prefer the majority holding in the Earl Hollis case, I point out that even the dissent of the redoubtable Judge Letts does not support the court’s decision here. It states that no motion for mistrial was either made or required, citing earlier decisions involving final arguments which were fundamentally improper. I do not read Judge Ferguson’s opinion to hold that the remarks in this case fall into that category, as, in fact, they do not.

        .Ibid.

      . I believe the majority opinion is in conflict not only with the Earl Hollis case, as it acknowledges, but with our very recent decision in Sears, Roebuck and the numerous cases it relies upon.

      . Note 1, supra.


author: COBB, Judge.

text:
    Robert E. KELLY, Appellant, v. AMERICAN PRECISION INDUSTRIES, INC., Appellee.
    No. 82-1428.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1983.
    Rehearing Denied Oct. 4, 1983.
    Herbert H. Hall, Jr., of Maher, Over-chuck, Langa, Cate, Lobb & Webb, P.A., Orlando, for appellant.
    Mitchell J. Frank of Rogers & Dowling, P.A., Orlando, for appellee.
   COBB, Judge.

This appeal challenges the entry of a summary judgment discharging American Precision Industries, Inc. (API), as a defendant below. The basis of the judgment was that API, as a successor corporation, did not assume the liabilities of its predecessor, Truck Equipment Co., Inc. (TEC). Pri- or to the sale of all of its stock to API in January, 1969, TEC manufactured and delivered an allegedly defective garbage truck. Moving parts of the trash compactor on this truck amputated the hand and lower arm of the plaintiff, below, Robert E. Kelly, who worked on the truck.

The facts adduced before the trial court, as construed most favorably to appellant, showed that at the time API purchased all of the stock of TEC, an API vice-president was placed in charge of the wholly-owned subsidiary and the API treasurer also became treasurer of TEC. Both the vice-president and the treasurer remained on the API payroll and under the supervision of the API corporate directorship. API handled all insurance, accounting, payroll and bill payments for TEC.

After three years of running TEC, API sold all of the TEC physical assets to Southern Industries in December, 1971. The proceeds of this sale went entirely to API; TEC was left a corporate shell with no assets, no employees, no property, and no active business operation.

In a federal court suit instituted by API concerning payment from Southern for the TEC assets, API, as plaintiff, alleged that it was the “sole stockholder of and it controlled and operated (TEC) as its wholly-owned subsidiary.” TEC was not a party to the action.

The issue on this appeal is whether or not API, under these facts and as a matter of law, is insulated from liability for the alleged negligence of TEC, which occurred prior to the stock purchase. We disagree with the trial judge’s determination, and reverse. That determination, according to both parties on appeal, apparently was based on the trial court’s reading of the Florida Supreme Court case of Bernard v. Kee Mfg. Co., Inc., 409 So.2d 1047 (Fla.1982).

In Bernard, the plaintiff brought an action against Kee Manufacturing Co., Inc. (Kee, Inc.), claiming that a lawnmower manufactured and sold by the predecessor to the present company, Kee Manufacturing Co., in 1967, caused an injury in 1976. Kee, Inc., was incorporated in 1972, when it purchased the assets of Kee Co. from the owner. The assets purchased included the manufacturing plant, the inventory and the right to use the company name. The previous owner had no interest in the new company, and Kee, Inc., assumed no liabilities or obligations of its predecessor. Kee, Inc., continued to manufacture lawnmowers, maintaining the same factory personnel and using the same trade name — in essence, the entire manufacturing process was effectively continued, but under a new owner and management. 409 So.2d at 1048. The present company provided replacement parts for the subject mower, and in its brochures stated that it had been manufacturing lawnmowers since 1948.

The trial court granted Kee, Inc.’s motion for summary judgment, which was affirmed by the Second District, at 394 So.2d 552 (Fla. 2d DCA 1981). The Second District refused to consider the financial responsibility of the predecessor in determining liability of a successor, thus creating conflict with the earlier case of Kinsler v. Rohm Tool Corp., 386 So.2d 1280 (Fla. 3d DCA 1980).

The Supreme Court affirmed the Second District, beginning its analysis by stating the traditional corporate law rule, which it adopted, which does not impose the liabilities of the selling predecessor upon the buying successor company unless: (1) the successor expressly or impliedly assumes obligations of the predecessor; (2) the transaction is a de facto merger; (3) the successor is a mere continuation of the predecessor; or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor. 409 So.2d at 1049.

The court refused to extend product liability to successors beyond the traditional rule, claiming that small corporations would face financial disaster from imposition of liability for their predecessors’ products. The court stated that such liability would cause corporate acquisitions to be discouraged for fear of being held liable, and would lead to fewer corporations being sold and more being forced into liquidation proceedings. This, the court felt, would lead to more centralized manufacturers, and less small business enterprises.

The court also stated further justification for not extending liability to the corporate successor as follows:

Extending liability to the corporate successor is not consistent with at least one major premise of strict liability, which is to place responsibility for a defective product on the manufacturer who placed that product into commerce. The corporate successor has not created the risk, and only remotely benefits from the product. The successor has not invited usage of the product or implied its safety. Since the successor was never in a position to eliminate the risk, a major purpose of strict liability in modifying a manufacturer’s behavior is also lost.

409 So.2d at 1050. The court held that the traditional corporate.law rule would apply, without regard to the financial responsibility of the predecessor in deciding the successor’s liability, disapproving in part Kinsler.

Kelly contends that Bernard, in which only the assets of the predecessor corporation were purchased, is inapplicable to the instant case, wherein API purchased all of the stock of TEC, then stripped it of all assets, the benefit thereof going solely to API, not TEC. In effect, Kelly is arguing the de facto merger exception to the traditional corporate law rule, which exception was expressly recognized in Bernard. Bernard at 1049.

The act of a parent corporation in stripping a subsidiary corporation for the exclusive benefit of the parent gives rise to liability on the part of the parent, as was expressly recognized in Unijax, Inc. v. Factory Insurance Assn., 328 So.2d 448 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976). Therein, it was held that the corporate veil could be pierced to go against a stockholder/parent corporation operating a subsidiary as a “mere instrumentality” when there exists:

(a) Control by the parent to such a degree that the subsidiary has become a mere instrumentality.
(b) Fraud or wrong by the parent through its subsidiary, e.g., ... stripping the subsidiary of its assets....
(c) Unjust loss or injury to the claimant such as insolvency of the subsidiary.

328 So.2d at 454.

Unijax, in allowing the tracing of corporate assets on these enumerated bases, is consistent with the reasoning of a number of prior Florida Supreme Court cases: see, e.g., Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973); Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21 (Fla.1955); Mallory S.S. Co. v. Baker & Holmes Co., 117 Fla. 196, 157 So. 504 (1934); Beach v. Williamson, 78 Fla. 611, 83 So. 860 (1920).

In the instant case, the three elements of the Unijax test are met, and TEC can be seen as a “mere instrumentality” of API, allowing for liability to lie against API.

The summary judgment entered below is reversed, and this cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: COWART, Judge. SHARP, Judge, FRANK D. UPCHURCH, Jr., Judge,

text:
    James Joseph ERP, Appellant, v. Lillian Knapp CARROLL, Appellee.
    No. 81-1405.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.
    Rehearing Denied Sept. 27, 1983.

      Seymour H. Rowland, Jr., Ocala, for appellant.
    John H. Piccin of Musleh, Piccin, Atkins & Krehl, Ocala, for appellee.
   COWART, Judge.

This case involves the proper function and scope of impeachment of an adverse party when called as a witness under Florida Rule of Civil Procedure 1.450(a) and whether, for one wrongful arrest, recovery can be had for separate damages under both the theory of false imprisonment and the theory of malicious prosecution.

Appellee, hereinafter called plaintiff, sued appellant, hereinafter called defendant, for compensatory and punitive damages for malicious prosecution, false imprisonment, slander, and intentional infliction of emotional distress. At trial, during the presentation of evidence in the plaintiff’s case in chief, the plaintiff called two witnesses, who, over objection, testified that the defendant’s reputation in the community for truth and veracity was bad.

During the defendant’s case in chief the defendant did not take the stand in his own behalf and called but one witness, Deputy Sheriff Caraway, who testified only about his own actions on May 10, 1978, in talking with a Mr. Ramputi and in arresting the plaintiff based on information he received from Mr. Ramputi and from the plaintiff and her husband. When Deputy Caraway was asked by defense counsel if he had a conversation with the defendant on May 10, 1978, Deputy Caraway answered, “No, sir, I have not met the gentleman.” Plaintiff’s counsel on cross-examination asked Deputy Caraway, “You have never seen Mr. Erp before and you really wouldn’t know whether he was one of the people there [at the scene of the arrest] or not, would you?” Answer, “No, sir.”

On rebuttal plaintiff called the defendant as a witness on behalf of the plaintiff and began examining him about his actions outside the presence of the arresting officer and involving nothing in anyway inconsistent with the testimony of the arresting officer. The defendant in fact corroborated Deputy Caraway’s testimony saying, “I never really seen [sic] Officer Caraway, never talked to him” and “I told you and so did Mr. Caraway that I’ve never talked to Mr. Caraway ... it was a sheriff or police, but I never talked to Deputy Sheriff Caraway.” When plaintiff’s counsel asked the defendant about the defendant telling “the previous jury in this case you've been convicted of — ” defendant’s counsel objected on the ground that the plaintiff’s testimony was in no way in rebuttal to that of Officer Caraway saying, “They’re putting this in solely for the purpose of asking him how many times he’s been convicted of a crime and that’s inflammatory — [and] should not be injected in this trial.” At the urging of plaintiff’s counsel the trial judge declared the defendant was an adverse witness because he was an adverse party but that the defendant could not be impeached as to conviction of crime unless his testimony was inconsistent with some prior testimony. Accordingly, plaintiffs counsel questioned defendant about his previous testimony in a deposition and finally the court permitted plaintiff’s counsel to impeach the defendant by asking him if he had ever been convicted and how many times.

It was error to permit plaintiff in her case in chief to introduce evidence of the defendant’s bad reputation for truth and veracity because the defendant’s veracity was not relevant to any issue in the cause being tried and the defendant had not testified and his credibility was not in issue. A witness may not be impeached before he has testified.

Where the defendant was called solely as a rebuttal witness, it was also error to permit plaintiff to elicit testimony which in no substantial way contradicted or rebutted the testimony of the defendant’s only witness, Deputy Caraway. This error in permitting the plaintiff to call the defendant as a so-called rebuttal witness and then to elicit non-rebuttal testimony did not serve to correct the first error in permitting a premature and unwarranted impeachment as to the defendant’s reputation for veracity nor did it become a proper basis for then permitting impeachment as to conviction for crime.

Florida Rule of Civil Procedure 1.450(a), the “adverse witness” rule, provides:

A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.

This subsection of rule 1.450 was adopted from former Fed.R.Civ.P. 43(b) (1937). In connection with the enactment of the Federal Rules of Evidence in 1975, Federal Rule 43(b) was abrogated as it was considered no longer needed or appropriate because the scope of cross-examination was covered by Fed.R.Evid. 611(b); the interrogation of an adverse party or witness identified with him was covered by Fed.R.Evid. 611(c) and impeachment was treated in Fed. R.Evid. 607. The abrogation of Federal Rule 43(b) because of the enactment of the cited provisions of the Federal Rules of Evidence also implicitly serves to construe the purpose of the former federal rule and of our present rule 1.450(a) which is based on the former federal rule. Section 90.-612(2), Florida Statutes (1981), now provides for the scope of cross-examination, substantially adopting the substance of Fed. R.Evid. 611(b). Section 90.612(3), Florida Statutes (1981), now provides generally for leading questions only on cross-examination and recross-examination and the topic of who may impeach is now provided in section 90.608, Florida Statutes (1981). Accordingly, consideration should be given to the elimination of the second sentence in Florida Rule of Civil Procedure 1.450(a) for the same reason that Federal Rule 43(b) was abrogated. The first sentence of Florida Rule of Civil Procedure 1.450(a) would then specifically provide for the use of leading questions as to unwilling or hostile witnesses, as an exception provided by rule of court as is explicitly permitted by section 90.612(3), Florida Statutes (1981). Actually the first sentence in rule 1.450(a) would be slightly improved by being replaced with the last sentence in Fed.R.Evid. 611(c), which provides:

where a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Actually, peculiarly, the Florida Evidence Code has not heretofore been applicable to this particular action because when our code was first adopted it applied only to civil actions accruing after July 1,1979, and the cause of action in this ease accrued on May 10, 1978. Although section 90.103, Florida Statutes (1979), was amended in 1981 to make the Florida Evidence Code applicable to civil actions pending on or brought after October 1, 1981, this action had already been tried by that date. However, the 1981 amendment to the statute would make the Florida Evidence Code applicable to any retrial of this case. While the Florida Evidence Code was not applicable to the trial of this case below, we interpret the supreme court’s approval of the Florida Evidence Code, 376 So.2d 1161 (Fla.1979), without the amendment of Florida Rule of Civil Procedure 1.450(a) to mean that provisions of both the statute and the rule need not, and should not, be construed to be inconsistent. The proper application of Rule 1.450(a) as to leading questions, contradictions and impeachment is simplified by looking to substance rather than to form and by bearing in mind the proper purposes and functions of these tools and rules of evidence.

LEADING QUESTIONS: Although a party rarely has a choice in selecting the witnesses needed to prove his case, nevertheless a party who calls a witness is expected to have reason to believe that the witness will give testimony favorable to that party without the need to use leading questions. From this assumption comes the general rule that a party may not ask a witness a leading question on direct or redirect examination. Fla.Stat. § 90.612(3)(a), (1981). On the other hand there is a similar assumption that a witness did give favorable testimony to the calling party and that the adverse party generally needs, and should be given, the advantage of using leading questions on cross-examination of that witness in the interest of a proper search for the truth. Fla.Stat. § 90.-612(3)(b), (1981). There is also a general principle that a party who calls a witness as his own vouches for that witness’ credibility. It is for this reason that there is a traditional rule against impeaching a party’s own witness. Fla.Stat. § 90.608(1), (1981). There was a broad primitive notion that a party was morally bound by the statements of his witness. The application of this latter rule made it very hazardous to call an adverse party as a witness. However an adverse party is not always an adverse witness. An adverse witness means only one who gives evidence on a material matter that is adverse, unfavorable or prejudicial to the party calling the witness. See Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (Fla.1945); Johnson v. State, 178 So.2d 724, 728 (Fla. 2d DCA 1965). Cf., Direct Transport Company of Florida v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964), cert. dismd., 176 So.2d 68 (Fla.1965). A knowledgeable but unwilling, reluctant or recalcitrant witness should always be subject to interrogation by leading questions without regard to who called the witness or as to the witness’ status as a party or identity with an adverse party or the possible interest the witness may have in the outcome of the case. Conversely, an obviously willing, forthright and candid witness need not, and should not, be led without regard to the witness’ formal status or interest or whether the witness is being directly examined by the person calling the witness or cross-examined by anyone else. Thus, as Wigmore concludes, the test for permitting or prohibiting leading questions is ultimately and essentially independent of the superficial circumstance as to which party originally put the witness on the stand. 3A Wigmore, Evidence § 909 (Chadbourne Rev.1970).

CONTRADICTION: In a similar practical vein, a party should be able to present all available evidence that tends to support the party’s case without regard to the fact that it may tend to impeach because it may contradict previous testimony of a witness called by that party (Fla.Stat. § 90.608(l)(a), (1981)), or because it proves that material facts are not as testified to by some previous witness called by the party. Under prior law a party calling a witness that proved adverse was required to satisfy the trial judge that the calling party had been surprised or entrapped by the testimony before the calling party could introduce a prior inconsistent statement of that witness. Although presenting a prior statement of the witness inconsistent with his present testimony is a general method of impeachment, see § 90.608(l)(a), Fla.Stat. (1981), its use as to a witness that was presumed to be helpful but who turned out to give prejudicial testimony is often not introduced so much for true impeachment as for the purpose of getting the prior statement before the jury for its consideration as substantive evidence. In any event, the previous requirement of surprise in order to introduce prior inconsistent statements has now been eliminated by present section 90.608(2), Florida Statutes (1981).

IMPEACHMENT: The purpose of impeachment is to attack the credibility of a witness so that the trier of fact will accord his testimony less weight than otherwise. Accordingly, there is a good reason for a party to impeach a witness giving testimony harmful or adverse to that party but there is no proper purpose of impeachment in order to attack a witness that has not given testimony prejudicial to the person seeking to impeach the witness, and this is true without regard to who called the witness or the adverse witness’ status. If a party believes a potential witness, whether a party or not, will not give testimony beneficial to that party or that the potential witness is not credible, the party should not call that witness. If a party believes the adverse party is credible and may give favorable testimony and, therefore, in good faith calls that party as a witness and the party-witness merely fails to give beneficial testimony but gives no prejudicial testimony, the calling party should not for that reason impeach the party-witness’ character by evidence as to bad reputation for truthfulness (§ 90.609, Fla.Stat. (1981)) or prior conviction of crime, (§ 90.610, Fla.Stat. (1981). Where an adverse party is in good faith called by a party to give favorable testimony and through no fault or design of the calling party the adverse party gives testimony prejudicial (unfavorable) to the calling party (either on direct examination by the opposing party, on cross-examination or in the adverse party-witness’ case in chief), notwithstanding the restriction in section 90.608(1), Florida Statutes (1981), against a party impeaching his own witness, the calling party may not only contradict but may also impeach the adverse party-witness by attacking his character by evidence as to bad reputation for truthfulness (§ 90.609) and prior conviction of crime (§ 90.610).

In summary, section 90.608(1), Florida Statutes (1981), recognizes the general rule that a party cannot impeach his own witness. Section 90.608(2), Florida Statutes (1981), recognizes one limited exception permitting impeachment of any adverse witness (which includes an adverse party) by contradiction by other evidence or by a pri- or inconsistent statement. Florida Rule of Civil Procedure 1.450(a) permits a further exception where an adverse party or a witness closely identified with a corporate or partnership or association adverse party becomes an adverse witness, as defined above, in which case the adverse party-witness may not only be contradicted but may also be impeached as to a bad reputation for veracity (§ 90.609) and as to conviction of crime (§ 90.610). This is without regard as to whether such adverse testimony by the adverse party-witness is given upon direct or cross-examination or in the case in chief of the calling party or in the case in chief of the adverse party-witness.

Rule 1.450(a) merely reads that an adverse party when called as a witness may be led, contradicted and impeached “in all respects as if he had been called by” his own side. This refers to the procedural aspect and sequence of examination and was intended to authorize a party to call an adverse party and use the methods of cross-examination, i.e., leading questions and contradiction on direct examination. See Wig-ginton, New Florida Common Law Rules, 3 U.Fla.L.Rev. 1, 26 (1950).

However, Florida Rule of Civil Procedure 1.450(a) was not intended as a grant of the right to impeach, arbitrarily and wantonly, when not previously permitted under the law of evidence for the proper purpose of reducing the credibility of a witness giving prejudicial testimony. The reference to impeachment means that if the adverse-party-witness does elect to give prejudicial testimony at any stage of the trial, the calling party is not barred from impeaching the party-witness by the mere fact that the party-witness has been called under this rule. This rule should not be read to encourage or permit a party who believes that an adverse party, who has not elected to testify, is not credible and if called as an adverse witness will not give testimony favorable to the calling party, to, nevertheless, call the adverse party as a witness for the ulterior and improper purpose of wrongfully attacking that adverse party’s present moral character or propensity in the guise of impeaching him as to a bad reputation for veracity and as to his prior conviction of crime. Rule 1.450(a) does not alone make the present bad moral character or propensity of every adverse party an issue in every case without regard to the cause of action or whether the adverse party has testified at all or whose testimony is not prejudicial to the party who desires to impeach him. Rule 1.450(a) is not a license for counsel for one party to predatorily call an adverse party as a witness and then, in the absence of prejudicial testimony, to harrass and abuse and “impeach” the adverse party by attacking his moral character by evidence of a bad reputation for truthfulness and conviction of crime. A party ought not have the coercive power over even an ordinary non-party witness he calls to attack and blacken, embarrass and defame the witness and destroy his credibility by impeachment if the witness fails to testify as wanted. This should also apply to a party-witness who by improper impeachment, in addition to damage to character, stands to risk the consequence of an unfair trial and of a judgment and an award of damages based on prejudice against the person of the party rather than on the relevant facts and law.

Notwithstanding that present section 90.608(2) eliminates the necessity of surprise in order to use prior inconsistent statements to impeach an adverse witness, we believe the following statement from Foremost Dairies, Inc., of the South v. Cutler, 212 So.2d 37 (Fla. 4th DCA 1968), is still applicable and especially so in this case:

A party will not be permitted to put a witness on the stand knowing that his testimony will be adverse and then claim surprise in order to impeach such witness. This is particularly true when the procedure is nothing more than a device or artifice to get into evidence before the jury that which would otherwise be inadmissible. Id. at 40.

It is clear from the record that the defendant did not elect to testify and the plaintiff did not call the defendant because she thought he was credible and would present favorable testimony either as to her case in chief or in rebuttal to the testimony presented by the defendant’s sole witness, Deputy Caraway. The plaintiff had, before calling the defendant on rebuttal, already impeached his credibility by showing a bad reputation for truthfulness in her case in chief. A careful reading of the entire trial transcript of plaintiffs interrogation of defendant as a rebuttal witness convinces us that the primary objective and thrust of that examination was to attempt to show that the defendant’s testimony at trial was inconsistent with his testimony in some deposition or some prior trial and to do this only in order to meet the trial judge’s condition precedent to being able to further impeach the defendant as to his five or six prior convictions of crime. Perhaps because of his bad reputation and criminal convictions the defendant is a “bad guy” but there is no “bad guy” exception to rules of evidence and procedure designed to insure a fair trial and everyone is entitled to be treated fairly under law in a court of law.

Count II of the information doe snot allege a false imprisonment based on a wrongful confinement of plaintiff by the direct personal act of the defendant but only that the defendant wrongfully instigated and procured her arrest and imprisonment. Count I alleges malicious prosecution allegedly resulting from the same arrest. By its special verdict the jury awarded separate compensatory and punitive damages for both causes of action. Defendant’s claim on appeal of error in the denial of his motions for a directed verdict as to both counts raises the question of whether the defendant can be liable for both malicious prosecution and false imprisonment under the facts alleged and presented in this case. Although alike in some respects actions for false imprisonment and actions for malicious prosecution are distinct and the difference between them appears to relate to the regularity of the legal process under which the plaintiff’s interests have been invaded. W. Prosser, Law of Torts 835 (4th ed. 1971). One who maliciously institutes a criminal prosecution is deemed to intend to cause an arrest, which is a normal incident of a criminal prosecution, and the actor is liable for the confinement caused by the arrest only because it is a part of the damages caused by the malicious prosecution. Therefore, unless the defendant takes an active part in the service of a warrant issued as a result of the maliciously instituted criminal prosecution, his liability for the arrest is enforced only by way of greater damages for the malicious prosecution caused by the arrest and confinement. The liability for the arrest and confinement caused by the malicious institution of criminal proceedings is part of the damages resulting from malicious prosecution because in such a case, while the prosecution may have been commenced and carried out maliciously, the imprisonment is under process regular and in legal form issued by lawful authority and the resulting imprisonment is not false. To the contrary, a false imprisonment is a trespass committed by an unlawful arrest and confinement without legal authority. Notwithstanding that the two causes of action are distinct, because damages for resulting confinement are recoverable in a malicious prosecution action in which the existence of legal authority is implied, while the finding of a false imprisonment based on an arrest implies a lack of legal authority or lawful process, the recovery on one cause of action is generally held to bar recovery on the other when both relate to the same factual event. See 52 Am.Jur.2d Malicious Prosecution, § 3 (1970); Restatement (Second) of Torts § 35 (1977), comment on subsection (1); § 37, comment b; and § 654, comment e.

Section 901.15, Florida Statutes (1979), authorizes a peace officer to arrest without a warrant when he has probable cause to believe that a felony has been committed and that the person arrested has committed it. Such an arrest is lawful even though the officer in good faith relies on false information maliciously supplied by another. If the arrested person is legally harmed by a confinement resulting from such arrest he should have a remedy. If the officer is innocent and blameless the confined person should have a remedy in the form of a cause of action against the person maliciously causing his confinement but the confined person neither needs, nor is entitled to, two causes of action for that one wrongful act. The Restatement (Second) of Torts (1977), § 654(2)(c) takes the position that such an arrest is lawful and that there is no cause of action for false imprisonment but that the lawful arrest on the criminal charge is the institution of criminal proceedings and is the basis for an action for malicious prosecution. This may or may not be consistent with the practice in Florida. Here it is generally considered that, except with reference to certain misdemeanors and violations of city and county ordinances, criminal prosecutions are commenced with the filing of an information or indictment based upon a charge decision made by a state attorney or grand jury, or at least an arrest pursuant to a summons or arrest warrant issued by a committing magistrate. In S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (1938), Powell sued Kress for false imprisonment and malicious prosecution. In holding that the plaintiff failed to state a cause of action for malicious prosecution the Florida Supreme Court said:

The summoning of a policeman and delivering the plaintiff to his custody and informing the policeman that the plaintiff had attempted to pass a counterfeit five dollar bill was not the commencement of a judicial proceeding, and did not involve the issuance of legal process, so as to constitute malicious prosecution.
180 So. at 761-762.

Because Powell’s freedom of action was certainly significantly curtailed she should, at least today, be considered to have been arrested. Kress does not state that Powell was not arrested and if Kress is considered to have involved an arrest then Kress stands for the proposition, contrary to the Restatement, that an arrest does not initiate a criminal prosecution. However this may not be a substantive matter because, if an arrest does not initiate a criminal prosecution in Florida, a person injured by a confinement following an arrest without a warrant made by an officer whose probable cause was based on false information maliciously supplied by a wrongdoer should be considered wrongful (whether or not the arrest is considered valid) and the confined person should have a cause of action for the wrongful confinement against the wrongdoer who indirectly caused it. The difference would relate only to the theory under which the cause of action is brought and alleged. Under either theory the plaintiff would have one but not two causes of action. A party may set up alternatively, in the same action, two or more causes of action (Fla.R.Civ.P. 1.110(b)) but the pleader must, at some appropriate time before the jury is instructed, make an election where, as here, he is not entitled to recover damages on both causes of action.

Accordingly, the judgment below is reversed and the cause is remanded for a new and fair trial consistent with this opinion.

REVERSED AND REMANDED.

SHARP, J., concurs specially with opinion.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

SHARP, Judge,

concurring specially.

I agree with Judge Cowart’s opinion that under the facts proven in this case, Carroll should not recover for both false imprisonment and malicious prosecution; and that they are mutually exclusive, or alternative causes of action. Further, I agree that the trial court committed reversible error in permitting Erp to be called as a rebuttal witness when Erp’s testimony rebutted nothing in his case in chief, and in fact, corroborated it. 32 Fla.Jur. Trial § 45 (1960).

This was clearly harmful error in Erp’s case. It allowed the plaintiff to justify the clearly erroneous bad character testimony, offered as part of her main case rather than on rebuttal, prior to Erp’s ever testifying. And it allowed her to impeach Erp by making him admit he had previously been convicted of crimes. I am in sympathy with Judge Upchurch’s opinion that Erp apparently behaved in an outrageous manner to the plaintiff in this controversy, but that does not justify courts abandoning well-established rules of evidence.

However, I am unwilling to agree with Judge Cowart that under Florida Rule of Civil Procedure 1.450(a) there are limitations to the right of a party to impeach an adverse party by any means, once he is properly called to testify. See Fed.R.Evid. 607, 611 The rule itself contains no such limitations. Indeed, a recent authority states:

The Adverse-Party Witness called by you must not be confused with the merely Adverse (Hostile or Unwilling) Witness discussed in the preceding Section of this Chapter. The right to impeach the Adverse-Party Witness derives from Fla.R. Civ.P. 1.450(a) and not from Florida Evidence Code 90.608. As a result, such impeachment is not limited to the two methods approved by 90.608 (contradictory evidence, and proof of prior inconsistent statements); nor by the foundational requirements imposed by that statute. (Emphasis original).

2 K. Hughes, Florida Evidence Manual § 194 (1975); see also 2 S. Gard, Florida Evidence § 20:01 (1980). Foremost Dairies, Inc., of the South v. Cutler, 212 So.2d 37 (Fla. 4th DCA 1968), cited by the majority opinion, dealt with a non-party witness. In any event, however, it is not necessary to address this issue in this case because the other errors mandate a reversal.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. While perhaps the majority is technically correct, I conclude that any error was only that, a technical one, which was harmless and would not have materially affected the ultimate outcome of the trial. Mr. Erp’s conduct was despicable, especially against Mrs. Carroll, whose only offense was to request payment of a legitimate debt owed by Mr. Erp to her husband.

There was testimony that at the time the Carrolls were stopped by the police, Mr. Erp came screeching up in his Corvette on the wrong side of a four-lane street immediately in front of the Carrolls’ vehicles (Mrs. Carroll’s truck was stopped behind her husband’s truck). When the Carrolls were told to pull their vehicles into a nearby parking lot, Mr. Erp followed, began jumping up and down, pointed at Mrs. Carroll and told the officer, “you get her too. She was in on it, too, she’s part of it.” He then pulled out a wad of money from his wallet and shaking it at Mrs. Carroll, yelled, “See. I got your goddamn money. I got your goddamn money” and “I’ll fix you lady. I’ll fix you.” He stood by and watched as the Carrolls were arrested and taken to jail.

This type of behavior carries a high price. I doubt that any jury would place a lower value upon it, even if the trial were completely free of error. I would unhesitatingly affirm.

      . The facts are not necessary to understand the points of law on appeal but may help. Defendant, owner of a retail clothing store, owed plaintiffs husband for rental of a sign. Plaintiff went to defendant’s store to collect the debt at a time when defendant was not at the store which was attended by defendant’s employee Greg Ramputi. Plaintiffs husband came to the store, took merchandise to the counter, had a sales slip written, told Ramputi to charge the merchandise against what was owed for sign rental, and over Ramputi’s objection, forcefully took the merchandise out of the store without paying for it. Ramputi called defendant or the police or both and later the defendant was present and communicated with an Ocala city policeman when plaintiff and her husband were stopped on a BOLO. When Marion County Deputy Sheriff Caraway later arrived at the scene the Ocala policeman left without communicating with Deputy Caraway. Deputy Caraway, who had earlier talked with Ramputi at the store, testified he made the decision to arrest plaintiff and her husband solely on the information he had obtained from Ramputi and from plaintiff and her husband and that he, Deputy Caraway, never met nor communicated with appellant.

      . On the date in question, when the defendant first contacted the plaintiff at the point the plaintiff was later arrested, a City of Ocala policeman first arrived on the scene in a black and white police car. Then and there occurred the conduct referred to in the dissent to this opinion. The defendant had some conversation and contact with the city policeman. That policeman drove off when Deputy Caraway arrived without communicating any information to the deputy. Therefore the behavior that offends the dissent was not known to, or considered by, Deputy Caraway who alone made the decision to arrest the plaintiff. The defendant had, in his prior deposition, referred to the Ocala policeman as being a deputy. At trial the defendant’s explanation that the person he referred to as a deputy during his deposition was not Deputy Caraway but the Ocala city policeman was largely the “inconsistency” in the testimony that was used as the basis for allowing the defendant to be impeached.

      . See Cox v. State, 58 Fla. 33, 50 So. 875 (1909); Bryant v. United States, 120 F.2d 483 (5th Cir.1941).

      . Section 90.608(1), Fla.Stat. (1981) which prohibits the party calling the witness from impeaching him is arguably inconsistent with Rule 1.450(a) which permits a party to call an adverse party as a witness and impeach him.

      . Plaintiffs counsel also strenuously sought to question defendant on many immaterial matters (such as whether defendant ever telephoned plaintiffs home) claiming that if defendant testified untruthfully about those matters he would be, or could be, impeached. Evidence as to immaterial matters is inadmissible for any purpose and especially not for the purpose here asserted. Notwithstanding that the witness is an adverse party the questioner is bound by answers given to questions about matters collateral or immaterial to the factual issues in the case. See Gelabert v. State, 407 So.2d 1007 (Fla. 5th DCA 1981). Although some counsel favor the practice a witness cannot properly be questioned about collateral or immaterial matters for the purpose of “testing his credibility” or impeaching the witness by contradition or otherwise as to his answers.

      . See 3A Wigmore, Evidence § 902 (Chad-bourne Rev.1970).

      . § 90.608(l)(e), Fla.Stat. (1981). In fairness one ought not be bound by his voucher of á •witness’ credibility when he discovers the witness’ untrustworthiness after putting him on the stand. Further, the ends of truth are not served by binding a party to an error in calling a witness and it is the business of a court of justice, in self-respect, to permit the seeking of all sources of correct information, whatever the tactical mistakes of the adversaries. See also 3A Wigmore, Evidence § 907 (Chadbourne Rev.1970).

      . § 90.09, Fla.Stat. (1974) (amended 1978).

      . This was formerly considered improper because the prior statement was considered hearsay but some prior statements are now not within the statutory definition of hearsay. See § 90.801(2)(a), Fla.Stat. (1981).

      . See, e.g., Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967).

      . In that circumstance the calling party is not bound by that party-witness’ testimony and may introduce statements of the witness as described in section 90.801(2) or admissions under section 90.803(18), and such statements and admissions are incidentally considered as impeachment under section 90.608(l)(a), and may also introduce proof by other witnesses as to facts material to the issues in the cause although such material facts are not as testified to by the party-witness and are incidentally considered impeachment under section 90.-608(l)(e), Florida Statutes (1981).

      . A person’s bad character is always relevant to indicate his probable doing of a bad act but an auxiliary legal policy of avoiding undue prejudice excludes it from evidence except in rebuttal; while this policy does not apply to impeachment of one who is only a witness and hence has nothing to lose from a prejudicial trial, it does apply to a party-witness, such as appellant Erp, who is accused of bad acts in a civil action, the same as to a defendant accused of crime. 3A Wigmore, Evidence § 877 (Chadbourn Rev.1970); § 90.404(l)(a), Fla. Stat., (1981); Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), cert. den. 413 So.2d 877 (Fla.1982).

      . Malicious here means without reasonable cause and for a purpose other than that for which the criminal prosecution is provided and, therefore, out of ill will, animosity and with a desire to do harm for harm’s sake.

      . See also Restatement (Second) of Torts (1977) § 35 comment as to subsection (1).

      . See Florida Rules of Criminal- Procedure 3.140(a) and (c)(2).

      . See Florida Rule of Criminal Procedure 3.120.

      . Under certain circumstances a person may be able to recover for both false imprisonment and malicious prosecution on closely related facts. If an arrest is not considered to initiate a criminal prosecution one can be liable to another for damages for maliciously causing a confinement to result from an arrest. Then the wrongdoer could thereafter also maliciously cause the formal initiation of criminal charges causing legal damages in addition to those resulting from the first wrong.

      . Previously the right to call an adverse party and cross examine him was provided for in Federal Rule of Civil Procedure 43(b), which contained identical language as the current Florida Rule of Civil Procedure 1.450(a). The federal rule has been abrogated because its provisions are covered in the current Federal Rules of Evidence 607 and 611. Neither 607 nor 611 limits the right to impeach in any way an adverse party called as a witness in the opponent’s case. 10 J. Moore, Moore’s Federal Practice § 607.02 (2d ed. 1982).